Pendergraft v. Superior Court

• Decision Date: 16 February 1971
• Citation: 15 Cal.App.3d 237,93 Cal.Rptr. 155
• Court: California Court of Appeals Court of Appeals
• Parties: Kimberly PENDERGRAFT, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SAN LUIS OBISPO, Respondent, The PEOPLE of the State of California, Real Party in Interest (two cases). Civ. 37458, 37609.

Page 155

93 Cal.Rptr. 155

15 Cal.App.3d 237

Kimberly PENDERGRAFT, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SAN LUIS OBISPO, Respondent The PEOPLE of the State of California, Real Party in Interest (two cases).

Civ. 37458, 37609.

Court of Appeal, Second District, Division 3, California.

Feb. 16, 1971.

[15 Cal.App.3d 239] Harry E. Woolpert, Indio, for petitioner.

No appearance for respondent Court.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and William V. Ballough, Deputy Atty. Gen., for real party in interest.

Bennett Kerns, Beverly Hills, A. L. Wirin, Fred Okrand, Los Angeles, and Laurence R. Sperber, Beverly Hills, for The American Civil Liberties Union of Southern Cal., as amici curiae on behalf of petitioner.

FEINERMAN, ^* Associate Justice.

Petitioner is charged with possession of marijuana (Health & Saf.Code, § 11530), and possession of dangerous drugs (Health & Saf.Code, § 11910). The superior court denied his motions to set aside the information (Pen.Code, § 995) and to suppress marijuana and dangerous drug evidence (Pen.Code, § 1538.5), and we issued alternative writs of prohibition.

STATEMENT OF FACTS

Officers Gregory and Costa were patrolling the north section of San Luis Obispo on the morning of August 27, 1970. At about 7:30 a.m., they reached the 200 block of Santa Rosa Street when they saw the petitioner standing alone next to a road sign. His only observable possession, a green back pack, strapped closed, was 'leaned up against a road sign' and he was 'eighteen inches to two feet away.'

It is a police practice in San Luis Obispo to talk to hitchhikers who appear to be under age, ask them for identification, and advise them of the dangers of hitchhiking. Officers Gregory and Costa believed that the petitioner 'looked to be a juvenile' and they alighted from their patrol car and approached him. Officer Gregory asked for identification, and the petitioner produced it. His identification established that he was over eighteen years of age.

At this juncture petitioner was asked if he had 'any weapons--knives or guns or explosives.' He replied that he had 'three knives.' He was requested to produce them, and he withdrew one pocket knife from his coat pocket and another from his pants pocket. After the officers examined the two knives, they were returned to him. They inquired about the third knife, and the petitioner stated that it was in the pack. Officer Gregory asked if he could see it. Petitioner answered 'yes' and walked over and started opening his pack. Officer Costa then asked the petitioner whether he would consent to a search of his pack, and the officer received an affirmative response.

Without looking into the pack, Officer Gregory reached into the small pocket on the underside of the flap and brought out a book and a road map. On reaching into that pocket a second time, he withdrew a 'roach clip.' ¹ Officer Gregory thought he detected a brown residue on the teeth of the clip. The officer then turned his attention to the main part of the pack and pulled out a pair of bluejeans. In the back pocket of the jeans he found a 'Corina Mini' cigar box. He indicated that he was not looking for the third knife in that small box, but he did open it and discovered its contents to be two cigars and nineteen handrolled cigarettes. Suspecting the cigarettes contained marijuana, the officers ceased the search and called a Sergeant Lunsford on the patrol car radio. The sergeant arrived shortly thereafter, confirmed their suspicions, and instructed them to take the petitioner into custody.

At this point, the petitioner was 'patteddown,' handcuffed, and was placed in the rear seat of the patrol car. The pack was placed in the trunk and not further examined until its contents were inventoried at the police station.

Under the rear seat cushion of the patrol car the officers subsequently found an aspirin tin. The circumstances caused them to believe that it was placed there by petitioner, inasmuch as they had inspected the vehicle shortly before apprehending him. The tin contained, in tinfoil, two orange tablets and three white pills. The police chemist's report eventually showed the cigarettes contained 13 grams of marijuana; the tablets, .13 grams of LSD; and the pills, .16 grams of amphetamine.

Officer Gregory testified that throughout the period of street detention the petitioner appeared somewhat nervous and uneasy, but not more so than fifty percent of other persons stopped and questioned by the officers. The petitioner did not make any furtive motions while under observation and did not appear to be under the influence of drugs or alcohol. Until the officers discovered the 'roach clip,' they perceived nothing that caused them to believe the pack contained contraband. Officer Gregory further stated that he was not apprehensive of being attacked by the petitioner during the period of time he was in contact with him.

WAS THE INITIAL DETENTION LAWFUL?

'Circumstances short of probable cause may justify stopping a pedestrian for further investigation (citation), but before an officer detains an individual for questioning by means of physical force or a show of authority, he 'must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' (Citation.)' (Cunha v. Superior Court, 2 Cal.3d 352, 355--356, 85 Cal.Rptr. 160, 162, 466 P.2d 704, 706.)

'* * * (A) detention based on 'mere hunch' is unlawful (citation), even though the officer may have acted in good faith (citation). There must be a 'rational suspicion by the peace officer that some activity out of the ordinary is or has taken place * * * some indication to connect the person under suspicion with the unusual activity * * * (and) some suggestion that the activity is related to crime.' (Citation.) Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. (Citations.)' (Irwin v. Superior Court, 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 486, 462 P.2d 12, 14.)

Considering the absence of suspicious activities by the petitioner, ² and the time of day, we have reservations about the lawfulness of the initial detention. However, the trial court found that Officer Gregory believed that the petitioner was a runaway juvenile. In the light of that finding, we have concluded Officer Gregory had a right and a duty to stop the petitioner and make an inquiry as to his age. (People v. Bloom, 270 Cal.App.2d 731, 735, 76 Cal.Rptr. 137; Welf. & Inst.Code, § 625, subd. (a).)

WAS THE STREET DETENTION UNRESONABLY PROLONGED?

'* * * (J)ust as a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope (citation), so may an investigatory detention exceed constitutional bounds when extended beyond what is reasonably necessary under...