Cunha v. Superior Court, S.F. 22710

CourtUnited States State Supreme Court (California)
Citation2 Cal.3d 352,466 P.2d 704,85 Cal.Rptr. 160
Decision Date02 April 1970
Docket NumberS.F. 22710
Parties, 466 P.2d 704 Kenneth A. CUNHA, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent, The PEOPLE, Real Party in Interest.

Page 160

85 Cal.Rptr. 160
2 Cal.3d 352, 466 P.2d 704
Kenneth A. CUNHA, Petitioner,
The PEOPLE, Real Party in Interest.
S.F. 22710.
Supreme Court of California,
In Bank.
April 2, 1970.

Page 161

[466 P.2d 705] [2 Cal.3d 354] John D. Nunes, Public Defender, Andre T. La Borde and John Matzger, Asst. Public Defenders, for petitioner.

Thomas C. Lynch, Atty. Gen., Derald E. Granberg and John F. Henning, Jr., Deputy

Page 162

[466 P.2d 706] Attys. Gen., for respondent and real party in interest.

PETERS, Justice.

Petitioner was charged with possession of heroin. (Health & Saf. Code, § 11500.) The superior court denied his motion to dismiss the information (Pen. Code, § 995), and we issued an alternative writ of prohibition.

At 4:25 p.m. on July 23, 1969, Officers Lipgens and McCarthy of the Berkeley Police Department took seats at a window of a hot dog stand located between Telegraph Avenue and People's Park on Dwight Way. They were in plain clothes and were carefully observing pedestrians who walked by. Officer McCarthy had participated in 15 to 20 narcotic arrests in that area in three months; Officer Lipgens had participated in 30 to 40 arrests in six months. In a period of about one-half hour, they observed [2 Cal.3d 355] 10 to 20 people walk by the window, and suspected that four to six of these 'might possibly be dealing or something like that.' These four to six suspects were disregarded as soon as they passed from the officers' view.

Officer Lipgens, who was seated facing Telegraph Avenue, observed petitioner and a companion walking towards him on Dwight. His suspicion aroused by 'the manner in which they were walking up the sidewalk and talking to each other and looking around. * * * (l)ooking back and to the side as to see if anyone was watching,' Office Lipgens told Officer McCarthy to 'keep an eye' on the suspects as they passed the hot dog stand and proceeded toward People's Park--the direction in which Officer McCarthy was facing. '(H)aving some experience in this type of thing concerning the area,' Officer McCarthy agreed that by looking around, the suspects were 'acting in a suspicious manner * * * being apprehensive about someone observing them.' He observed petitioner and his companion, apparently engaged in conversation, walk 40 to 50 feet east of the hot dog stand and stop.

Although his view was somewhat obscured by the People's Park chain-link fence, Officer McCarthy saw the suspects continue to look around, noticed that petitioner laughed and that the companion leaned against a parked car, and observed each of the suspects reach into his pants pocket. The companion appeared to extract an object--although Officer McCarthy could not actually see an object--while petitioner extracted what appeared to be money. The two placed their hands together in an apparent exchange. Having then observed the suspects for a total of three to four minutes, Officer McCarthy said to Officer Lipgens, 'okay, the deal has gone down.'

The officers left the hot dog stand and approached the suspects who were walking toward them. The officers identified themselves and asked 'were you two dealing.' After receiving a negative reply they ordered the suspects to return to the site of the suspected transaction, and placed them under arrest 'to determine whether or not a narcotic transaction had been made.' Officer Lipgens reached into petitioner's pocket, pulled it up, observed ballons subsequently determined to contain heroin, shoved the ballons back into petitioner's pocket, and handcuffed him. Officer McCarthy found $110 on the person of petitioner's companion. The searches were begun within 15 to 20 seconds after the moment at which the officers identified themselves.

Circumstances short of probable cause may justify stopping a pedestrian for further investigation (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658), but before an officer detains an individual for questioning by means of physical force or a show of authority,[2 Cal.3d 356] he 'must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' (Terry v. Ohio (1968) 392 U.S. 1, 16, 19, 88 S.Ct 1868, 1880, 20 L.Ed.2d 889, fn. 16, 20--21.) A pat-down is an additional intrusion, and

Page 163

[466 P.2d 707] can be justified only by specification and articulation of facts supporting a reasonable suspicion that the individual detained is armed; a further intrusion into a suspect's clothing to recover a weapon requires a similar showing of a reasonable belief that the pat-down has disclosed the presence of a weapon. (Ibid.; People v. Collins, 1 Cal.3d 658, 662, 83 Cal.Rptr. 179, 463 P.2d 403.) If as a result of the detention or otherwise the officer becomes aware of circumstances which provide probable cause for arrest, he may arrest the suspect and conduct an incident search for weapons and destructible evidence. (Chimel v. California (1969) 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685; People v. Mickelson, Supra, 59 Cal.2d at pp. 450--451, 30 Cal.Rptr. 18, 380 P.2d 658.)

Even if we conclude that petitioner's activities were sufficient to justify a detention--a matter as to which we have some doubts (see Irwin v. Superior Court, 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 462 P.2d 12, and cases cited)--the officers did not simply detain but proceeded immediately to an arrest. The search followed within less than a minute of the instant at which the officers identified themselves, with only an order to return to the site of the transaction and a negative reply to the question 'were you two dealing' intervening. There is no indication that the officers believed the suspects might be armed, and they did not conduct a pat-down, but instead directly and immediately intruded into petitioner's pocket. Hence, there is no basis upon which to conclude the heroin was disclosed by a pat-down.

The search may not be upheld as incident to an arrest. Such a search is valid, and its evidentiary fruits admissible, only if incident to a lawful arrest predicated on probable cause. (E.g., People v. Lara, 67 Cal.2d 365, 373, 62 Cal.Rptr. 586, 432 P.2d 202.) 'To constitute probable cause for arrest, a state of facts must be known to the officer that would lead a man of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person arrested is guilty.' (People v. Hillery, 65 Cal.2d 795, 803, 56 Cal.Rptr. 280, 285, 423 P.2d 208, 213 and cases cited.) As with any intrusion upon an individual's personal security, 'simple "good faith on the part of the arresting officer is not enough,"' and 'in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' his suspicion. (Terry v. Ohio, Supra, 392 U.S. at pp. 21--22, 88 S.Ct. at 1880.)

[2 Cal.3d 357] The instant arrest was predicated solely upon the officers' observations that petitioner and his companion looked around...

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