People v. Craig

Decision Date01 December 1978
Docket NumberCr. 9364
Citation86 Cal.App.3d 905,150 Cal.Rptr. 676
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Michael David CRAIG, Ray Charles Cunningham and Larry Charles Turner, Defendants and Appellants.

Hayne R. Moyer, Sacramento, under appointment by the Court of Appeal, for defendant and appellant Michael David Craig.

Rebecca W. Phillips, Sacramento, under appointment by the Court of Appeal, for defendant and appellant Ray Charles Cunningham.

Paul Halvonik and Quin Denvir, State Public Defenders, Gary S. Goodpaster and Ezra Hendon, Chief Asst. State Public Defenders, Richard L. Phillips, James G. Wright and Michael Lee Pinkerton, Deputy State Public Defenders, for defendant and appellant Larry Charles Turner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher and Robert F. Tyler, Deputy Attys. Gen., for plaintiff and respondent.

REGAN, Acting Presiding Justice.

These are appeals from judgments entered upon jury convictions for violations of Penal Code sections 211 (robbery), 496 (possession of stolen property), and 1203.06, subdivision (a)(1), and 12022.5 (use of a firearm during the commission of one of the robberies).

On January 30, 1977, about 8:30 p. m., Melinda Duncan was walking through the parking lot of a food market at Stockton and Fruitridge in Sacramento, California, when she was approached from behind by a black male. She was carrying a purse over her left arm. The man seized the purse and then struck Ms. Duncan in the face. She refused to relinquish the purse and the man dragged her by the purse across the parking lot until the purse strap broke; he then ran with the purse to a car.

Ms. Duncan followed the suspect to the car which contained two other black men whom she was unable to identify. She and the suspect reached the car about the same time and they ended up facing each other over the open door on the passenger side. The suspect then struck Ms. Duncan repeatedly in the face with his fist. When she fell to the ground, he entered the car and they drove away. Ms. Duncan identified defendant Cunningham as the man who struck her and took her purse. She described the car as an older, white Nova, with red interior. When shown a picture of the car, she identified it as the one the suspect used. The car was later proved to be a stolen vehicle.

About 10:45 that same night, a white Nova, containing three black males, was driven to the gas-pump location of a car wash at Florin and Franklin in Sacramento. The driver requested gasoline. While the pump was running, Michael Fox, the attendant and a subsequent victim, was in the attendant's booth and had occasion to observe, for a few seconds, the face of the man on the passenger side of the front seat. He subsequently identified him as defendant Turner.

After stopping the pump, Fox requested payment from the driver. The driver, pointing a revolver at Fox, said something to the effect of "give me the money." Fox opened the cash drawer, telling him to "go ahead, take it." As the driver raided the cash drawer, Fox backed away and ran to call the police. Upon returning to the booth, after the suspects had fled, he noticed the liner of the cash drawer and an estimated $100 were missing. Fox subsequently identified defendant Craig as the driver.

Observing Fox running toward the office, a co-worker, Mitch Willey, asked what happened. Fox said: "I've been robbed." Willey, and two others, Richard Mason and Ken Pritten, then pursued the white Nova in two vehicles. At an apartment complex on 29th Street, the Nova entered the south driveway bordering the complex and stopped. The three suspects exited, running into the complex. Mason, who had followed the Nova to the complex, went to a nearby apartment and asked the occupants to call the police. Mason did not see any person moving around the grounds of the complex.

When the police arrived, they began to surround the complex. One of the first units to arrive was Officer Reed with an experienced, trained police dog. Reed was driving slowly when the dog alerted and barked and Reed stopped the car. He then sighted three black males together at an exit to 29th Street near the center of the complex. The three persons turned and reentered the complex. Reed radioed a report of the sighting to other officers who, by now, had a brief description of the suspects.

Officers Hagio and Strassberg were in a marked squad car driving along the northern perimeter of the complex. Shortly after they heard Reed's broadcast, they observed three black males moving inside the complex. Hagio stopped the vehicle and he and Strassberg exited and attempted to follow the three subjects. However, the subjects disappeared. The officers were returning to their squad car when the three subjects reappeared and were ordered to approach the squad car, which they did.

The officers conducted a pat-down search for weapons and the subjects were advised of the officers' participation in a robbery investigation. The subjects were questioned, then placed into the lighted back seat of the squad car. The robbery victim, Fox, was transported to the scene in an attempt to make an in-the-field identification. Fox was driven past the lighted squad car and was able to identify Craig and Turner, whereupon all the subjects were taken to the police station.

The Nova was searched and found to contain Ms. Duncan's purse and some of its contents. Officers then searched the complex for the cash-drawer liner, gun and other evidence, but found nothing. Officer Reed and the dog were ordered to track from the interior of the vehicle. After being allowed to smell inside the Nova, the dog followed the path of the suspects from that point to the point where the detention occurred.

Defendants contend the stop, pat-down search, detention and arrest were all unlawful; and their suppression motions pursuant to Penal Code section 1538.5 should have been granted.

It is well established that a temporary detention may be justified by circumstances falling short of probable cause to arrest. An officer may stop and question persons on public streets when the circumstances indicate to a reasonable man in a like position that such a course of action is called for in the proper discharge of the officer's duties. The good-faith suspicion which warrants an officer's detention of a person for investigative reasons is necessarily of a lesser standard than required to effect an arrest. Where there is rational belief of criminal activity connected to the suspect, a detention for reasonable investigative procedures infringes no constitutional restraint. (People v. Harris (1975) 15 Cal.3d 384, 388-389, 124 Cal.Rptr. 536, 540 P.2d 632; People v. Flores (1974) 12 Cal.3d 85, 91, 115 Cal.Rptr. 225, 524 P.2d 353; cf. In re Tony C. (1978) 24 Cal.3d 888, 892, 148 Cal.Rptr. 366, 582 P.2d 957.)

The officers here were acting on a general description of the robbery suspects. However, a general description has been held sufficient justification for stopping and questioning persons meeting that description. (See People v. Curtis (1969) 70 Cal.2d 347, 358, 74 Cal.Rptr. 713, 450 P.2d 33; People v. Blackmon (1969) 276 Cal.App.2d 346, 348, 80 Cal.Rptr. 862.)

Defendants did not perfectly match the general description given, however since the descriptions and appearances were substantially the same, and coincided in the discernable factors (race, sex, build, number), we hold the officers acted reasonably, under the circumstances, in stopping and initially detaining the defendants. 1

That officers have the right to conduct a pat-down search, under the proper circumstances, cannot be denied. (Terry v. Ohio (1968) 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889, 909; People v. Lawler (1973) 9 Cal.3d 156, 161, 107 Cal.Rptr. 13, 507 P.2d 621; People v. Superior Court (1972) 7 Cal.3d 186, 204, 101 Cal.Rptr. 837, 496 P.2d 1205.) The officers were aware the crime involved was armed robbery, and a revolver had been used. We hold such knowledge sufficient, under the circumstances, to warrant the pat-down search.

Defendants next argue that their placement in the back seat of the patrol vehicle was in effect an arrest, and unlawful as being without probable cause. The People argue this was reasonable detention, warranted by the circumstances, for the purpose of in-field witness identification. We agree.

In People v. Harris, supra, 15 Cal.3d at page 389, 124 Cal.Rptr. 536, 540 P.2d 632, the courts first noted the existence of a gray area, where the facts justify measures beyond detention but short of arrest. The facts in Harris were similar to those here, where suspects had been properly stopped a few blocks from the crime scene, had aroused further suspicion in the officers (but short of probable cause), and where the officers desired a witness-identification of the suspects to bolster the case. The Harris court was disinclined to hold that circumstances short of probable cause are never sufficient to warrant transportation of a Suspect back to the Crime scene for identification. (Id. at p. 390, 124 Cal.Rptr. 536, 540 P.2d 632.) The court indicated instances in which such transportation might be reasonable, then said: "Ordinarily there exist less intrusive and more reasonable alternatives to pre-arrest transportation. The officers may call or escort the Witness to the Detention scene for an immediate viewing of the suspect . . . ." (Emphasis added.) (Id. at p. 391, 124 Cal.Rptr. at p. 540, 540 P.2d at p. 636.) The Harris court, noting the failure of the officers to use an alternative to transportation of the suspect, and the total lack of exigent circumstances which would justify the transportation of the suspect, held the officers' taking the suspect back to the scene of the crime for identification violated the suspect's constitutional rights. (...

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