People v. Evans

Decision Date14 January 1977
Docket NumberCr. 2538
Citation134 Cal.Rptr. 436,65 Cal.App.3d 924
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Robert Donald EVANS, Defendant and Appellant.
Jackson S. Wallace, Pacific Grove, under appointment by the Court of Appeal, for defendant and appellant
OPINION

GEO. A. BROWN, Presiding Justice.

Pursuant to a plea bargain appellant, Robert Donald Evans, pleaded guilty to possession of marijuana for sale (Health & Saf.Code, § 11359). He appeals from the judgment, raising search and seizure issues pursuant to Penal Code section 1538.5, subdivision (m).

Determinative of the cause of our conclusion that the police officers did not have sufficient justification to stop and detain appellant and his codefendant, who was driving a pickup in which appellant was a passenger, and in the bed of which pickup there were approximately 25 pounds of marijuana. The plea and judgment herein were based solely upon that evidence.

It was stipulated that the evidence taken at the preliminary hearing, together with the evidence presented at the hearing on the Penal Code section 1538.5 motion to suppress and Penal Code section 995 motion to dismiss could be considered by the court in ruling on the motions.

Resolving conflicts in favor of the respondent, it appears that at about 2:30 p.m. on June 2, 1975, Detectives Fernandez and Grogan of the Modesto Police Department undertook surveillance of mini-warehouse compartments Nos. 20 and 21, near Ceres, California. They were watching the warehouses with binoculars from a concealed position on a neighbor's property with consent of the neighbor. The mini-warehouse complex contained 40 numbered compartments which were individually rented to members of the public for the purpose of storage. They did not know who was the renter or renters of compartments 20 and 21.

Upon arrival to take up their surveillance, Fernandez and Grogan met an agent of the drug enforcement unit and two agents of the United States Customs Service with two of their dogs purportedly trained to detect the location of marijuana by its order. These agents did not testify at the preliminary hearing or at the combined hearing of the Penal Code sections 1538.5 and 995 motions. At the time the detectives arrived two customs agents were in the process of causing the dogs to sniff at various compartments of the warehouse complex. The record is entirely silent on the background of the agents' investigation, the extent of their preknowledge, if any, regarding the location of marijuana in compartment 20 or 21 or in any of the compartments, or their knowledge, if any, regarding the renter or renters of these two compartments. It does appear, however, that the dogs sniffed all of the mini-warehouses, finally stopping at warehouses 20 and 21, and upon reaching that location they reacted by growling, barking, biting at the locks and scratching at the doors. The detectives were advised by the customs and drug enforcement unit agents that the dogs' reactions meant marijuana was present. The dogs did not react at any of the other warehouses.

The record does not contain a description of the physical layout of the mini-warehouses nor does it appear whether the location from which the dog handlers and the dogs operated was a public or private street or an area or location at which they had a right to be.

It also appears that Detective Fernandez had seen the dogs with their handlers approximately 12 hours before at some other warehouse area. At that time Fernandez had seen a demonstration of the dogs' capabilities in detecting marijuana through their sense of smell. Five marijuana bricks were secreted in five different locations from 50 to 100 feet away from the dogs. Each dog was released separately to attempt to locate the marijuana cache. Both dogs found all five bricks. Detective Fernandez also stated that he had seen the dogs in action that same day at another mini-warehouse location near Turlock.

The two detectives continued their surveillance of compartments 20 and 21 until approximately 6:50 p.m. At about that time a Chevrolet pickup pulled up and stopped at the side of the compartments. Two men got out of the truck and one walked toward the northeast corner of the building and the other to the southeast corner of the building and looked around. They met each other back at the pickup truck, and then appellant went to the door of space No. 20, appeared to unlock the door, lifted the sliding door, and went into the warehouse. His companion, Elgen, remained outside by the pickup. A few moments later appellant emerged from the warehouse and motioned Elgen to bring the truck around to the door of space No. 21, which Elgen subsequently did. Appellant returned to the inside of the warehouse and brought out a large plastic bundle and placed it in the bed of the pickup. He lifted what looked like a tire and placed it on the bundle or next to it. Appellant secured the door of the warehouse, got back in the vehicle, and they drove away with Elgen driving. At that point Fernandez, who was using the binoculars, stated ' They got something out of the warehouse. Let's follow them.' Both officers testified they did not observe anything in particular about the plain plastic bundle which was carried from the warehouse and placed in the bed of the pickup. Specifically, neither officer testified that the size, shape or appearance of the clear plastic bundle caused him to believe that the package contained marijuana. The detectives followed the truck because they were trying to obtain a search warrant for the warehouse.

The detectives were not in uniform and were driving an unmarked vehicle. As they followed the pickup at distances varying from 4 to 20 car lengths they noticed no traffic violations, no furtive conduct, and were aware of no outstanding traffic warrants for the occupants of the pickup. When Fernandez was asked why the detectives stopped appellant and Elgen, he said that it was 'Because it was my impression from what I had observed, that they just picked up marijuana at the warehouse,' that it was not his intention to arrest them but that 'It was my intention to stop them and find out who they were.'

It appears that appellant and Elgen eventually drove into a parking lot at a bar and stopped, and the officers pulled up and stopped behind them and slightly to their left. 1 The officers then alighted from their vehicle with guns drawn and ordered appellant and Elgen out of the pickup and face down onto the pavement. At that point Grogan stated, 'That's marijuana,' referring to the bundle in the bed of the pickup truck. At that moment Fernandez had been searching appellant and Elgen for weapons and found none. When he heard the words of Grogan he handcuffed appellant and Elgen and called for a patrol unit. When it arrived he placed appellant and Elgen in the patrol car and advised them they were under arrest. Detective Fernandez then walked to the rear of the pickup and himself observed the package of marijuana. Subsequent search of the passenger area of the truck disclosed a scale. Detective Fernandez estimated the quantity of marijuana to be in the neighborhood of 12 kilograms (about 25 pounds).

After the pickup had been stopped and at the time Fernandez had his rifle leveled at the pickup occupants, ordering them out of the pickup, Evans turned around and Fernandez then recognized him as a person he had booked approximately nine months earlier in a case in which 13 pounds of marijuana were seized. Other individuals were charged with criminal offenses as a result of that incident, but appellant was not charged. On the prior occasion $1,700 was found on appellant, together with what appeared to be receipts for the sale of kilos of marijuana.

Turning to the applicable legal standards for a traffic stop and detention, this court in People v. Podesto (1976) 62 Cal.App.3d 708, 133 Cal.Rptr. 409 recently summarized the frequently stated rules as follows:

'It is well established that circumstances short of probable cause to make an arrest may warrant a temporary detention for purposes of investigating possible criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906--907.) Before such a detention may be undertaken, however, there must be a rational suspicion that something out of the ordinary has taken place, that the activity is related to a crime, and that the person detained is connected to the activity. (Irwin v. Superior Court (1969) 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 462 P.2d 12.) The test in determining the validity of a temporary detention is to inquire whether the circumstances 'are such as to indicate to a reasonable man in a like position that such a course is necessary to the proper discharge of the officer's duties, . . .' (People v. Robles (1972) 28 Cal.App.3d 739, 744, 104 Cal.Rptr. 907, 910.) The circumstances must be such as to distinguish the activity of the detained person from that of any other citizen and must be based on an objective perception of events rather than the subjective feelings of the officers. (See Irwin v. Superior Court, supra, 1 Cal.3d at p. 426, 82 Cal.Rptr. 484, 462 P.2d 12; People v. Moore (1968) 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800; People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 95--96, 41 Cal.Rptr. 290, 396 P.2d 706.) Moreover, where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. (Irwin v. Superior Court, supra, 1 Cal.3d at p. 427, 82 Cal.Rptr. 484, 462 P.2d 12; cf. People v. Superior Court (Acosta) (1971) 20 Cal.App.3d 1085, 1088, 98 Cal.Rptr. 161; People v. Higbee (1974) ...

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