People v. Divito

• Decision Date: 17 February 1984
• Docket Number: Cr. 44541
• Citation: 199 Cal.Rptr. 278,152 Cal.App.3d 11
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Antonio DIVITO, Defendant and Respondent.

Page 278

199 Cal.Rptr. 278

152 Cal.App.3d 11

The PEOPLE of the State of California, Plaintiff and Appellant, v. Antonio DIVITO, Defendant and Respondent.

Cr. 44541.

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

Feb. 17, 1984.

Wilbur F. Littlefield, Public Defender of Los Angeles County, Laurence M. Sarnoff, Leon Hitch, Leighton A. Nugent, Deputy

Public Defenders, for defendant and respondent.

Robert H. Philibosian, Dist. Atty. of Los Angeles County by Donald J. Kaplan, Eugene D. Tavris, Deputy Dist. Attys., for plaintiff and appellant.

COMPTON, Associate Justice.

Antonio Divito was charged by information with possessing phencyclidine for purposes of sale. (Health & Saf. Code, § 11378.5.) A motion to suppress evidence pursuant to Penal Code section 1538.5 was granted and the case dismissed, and as authorized by Penal Code section 1238, subdivision (a)(7), the People appeal.

The motion to suppress was submitted upon the transcript of the preliminary examination which established that at 6:15 p.m. on May 25, 1982, Los Angeles Police Officer David Avila was in uniform and travelling as a passenger in an unmarked police vehicle when he observed respondent and two other men standing on the corner of Ascot and 52d Street from a distance of 20 feet. Respondent, who had his back to the police car, "was holding something up" and the two men appeared to be examining it. Respondent's companions, immediately upon observing the police vehicle, turned and walked rapidly away. Respondent turned as well and looked in the direction of the police car. He then placed an unknown object in his right pants pocket and slowly followed his companions.

Officer Avila, who possessed extensive experience in arrests for PCP sales at this intersection and knew the area to be rife with such conduct, suspected that he had witnessed a narcotics transaction and stopped his police vehicle to investigate. As the officer approached respondent, he detected "[a] strong chemical-type odor indicative of PCP," or phencyclidine, emanating from respondent's person. ¹

Following the detection of the PCP odor, respondent was asked to turn around and place his hands behind his head. As he complied, the officer patted down the outer clothing and felt a circular object inside respondent's right trouser pocket, which he retrieved. It was "a vial containing a clear liquid with a tobacco-type substance floating about." ² Respondent was then placed under arrest. Prior to booking, "four Sherman-type cigarettes cut in half or four halves ... and one whole" cigarette were found in respondent's jacket pocket. In ruling upon respondent's suppression motion, the superior court concluded that the police officer had no right to "stop" or "detain" respondent prior to detection of the odor. The trial court opined that after such detection there was probable cause to arrest. ³

Appellant's contention is well taken. At the moment he stopped his police vehicle and walked toward respondent, the uniformed officer did not effect a detention. (People v. Jones (1979) 96 Cal.App.3d 820, 826, 158 Cal.Rptr. 415.) ⁴ Officer Avila was not constitutionally foreclosed from approaching respondent, or any other citizen, on a public street as it is beyond question that a mere "contact" or "approach" does not invoke Fourth Amendment considerations. (See People v. Bower (1979) 24 Cal.3d 638, 643, 156 Cal.Rptr. 856, 597 P.2d 115; People v. King (1977) 72 Cal.App.3d 346, 349, 139 Cal.Rptr. 926.) While the officer's reason for approaching respondent was the inchoate suspicion that he might be involved in illegal narcotics activity, the officer did not convey this suspicion to respondent nor take any action to restrict or otherwise curtail respondent's freedom of movement prior to his smelling the distinctive chemical odor about respondent's person. A detention commenced only after the officer lawfully approached respondent and detected the characteristic odor of PCP. (Cf. Wilson v. Superior Court (1983) 34 Cal.3d 777, 790, 195 Cal.Rptr. 671, 670 P.2d 325; also see the discussion of a defendant disgorging evidence when approached by officers in People v. Patrick (1982) 135 Cal.App.3d 290, 185 Cal.Rptr. 325.)

The recent case of People v. Aldridge (1984) 35 Cal.3d 473, 198 Cal.Rptr. 538, 674 P.2d 240 which held, under the unique circumstances there present, that mere flight from the approaching officer would not justify detention, is factually distinguishable and inapplicable to the case at bench.

Having detected the presence of the distinctive odor and being cognizant of respondent's previous actions, Officer Avila reasonably suspected that contraband was present and that respondent had concealed it on his person. The officer was therefore justified in detaining and searching respondent for the malodorous contraband. (Cf. Batts v. Superior Court (1972) 23 Cal.App.3d 435, 438-439, 100 Cal.Rptr. 181.) After discovering the vial of liquid PCP in respondent's pocket which had been earlier secreted...