*1 Dist., Apr. 1971.] Div. Two. No. 18246. Second [Crim. PEOPLE,
THE Plaintiff Appellant, ROSENFELD, Defendant
DANIEL MICHAEL Respondent.
Counsel General, C. and Evelle J. William Lynch Attorneys Thomas Younger, James, General, E. Assistant Evelle J. District At- Attorney Younger, Wood and Donald J. District torney, Harry Deputy Attorneys, Kaplan, Plaintiff and Appellant. Defender, McCormick,
Richard Public James L. Mark Over- Buckley, S. land, Shabo, Leighton Defenders, A. and Harold E. Public Nugent Deputy for Defendant Respondent.
Opinion FLEMING, J. an order appeal and dis suppressing (Pen. Code, information defendant. (7).) subd. § missing against on defendant’s During hearing Code, motion to (Pen. suppress 1538.5), Officer of the Los- § testified Angeles Joseph he and his behind patrolling alley apartment buildings in an area of where garages Hollywood there open been “quite a few from motor vehicles.” About burglaries saw defendant they p.m. from, and look in the direction behind walk out back between the buildings. and walked He then turned vehicle. was, event to his of this according on-the-scene interpretation testimony: to avoid if the defendant was It to me as attempting
“. . . *3 us.”1 of contact with any type asked him their vehicle. Officer Toney called defendant
The officers there, was he and defendant said he looking was doing lived, defendant said asked his friend named Dave. where friend When or tools. A defendant revealed no he didn’t know. weapons pat-down identification, driv- defendant a California asked for Toney produced between the walked over er’s license. At this Toney’s partner point defendant to stand to the rear directed police buildings, Toney asked judge vehicle on the driver’s side. During hearing not, he at this released defendant. Toney had Toney why juncture, as follows: replied vehicles. It’s an alley-
“A. It’s a known area of from motor burglaries felt that and there is a lot of so we way, garages, open garages, cars, to break so we held him have been into trying until could check the area out and there for further if find friend Dave.” see we could his testified that he did not have crime although also specific mind, check” while his he decided to run a “want on defendant partner that, into the
was the area as he his head and arm checking put he saw defendant take his vehicle to use the radio speaker, police hand out of his over the and throw a substance” jacket “plastic pocket absent, trunk car. At this moment was rear police partner defendant and and he it best for his own to handcuff thought safety then searched in the vehicle. With flashlight Toney him place police bag and found a containing marijuana. ground plastic was arrested and with of mari- Defendant thereupon possession charged juana. initial defendant was lawful. The officers were
The detention of dark; (1) it and therefore faced with the facts: was following 9 p.m. which (2) the was an alleyway many garages location open provided (3) for the of car car burglaries; burglaries commission opportunity hearing 1 Toney was in he transcript preliminary uniform. The shows that vehicle, patrol police and his which were on black-and-white marked stopped additionally alley headlights transcript was in the indicates with its off. The walking they garage first where vehicles when saw defendant he was out of a parked. occurred with (4) in the when defendant recently great frequency vicinity; vehicle, saw the he reversed his into the and headed approach alley for the area from between which he had emerged. just mindful, are factor,
We in relation to fourth of our particularly Court’s recent that the “. . admonition . law more than Supreme requires a mere ‘furtive to constitute cause to search or to gesture’ probable (People arrest.” (Kiefer) 3 Cal.3d Cal.Rptr. 449].) P.2d No one of the four factors alone would have justi fied the initial detention. The mere act of one’s back on turning officer, even to the officer the seems be a though action one, Moore, “nervous” is insufficient to detention. are, however, Cal.2d P.2d We that the initial bench based say detention at on mere unprepared *4 hunch. Notwithstanding defendant’s claim that hour of is “con 9 p.m. ventional,” it is and is a conventional hour night-time, although 9 p.m. it serves just as to hide criminal as does 11 or effectively activity p.m. 2 a.m. Darkness a pertinent determining circumstance aof nonconsensual (People propriety by detention temporary, police. 9, Henze, Cruppi, 42]; People 265 12 v. Cal.App.2d Cal.Rptr. [71 v. 986, Darkness, 253 989 together Cal.App.2d Cal.Rptr. [61 (Williams 709, furtive Superior conduct v. 274 712 Cal.App.2d 489]), the for the crime Cal.Rptr. high [79 potential particular suspected Manis, v. (People 423]), 660 Cal.App.2d Cal.Rptr. and the known rate of thefts open garages, high from open garages, furnished sufficient reason to warrant detention for investi temporary While there is sometimes a delicate balance in the gation. necessary of accommodation between an individual’s and process privacy “. . . the need of in these troubled times ... urgent society prompt Woods, (People effective detection crime” v. police Cal.App.3d 264]), 835-836 facts at bench justified defendant. temporarily detaining
After the initial defendant fortified the objective suspicions he was in the for Dave by stating neighborhood looking alone, but did not know where Dave lived. such a remark would Standing evasive, not be under necessarily deemed but the circumstances previously detailed it be if the would officers defendant’s surprising ingenuous accepted in, from, statement as a full for his retreat explanation appearance the dark were was alley they Toney’s patrolling. properly his duties when he went sensibly discharging between Dave, see if he could find in all Dave’s since would probability presence cleared have defendant of suspicion wrongdoing. reasonable inferences. The trial ob by judge
This is buttressed point view, check” was in fact a method of served that in his “want until his came back and [Toney’s “. . . time killing buddy partner] into, he had cars broken anything whether found reported in, be looked like someone the defendant might breaking might the, I those lines. think record check was Something along lookout. both while the came officer back just busy something keep people ” ‘No, there’s on there.’ If we nothing going accept reported, court’s evaluation to this issue v. testimony, relating (Kiefer) supra, 828), at Cal.3d it is p. apparent officers to do out on-the-scene carry attempting crime rate area of high in a the activities of a who investigation person into vehicles. It is reasonable they breaking suspected parked prevent inference that the officers were commission attempting Ohio, (Terry a crime duration. timely investigation brief Woods, 1868]; U.S. 1 see L.Ed.2d S.Ct. generally, supra, 6 837.) these think the Under circumstances we in a deserted at of a discovery alleyway declaredly night person searching named mysterious Dave whose address he did not know stranger warranted further on-the-scene together with further tem a brief detention for porary period. *5 therefore the the reject legal
We conclusion trial court apparently reached on the of basis the facts it.2 The the before duration of further short, investigation was and the admittedly extent of the additional tem was facts porary detention minimal. On the before us believe the officers acted within their Unlike v. Lingo, 3 authority. 755], Pendergraft and v. Superior 15 Cal.App.3d 155], where a initiated detention was lawfully unlawfully [93 Cal.Rptr.
extended, the officers at bench had not their initial on-the-scene completed Prudence dictated that investigation. at the examine minimum the and nearby vehicles of for unlawful entry attempted signs unlawful the was in of this when entry. process doing incriminated irremediably himself his contraband. by jettisoning lawful,
Since the in its the of the mari- was seizure entirety search, did not about the itself lawful. juana come as result of was 2 Immediately prior ruling, inquired deputy its the court the district at of torney legal patted the basis for detention was after he had been defendant’s argument, down and found declared deputy’s “clean.” After the the trial court that there was (presumably legality some doubt in his mind as to the the extended of detention) gong and that in he to resolve that doubt defendant’s favor. 898, 899,
(Hester States, L.Ed. U.S. United S.Ct. is reversed. aside the information
The
setting
order
additional
and offer
brief
in the
HERNDON, J.
I
opinion
concur
comment.
States,
1688, 80 S.Ct.
L.Ed.2d
Rios v. United
In 1431], recited as follows: the facts are relevant Los ten o’clock of
“At about night February in unmarked officers, an dressed in riding clothes Angeles plain car, lot next to a taxicab in standing apartment observed parking in Los The Angeles. Streets at the of First and Flower house corner The officers saw for ‘narcotics activity.’ had a neighborhood reputation street, across the and down the walk look lot,, petitioner up seen the had ever before petitioner, Neither officer into cab. get for idea of his identity. reputation and neither of them Except kind of any had received information neither officer neighborhood, at that criminal engaged activity that someone suggest in any previous not participant time and place. They searching arrest or search warrants. of no crime.' were in They possession it their car the officers followed drove away, “The taxicab At intersection through city. a distance of about two miles The two officers cab for a traffic First State Streets the stopped light. sides on foot to from their car and opposite alighted approached the next himself as a In of the officers identified cab. One policeman. cab door was of events. The occurred a succession minute there rapid a recognizable dropped package narcotics petitioner opened; vehicle; as he one of the officers grabbed petitioner the floor of the *6 cab; and the officer retrieved the the the other package; from alighted officer drew his revolver.” first effect of the United States holds in
The decision of the Supreme cab and their act in of the approaching that the officers’ two-mile pursuit for of “routine interrogation” vehicle the detaining purposes for further to the District Court proceed- the case remanding In proper. the search thus “The validity the court declared as follows: ings, occurred, the of when the arrest the narrow turns question upon testi- an of the conflicting evaluation to that depends upon answer question there that of those who were night.” mony Cowman, 528], a
In situation, Rios United discussed similar factual case involving States, the and federal of other decisions of state supra, and a number officers the actions of in detaining courts wherein suspects that the at notwithstanding were held investigation proper purposes not to circumstances were sufficiently suspicious provide probable tendant In the of this review we commented as follows at cause to arrest. light rationale of all these decisions is an officer of 117-118: “The pages law, crime, the as well the to maintain employed peace prevent fact, after the has both the and the right duty as to criminals apprehend activities even reasonable of all though make suspicious fall sufficient to an arrest the nature thereof short may grounds or a search of the or the effects suspects. Experienced persons unusual and officers the naturally ability develop perceive is of enormous value in the difficult task of which protecting suspicious citizens. The benefit thereof should law-abiding security safety not be lost because the cold record before a court does not reviewing contain all the which have been so mean particularized may perceptions at the ingful scene.”* ROTH, P. J.I dissent.
The minutes recite that the trial court a motion “as a matter granted evidence,1 of law” the case because of a dismissed suppressing lack of evidence to which support during prolonged evidence was obtained. The suppressed People appeal.
The court counsel said: “. . . addressing out his identi- got fication, down, tools, him no to be they patted nothing loot, what (Italics him him?” gives detain [the officer] further added.) It that the trial court detention as appears original accepted It the evidence and dismissed the case because it was proper. suppressed infra), satisfied that cir- (see instinct” “police triggered by objective cumstances recited circumstances which majority, provided detention, for the basis should have been “satisfied original completely as a matter of law” when defendant was and when he thor- down patted identified himself. oughly dissent, did, court for the of this as the trial
Accepting
purpose
detention,
which is in and of itself
original
subject
propriety
*7
doubt,
defendant,
the
and all the evidence
trial court had the
Toney,
Cowman,
1 People
supra,
People
Superior
v.
approval
is cited with
v.
(Kiefer)
807,
729,
3 Cal.3d
at page
Cal.Rptr.
827
before frisked and he had identified himself. tained defendant been after after fact in a conducted The of of duty determining questions proceeding to of is for the trial court. The section 1538.5 the Penal Code pursuant disturbed on there is sub of the trial court will not be if rulings appeal Court, Superior 3 (People stantial them. v. evidence to Cal.App.3d support Garnett, 771]; People 488 v. 6 accord Cal.Rptr. Cal.App.3d conflicts a matter of in testimony Cal.Rptr. 769] [resolution court].) trial the for trial If the court is with charged the responsibility fact, concomitant of of it cannot determining stripped questions (Cf. which to draw inferences from the evidence is presented. power v. P.2d People Cal.3d Cal.Rptr. to 449].) At the court’s there substantial support bench of and “. deference trier of fact’s determination . . due to the ruling (Id. 828) .” . . at should weight p. credibility testimony order.2 lead an affirmance of the was 9 and dark. Defendant walked out “from
The record shows it p.m. car” the direction of the between “looked in buildings” back the two The officers buildings.” then “turned and walked between “told him come over to the car.” He did. In the called defendant and Dave, he defendant the officers was looking conversation told ensuing he The officers but where Dave lived “he said didn’t know.” when queried clear that he Toney then a search made pat-down proceeded tool or that might felt like a nothing anything weapon any type re- used to a car. and it is fair to assume in burglarize Concurrently, his California operator’s defendant Toney’s request, produced sponse identification, be- “went After license. the patdown “stand to rear ordered buildings” Toney tween neighbor- driver’s According Toney, vehicle side.” “a area of for motor vehicles.” hood was known burglaries acts, the described events and As to his subjective interpretation be a “I burglar”—“it testified: thought [defendant] Beasley, Cal.App.3d Cal.Rptr. 2 We are not 501] unmindful 617 [85 Code section 1385 should state which holds that a order entered under Penal minute However, Beasley, was in specifically the the dismissal the and the reasons for dismissal. bench, justice.” “as a “interests of At minute order is matter of law” reporter’s transcript specifically judge shows consider the evi the trial did not reporter’s transcript sufficient to further that the dence district detention. The shows attorney asked the this ...” and that specifically court “Is as matter of law law, replied: appears court an yes.” “As matter of It court entered order attorney of dismissal Code 1385 to afford district im under Penal section opportunity suppressing mediate to test its order the evidence under 1538.5. Superior Court, 338 [76 *8 to as if the defendant was to avoid of contact any me type attempting us” with in “Would then response prosecution’s questions: call “Yes.” kind of instinct?” you just police replied: in the record shows that there was not a well defined Nothing proper, between the which the defendant would walk-way have “right” use. there is no at all every Similarly, respecting the several factual we do not know issues: whether the car police parked feet or 100 from at which defendant first before he spot dark; retraced his do not know what defendant’s intentions steps—in conclusion, terms ever even with entering alley; Toney’s it, defendant saw the car3 and nothing fortify police thereupon officers, to avoid contact with the but based attempted nothing opinion “hunch” or “instinct.” We have before us defendant’s nothing respecting age appearance, demeanor—factors considered normally detention of this important Nor, course, kind. is there a that a crime had suggestion been recently committed, or that a had been other than state- prowler reported, ment that this was a “known area” for car burglaries, generally. we are not
Finally, told the record how the defendant by reversed the direction of his walk. this hiatus is critical since a Obviously, furtive or hurried retreat would have certainly justified prompt police. us, however,
What the record does tell is that the defendant promptly to the willingly orders of the to come over responded squad car; identification; that he valid that he answered produced every question him; frisk; addressed to that he submitted to a and that he cooperated the officers in every way.
Defendant’s inability Dave’s address was one of the supply apparently circumstances which led the trial court to believe that the deten- original recited, however, tion was In none of the facts defendant’s proper. including address, failure to Dave’s did court nor do I discern supply any- that could excite thing legitimately instinct” to the deten- “police prolong tion the actual and frisk beyond the concurrent identification. stop plus
To all that we do not know about the catalogue circumstances of this is to prolonged detention checklist of factors under- normally compile a valid detention lying and arrest. On issue of the length dispositive detention we have argument solely absolutely prosecution no evidence other than such can be as derived inferences. by pyramiding 3 Significantly, Toney’s testimony that he “saw” the car was stricken and he was allowed squad to state that the defendant looked in the car’s direction.
628 would, ex
To at bench in my opinion, detention justify prolonged Ohio, Terry tend the U.S. 1 limited and frisk defined in 392 stop v. York, 1868], 889, and Sibron New U.S. 40 v. L.Ed.2d S.Ct. [20 1889], found 88 S.Ct. L.Ed.2d plenary power of the duration of a in a state. The test of the lawfulness tempo the time beyond reasonably necessary detention is whether it extended rary under the out the initial detention. circumstances to carry purpose (Willet Court, 22]; ac Superior v. 2 Cal.App.3d Court, cord, Superior Pendergraft Cal. Cal.App.3d it, found, in facts that the 155].) The trial court terms of the before Rptr. detention not justified. prolonged trial judge
This is buttressed the considered judgment finding by be if there which is entitled to due deference and which should affirmed is supra, substantial it. support 488.) is citizen anywhere by policemen Whenever any stopped reasons, it is good a reasonable may objectively appear man for ad- two policemen a citizen encounter. unequal When stopped it’s whether he reason other than instinct” mittedly questionable no “police No in- at all for the reason very “police should demonstrated. stopped that, detention stinct” hope can prolonged events, if, it should the course of will even something turn up, itself to do so. happen
I would affirm order. Court was denied Respondent’s hearing by petition Supreme 9,1971. June