People v. Courtney

• Decision Date: 14 October 1970
• Docket Number: Cr. 8287
• Citation: 11 Cal.App.3d 1185,90 Cal.Rptr. 370
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jack COURTNEY, Defendant and Appellant.

Page 370

90 Cal.Rptr. 370

11 Cal.App.3d 1185

PEOPLE of the State of California, Plaintiff and Respondent, v. Jack COURTNEY, Defendant and Appellant.

Cr. 8287.

Court of Appeal, First District, Division 1, California.

Oct. 14, 1970.

Hearing Denied Dec. 14, 1970.

Crist, Crist & Griffiths, Roger E. Crist, Palo Alto, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

ELKINGTON, Associate Justice.

Defendant Jack Courtney was convicted of the offense of possession of marijuana (Health & Saf.Code, § 11530) following a court trial. Imposition of judgment and sentence was suspended and he was placed on probation. His appeal from the 'judgment' will be treated as an appeal from the order granting probation. (See Pen.Code, § 1237, subd. (1).)

Courtney's first contention is that the narcotic evidence upon which his conviction was based was the product of a Fourth Amendment violation--an illegal 'stop and frisk' or at least the threat of such illegal conduct.

George Bruschi was employed as a police officer by Standford University, a private educational institution. He was not a peace officer as defined by Penal Code sections 7, 817 and 852.1. During midafternoon of December 1, 1968, he was on mobile patrol in a residential area which was the private property of the university. There had been an alarming number of crimes in the area. The officer had had an 'extreme' amount of trouble there, including burglaries and indecent exposures. The home of the university's president was nearby and he had personally been threatened. His office had been fire bombed and gasoline had been found in his garage. There had been other threats of bombings and actual bombings on the university grounds. Another problem was 'a run of people stealing women's underclothing' from clotheslines. The university's police were advised to 'be cautious.'

Officer Bruschi observed defendant Courtney walking through the area. He was dressed in unusual garb and when he saw the uniformed officer he turned his head away 'kind of like to avoid me.' Courtney appeared to be a stranger to the neighborhood so the officer pulled up to 'ascertain if he had business' and identification. Courtney showed a draft card in his name and said he was going to a certain residence. The occupant of the residence to which he said he was going was known by the officer to have a police record. The officer 'felt it was necessary' to investigate further so he told Courtney 'that I was going to run a check through police radio to further his identification.' The officer testified, 'And at that time before I even had a chance--I just had my hand on the receiver of the police radio--he stated he had no driver's license because it was revoked for hit and run; (that he had been) busted for dope, whatever that meant and also carrying a concealed .38 weapon on his person.' At that point the officer observed an unusual 'bulge' under Courtney's jacket, and felt concern for his safety. He called for assistance over the police radio. Asked what the bulge was, Courtney replied that it was none of the officer's business because he was not under arrest. Officer Bruschi then reached out toward the bulge 'to possibly identify by the feel if it could be a weapon.' But Courtney pulled back; the officer couldn't 'get a good enough feel of the thing' except that it felt firm--'rather hard.' At one time Courtney pulled out the object briefly and said, 'Here it is' and quickly replaced it in his pocket. The object was a bag but its contents could not be seen.

In the meantime another officer arrived and a crowd of 18 to 20 people had gathered. Further inquiry as to the nature of the bulge was futile, Courtney insisting, 'he was not under arrest, and he did not have to reveal what was in his pocket.' Since other officers had had trouble with crowds while making 'investigations on the campus,' Officer Bruschi told Courtney he 'was going to hold him for further investigation because there was a crowd gathering on the corner. For both our welfare--'; he felt 'it was common sense to get us both off the street.' He further testified: 'I told him that I would have to transport him to the Stanford Police Station for further interrogation because there was a crowd gathering, and I felt it wasn't common sense to stay out there at that intersection any longer than we had already been.'

Officer Sanguinetti who had responded to the radio call testified: 'I arrived there, and I got out of my vehicle, and Officer Bruschi came to me and said, 'I have a problem here that I'd like you to stand by with for a few minutes.' I said, 'All right.' I said, 'What seems to be the trouble?' He said, 'Well, this fellow has got something concealed under his coat.' I stated, 'Did you ask him what it was?' And he said, 'Yes, but he won't tell me.' And I said--well, I believe I addressed the defendant then--I said, 'Son, what do you have under your coat?' And he said, 'You will have to arrest me before I show you. * * *' I was standing behind the defendant off to the side where I could watch him because we thought he had a dangerous weapon or something on him, which Officer Bruschi said that he told him that he had been in trouble before. And also hit run with something to do with narcotics. And so with this bulge under this pea coat, we presumed it could be possibly a dangerous weapon. * * * We had to keep watching him, make sure he wasn't going to produce a weapon. * * * (W)e finally decided we weren't getting anywhere with the young fellow; so Officer Bruschi said, 'We are going to have to take you to the Stanford Police Department and continue this,' because there was a crowd of people gathering, and on Stanford a crowd of people can sometimes be hostile to police; let's face it. * * *'

Both officers testified that Courtney was not under arrest at this point.

Upon being told that the investigation would be continued at the university's police station, Courtney pulled the bag from his pocket, handed it to the officers, and exclaimed: "Here it is. Six lids of marijuana." Courtney was then placed under arrest for possession of marijuana. He effectively confirmed the officer's testimony, stating that when he was about to be taken to the station 'I voluntarily just gave it to them.'

No contention is made by the People on this appeal that until Courtney finally handed the 'bag' to the officer, stating it contained marijuana, there was reasonable cause for his arrest. And there would seem to be no question but that the object was produced as a direct result of the officer's statement that they would have to 'continue this' at the university police station. The question before us then is whether the police conduct up to that point was within their 'legitimate investigative sphere.' (See Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 20 L.Ed.2d 889.)

It is now established law 'that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning.' (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 20, 380 P.2d 658, 670; see also Terry v. Ohio, supra, 392 U.S. 1, 22, 88 S.Ct. 1868; People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 96, 41 Cal.Rptr. 290, 396 P.2d 706.) 'While the circumstances which justify temporary detention may be bewilderingly diverse' (People v. Manis, 268 Cal.App.2d 653, 659, 74 Cal.Rptr. 423, 427), such a detention is proper when the circumstances are such as would indicate to a reasonable police officer that such a course is necessary to the proper discharge of his duty. (People v. One Cadillac Coupe, supra, 62 Cal.2d pp. 95--96, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Manis, supra, 268 Cal.App.2d p. 659, 74 Cal.Rptr. 653.) "The rationale of all these decisions is that an officer of the law, employed to maintain the peace and to prevent crime, as well as to apprehend criminals after the fact, has both the right and the duty to make reasonable investigation of all suspicious activities even though the nature thereof may fall short of grounds sufficient to justify an arrest or a search of the persons or the effects of the suspects. Experienced police officers naturally develop an ability to perceive the unusual and suspicious which is of enormous value in the difficult task of protecting the security and safety of law-abiding citizens. The benefit thereof should not be lost because the cold record before a reviewing court does not contain all the particularized perceptions which may have been so meaningful at the scene.' ...