Batts v. Superior Court

• Decision Date: 09 February 1972
• Citation: 100 Cal.Rptr. 181,23 Cal.App.3d 435
• Court: California Court of Appeals Court of Appeals
• Parties: Steven William BATTS, Petitioner, v. SUPERIOR COURT OF ORANGE COUNTY, Respondent; PEOPLE of the State of California, by Their Attorney, Cecil HICKS, District Attorney for Orange County, Real Party in Interest. Civ. 11825.

Page 181

100 Cal.Rptr. 181

23 Cal.App.3d 435

Steven William BATTS, Petitioner, v. SUPERIOR COURT OF ORANGE COUNTY, Respondent PEOPLE of the State of California, by Their Attorney, Cecil HICKS, District Attorney for Orange County, Real Party in Interest.

Civ. 11825.

Court of Appeal, Fourth District, Division 2, California.

Feb. 9, 1972.

Hearing Denied April 6, 1972.

Frank L. Williams, Jr., Public Defender of Orange County, and David W. Duncan, Deputy Public Defender, for petitioner.

Cecil Hicks, Dist. Atty. of Orange County, Michael R. Capizzi, Asst. Dist, Atty., and Oretta D. Sears, Deputy Dist. Atty., for respondent and real party in interest.

OPINION

GARDNER, Presiding Justice.

Petitioner was charged with possession of marijuana and restricted dangerous drugs. A motion for dismissal under the provisions of section 995 of the Penal Code was denied and the petitioner filed a petition for writ of prohibition.

At 9:30 p.m. on April 9, 1971, Officer Jacobs of the Newport Beach Police Department saw a Volkswagen van parked in a public parking lot. As he walked past the van, he observed that the rear portion behind the front seat was entirely closed off by window curtains. However, he could see lights inside and could hear voices. He observed the front curtain on the right side of the vehicle pulled back and an individual look out at him and then quickly replace the curtain. He knocked on the right front window of the vehicle, identified himself as a police officer, and stated that he wished to talk to the individuals inside. Approximately 15 seconds later, a juvenile opened the window and as he did so, the officer smelled a strong odor of burnt marijuana coming from inside the vehicle. The officer asked the persons inside to come out and as they did so, he observed a small brass pipe and some marijuana fragments. A search of the vehicle revealed hashish. At the station, hashish and LSD were recovered from the person of the petitioner.

Officer Jacobs testified that the City of Newport Beach has an ordinance which makes it unlawful for any person to sleep in an automobile parked in any place in the City of Newport Beach or to sleep on the beach between the hours of 9 p.m. and 9 a.m.

Petitioner contends that when the officer knocked on the window of the van, he detained the individuals inside, and that since the officer was not aware of sufficient facts to make a detention legal, that the evidence which resulted from the knocking on the window of the van must be excluded.

In People v. Manis, 268 Cal.App.2d 653, 74 Cal.Rptr. 423, and People v. Henze, 253 Cal.App.2d 986, 61 Cal.Rptr. 545, Mr. Justice Macklin Fleming made a classic contribution to the administration of criminal justice. In these two cases, he traced with vivid clarity the escalating scale of police activity permissible in the field of questioning, detention and arrest when these activities arise from suspicious actions on the part of the citizen. Mr. Justice Fleming apparently did not think it was necessary to point out that there are many contacts between police and citizen which are in no way related to crime but from which evidence of crime may result. However, the importance of drawing a distinction between these contacts and 'detentions' is now clear. This case is another in a long series of cases presented to this court in which defense counsel equate every contact between police and citizen as a 'detention' and thus demand that the police establish a Henze foundation ¹ before they can carry on any conversation with the citizen.

Innumerable contacts between police and citizens are intrusions into the citizen's privacy but these contacts have nothing to do with suspicion of criminal activity. They arise from the police officer's duty to maintain peace and security, to protect citizens from harm or annoyance and to do all those innumerable miscellaneous tasks which society calls upon the police to do which have nothing to do with the detection of crime. For example:

(1) A police officer knocks on a door to borrow a ladder to get a neighbor's cat out of a tree, and when someone comes to the door, the officer observes evidence of crime within the house.

(2) A police officer awakens a citizen to deliver a message of a death in the family (a common responsibility for police officers) and when the citizen comes to the door, the officer observes evidence of crime.

(3) A police officer stops a young man from throwing a frisbee or a football on crowded beach or in a crowded park and notices the young man has the symptoms of being under the influence of a narcotic. A search after arrest reveals contraband.

(4) A police officer stops a pedestrian to warn him about proceeding into a neighborhood where muggings are frequent and notices he has the symptoms of one under the influence of a narcotic. A search after arrest reveals contraband.

(5) A police officer gets an irate doglover out of bed at midnight to ask him to quiet his...