People v. Chapman

• Decision Date: 27 August 1973
• Docket Number: Cr. 22999
• Citation: 109 Cal.Rptr. 840,34 Cal.App.3d 44
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Eric Franklin CHAPMAN, Warrenton Gilmore, Defendants and Respondents.

Page 840

109 Cal.Rptr. 840

34 Cal.App.3d 44

The PEOPLE of the State of California, Plaintiff and Appellant, v. Eric Franklin CHAPMAN, Warrenton Gilmore, Defendants and Respondents.

Cr. 22999.

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

Aug. 27, 1973.

Hearing Denied Oct. 24, 1973.

Joseph Busch, Dist. Atty., Los Angeles County, Harry B. Sondheim, Acting Head, Appellate Div., Robert J. Lord, Dep. Dist. Atty., for plaintiff and appellant.

Richard S. Buckley, Public Defender Los Angeles County, Harold E. Shabo Harry Lippman, Martin Stein, Dep. Public Defenders, for defendant and respondent Chapman.

Warrenton Gilmore, in pro. per.

ROTH, Presiding Justice.

People appeal from an order dismissing an information (Pen. Code, § 1238(a) (1)) charging respondents Eric Franklin Chapman (Chapman) and Warrenton Gilmore (Gilmore) with a violation of section 11530 of the Health and Safety Code.

On August 4, 1972, one of the two police officers cruising in a police vehicle on Exposition Boulevard, at approximately 2 a.m., observed a 1964 blue Chevrolet with a smashed out window on the driver's side, occupied by two males, parked at the curb on the opposite side of the street. The observing officer, thinking the car might have been stolen, turned the police vehicle around and approached the Chevrolet from the rear. Concurrently a license check was in process with headquarters. As the police vehicle was being brought to a stop, the Chevrolet moved from the curb in the direction in which it was headed but stopped immediately when the red lights of the police vehicle were activated. One of the officers exited the police vehicle, ordered Gilmore who sat on the driver's side and Chapman who was sitting on the passenger side of the Chevrolet out, and directed them toward the police car; both complied forthwith. There is no testimony or suggestion that either respondent was under the influence of alcohol or of any drug or of any irregularity of gait or appearance or of any furtive or suspicious conduct on the part of either of them nor is there any evidence of a crime in the neighborhood, reported burglaries or any other criminal activities. No request was made of either respondent for a driver's license or any other identification nor were they asked what they were doing in the car or the neighborhood or where they lived or how the window was broken.

Each respondent was frisked for weapons before any questions were asked. None were found. Gilmore was then asked if the vehicle was his. He answered in the affirmative. He was then asked for its registration and replied according to the officer that he did not have it on his person and he was not sure but he thought that it was in the car and the officer could look. The officer with aid of his flashlight looked for the registration on the steering wheel column; seeing none, he leaned toward the glove compartment, noticed that the window on the passenger side was also smashed out, and observed a plastic bag on the floor of the passenger side of the car. The officer concluded it contained marijuana. Respondents were taken to the station. A search of each of the men was then made. A pipe, the bowl of which contained a residue of marijuana, was extracted from Gilmore's pocket and two cigarettes containing what appeared to be marijuana were extracted from Chapman's pockets. Subsequent analysis revealed that the plastic bag and one cigarette contained marijuana and that the bowl of the pipe contained residue of marijuana.

Respondents were bound over by the magistrate, but the superior court announcing that the facts were 'close enough to People v. Griffith', dismissed the information.

People v. Griffith, 19 Cal.App.3d 948, 97 Cal.Rptr. 367, hearing denied November 4, 1971, discloses a similar factual situation, except that the time was 4:35 p.m. instead of 2 a.m., and instead of a smashed window, the lower two-thirds of the right wind-wing had been smashed, and plainly visible to the officer. In Griffith, too, the restraining officer, without the use of a flashlight, saw a complement of hardware used by burglars and a dismantled phonograph. The Griffith Court held there was not sufficient evidence that the broken wind-wing and the time of the day considered objectively to create '* * * reasonable suspicion that something out of the ordinary has taken place, that the activity is related to a crime, and that defendant is connected to the activity.' (Page 950, 97 Cal.Rptr. page 368.)

Respondents fortify Griffith with persuasive authority. (Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917; e.g., People v. Moore, 69 Cal.2d 674, 72 Cal.Rptr. 800, 446 P.2d 800 (1969); Stern v. Superior Court, 18 Cal.App.3d 26, 95 Cal.Rptr. 541 (1971) (3 men standing near the rear of a parked car at 10:45 p.m.); People v. Hurton, 14 Cal.App.3d 930, 92 Cal.Rptr. 666 (1971) (young looking defendant observed driving in a car at 1:15 a.m. with two young passengers); People v. Callandret, 274 Cal.App.2d 505, 78 Cal.Rptr. 917 (1969) (1:30 p.m.).)

It is settled that a mere suspicion or hunch that certain observable factors might be related to criminal activity is not sufficient to support probable cause to stop and frisk and that a police officer must be able to point to specific and articulated facts, which taken together with rational inferences, will warrant the intrusion upon the person. (Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917.)

Conduct, however, which may not warrant detention in daytime may be sufficient to do so at night. In People v. Henze, 253 Cal.App.2d 986, 989, 61 Cal.Rptr. 545, 547, we said: '* * * The law in many instances draws a sharp distinction between the controls which may be exercised by peace officers during the nighttime and those to which they are limited during daylight hours, and most of the cases upholding temporary detention for investigation and questioning have arisen out of incidents which occurred at night. (People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658 (citations); People v. Martin, 46 Cal.2d 106, 293 P.2d 52 (citations); People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57 (citation);)' (Cf. Williams v. Superior Court, 274 Cal.App.2d 709, 79 Cal.Rptr. 489 (1969) (10 p.m. with other circumstances which warranted detention).)

In Blodgett, cited above, the court says 46 Cal.2d at page 117, 293 P.2d at page 58 there is 'nothing unreasonable in an officer's questioning persons outdoors at night.' (See People v. Superior Court, 20 Cal.App.3d 384, 97 Cal.Rptr. 646.)

Circumstances which determine the reasonableness of a detention must be decided in the total atmosphere of the case. (People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577.) An ordinary householder turning into his driveway at 2:00 a.m. would be reasonably apprehensive if he saw a parked car occupied by two men, opposite or close to his residence, which remained parked even though the men were not acting in a furtive or suspicious manner, and even if h...