Gonzalez v. Superior Court, Los Angeles County

Decision Date24 February 1983
Citation189 Cal.Rptr. 696,140 Cal.App.3d 146
PartiesPrimitivo GONZALEZ and Fernando Arcia, Petitioners, v. The SUPERIOR COURT of the State of California, For the COUNTY OF LOS ANGELES, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 64421, Civ. 64422.
CourtCalifornia Court of Appeals Court of Appeals

Garrett J. Zelen, Santa Monica, for petitioner Arcia and Mitchell W. Egers, Los Angeles, for petitioner Gonzalez, Dennis Fischer and Melissa Hill, Los Angeles, associated counsel for petitioners.

No appearance for respondent.

John Van de Kamp, Dist. Atty., Donald J. Kaplan and Suzanne Person, Roderick W. Leonard, Deputy Dist. Attys., for real party in interest.

Quin Denvir, State Public Defender, and Charles M. Sevilla, Chief Deputy State Public Defender, as Amicus Curiae on behalf of Petitioners.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., Shunji Asari, Deputy Attys. Gen., as amicus curiae on behalf of respondent.

L. THAXTON HANSON, Associate Justice.


Defendants Primitivo Gonzalez and Fernando Arcia filed petitions for writs of mandate/prohibition to reverse rulings of the superior court denying their respective 1538.5 motions to suppress evidence prior to trial (Health & Saf. Code, § 11352). This court originally denied their petitions without opinion and the California Supreme Court on March 3, 1982, directed us to issue alternative writs with respect to the two petitions.

While the instant case was pending decision before this court the electorate passed Proposition 8 on June 8, 1982 (effective June 9, 1982) and the prior submission was vacated for the purpose of supplementary briefing and argument limited to the effect, if any, of the passage of Proposition 8.

On July 1, 1982 the instant cases were argued at the same time as the case of Wilson v. Superior Court, 134 Cal.App.3d 1062, 185 Cal.Rptr. 678 which presented similar issues.

On September 24, 1982 the July 1, 1982 submission was vacated since a petition for hearing on the Wilson case was pending before the Supreme Court and the matter was ordered resubmitted following order from the Supreme Court on the petition for hearing filed in the Wilson case.

On November 18, 1982 the State Supreme Court granted the petition for a hearing filed by the defendant in the Wilson case.


Deputy McGavock of the Metro County Police Department in Florida was assigned to narcotics investigation at the Miami International Airport on September 22, 1981. He testified at the 1538.5 hearing that on that date he observed a man at the Pan American ticket counter in the Miami Airport. The man would continually look around closely at other people, would shift his weight from foot to foot, and appeared nervous. The actions continued for about 5 to 10 minutes. When the man left the ticket counter, he looked over his shoulder several times.

Deputy McGavock stopped the man, identified himself as a sheriff's deputy, and asked permission to talk with the man for a moment. The officer told the man that the man did not have to talk with the officer if the man did not want to. When the officer confirmed that the man was not under arrest, the man agreed to talk with him. The officer asked for identification and the man stated that the only identification he had was his airline ticket which was in the name of "J. Ortiz." The officer asked permission to search the blue tote bag the man was carrying but the man said that he did not have time before his flight left. The officer pointed out that the flight did not leave for an hour but the man stated that he would rather that the officer not search the tote bag. Then he left and entered the gate for Pan American departures.

Deputy McGavock made a phone call to the Los Angeles police and spoke to Officer Michael Celmer because he suspected the man might be engaged in narcotics' activities. He described the events and the man (a male Latin in his late 20's, 5'7"' with a thin mustache, light kinky hair, gray clothing, and a dark shirt carrying a blue tote bag.) Although Deputy McGavock did not actually see the man board the plane for Los Angeles because of other duties, he told Detective Celmer that the man would be arriving on Flight 873 from Miami.

Detective Celmer at Los Angeles International Airport following the call from McGavock monitored passengers deplaning from the Miami flight. He first noticed defendant Gonzalez leaving the airplane. Gonzalez appeared nervous, was looking around the terminal, looked in the officer's direction, and turned around. He was with another man, later identified as Mena, who was not charged. Gonzalez was walking at Then the officer noticed Defendant Arcia, who was walking a few feet behind Gonzalez and Mena, and carrying a blue tote bag. Detective Celmer said Defendant Arcia "looked exactly like the individual that was described by McGavock" since his hair and clothes matched the description of those of the man at the Miami airport. Arcia did not have a mustache, but he had a red shape below his nose which made it appear as if he had just shaved off a mustache.

a brisk pace and had no luggage but he was carrying a small black purse.

The detective found it unusual in that it appeared that the three men knew one another but they did not acknowledge each other. He said that Arcia appeared nervous but not as nervous as petitioner Gonzalez. The three walked to the street area and Arcia appeared to make several calls from a telephone booth while the other two just paced back and forth outside the booth and talked to one another.

Arcia nodded to Gonzalez when he left the phone booth about 10 minutes later, and Gonzalez acknowledged the nod. Gonzalez and Mena then walked to the traffic island. Arcia followed and joined them and all three began talking.

At this point Detective Celmer and Agent Marcello of the Drug Enforcement Administration approached the men. Detective Celmer went to Gonzalez because in his opinion Gonzalez was displaying certain characteristics the officer had observed in the past in persons he arrested for possession of narcotics--Gonzalez was nervous, was carrying no luggage despite his 3000-mile trip, appeared to be going to a large hotel nearby, and came from Miami, a large source of narcotics. The detective, who had given Agent Marcello the information received from Deputy McGavock, also believed that Arcia was the person who had been described by Deputy McGavock. The officer also found it unusual that it took such a long time for the three men to acknowledge that they were together.

Detective Celmer after identifying himself as a police officer asked Gonzalez if the officer could talk to them for a moment. Gonzalez, who spoke English, replied "yes," and the officer informed Gonzalez that he did not have to speak with the officer. The officer then asked Gonzalez for identification but told Gonzalez that Gonzalez did not have to show the officer any identification. Gonzalez said he did not have any identification but gave the officer an envelope containing three airline tickets. Two of the tickets were in Gonzalez' name but the other ticket was in a third name which the officer did not recall.

The officer asked which one he was, and Gonzales replied "I am Primitivo Gonzalez." When the officer informed Gonzalez that the tickets were not identification, Gonzalez said he had none. The officer then asked what was in the black purse Gonzalez was carrying. Gonzalez with a startled look handed him the purse and said: "I don't have anything in here, here." The officer asked if he could look inside the purse and Gonzalez said "Yes. look." The officer looked inside and saw men's socks and underwear and a piece of paper with writing. When he reached in to remove the paper, he found there inside the underwear a clear plastic bag containing cocaine. A second plastic bag of cocaine was found in the purse.

Detective Celmer placed Gonzalez under arrest and told the other officers to place Arcia and Mena under arrest. The reason for ordering the arrests of Arcia and Mena was that they were with Gonzalez, that narcotics had just been found on Gonzalez, that Arcia appeared to be the person described by Deputy McGavock and that the officer felt that Arcia was possibly in possession of narcotics. The officer also stated that other factors were that they were from a source city for narcotics, and the officer believed the behavior of the men in the airport was suspicious.

A driver's license in the name of Primitivo Gonzalez was later discovered in Gonzalez' wallet.

Agent Marcello, a federal narcotics agent, testified that detective Celmer had related to him the facts of the phone conversation with Deputy McGavock, that he saw Arcia who matched the description supplied by Deputy McGavock, that he observed Arcia walking out of the airport, and that he approached Arcia at the traffic island outside the airport. He had noticed Arcia looking nervous and looking all around and had seen him make phone calls while his two companions waited. The agent, wearing plain clothes, approached Arcia and Mena. He testified that "I showed them my identification, and I stated that I was a federal agent and that I was conducting a narcotics' investigation. I then asked both gentlemen if they would mind showing me some identification." Arcia said he would not mind showing identification but he had none.

In response to Agent Marcello's question as to whether he was a citizen of the United States, Arcia said he was not. The federal agent then asked to see his passport and visa or green card. Arcia stated that he had left his passport in Miami. The federal agent then decided to detain Arcia for further investigation. Shortly thereafter, Officer Celmer said he had found contraband on Gonzalez and told the...

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