People v. Henze

• Decision Date: 29 August 1967
• Docket Number: Cr. 12310
• Citation: 253 Cal.App.2d 986,61 Cal.Rptr. 545
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Arthur HENZE, Jr., and Paul Michael Hulten, Defendants and Appellants.

Page 545

61 Cal.Rptr. 545

253 Cal.App.2d 986

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Arthur HENZE, Jr., and Paul Michael Hulten, Defendants and Appellants.

Cr. 12310.

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

Aug. 29, 1967.

Hearing Denied Oct. 25, 1967.

Luke McKissack, Los Angeles, Sam Major, San Pedro, for appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Thomas A. Freiberg, Jr., Los Angeles, for respondent.

FLEMING, Associate Justice.

Burglary.

The questions at issue are the validity of the detention, search, and arrest of the defendants at the time of their apprehension.

The facts of their arrest are these: about 2:30 p.m. on February 24, 1965, two police officers at a distance of 220 feet saw the defendants, whom they did not know, seated on the grass in a public park. Officer Satterlee testified they appeared to be dividing objects which shone in the sunlight. Officer Turman observed the defendants through binoculars and testified they appeared to be counting coins and passing them back and forth. He could not actually see coins, but when one of the defendants got up Officer Turman saw him put what appeared to be a roll of coins in his pocket. The defendants then walked to a parked car and drove off, driving in a normal fashion and observing the traffic laws. The police officers followed in a patrol car, then drove alongside the defendants, identified themselves, and ordered the defendants to stop their vehicle. At that time Hulten leaned forward and appeared to put something under the front seat, and Henze drove the car about 300 feet before stopping.

The defendants were ordered out of the car and searched for weapons, and in the search the police found a bottle of red capsules in Hulten's pocket. The defendants were then arrested for violation of the narcotic laws, and a further search of their persons and their automobile uncovered a quantity of small change and miscellaneous property, later identified as the proceeds of the burglary for which the defendants were here charged and convicted. The red capsules were sleeping pills which had been stolen in the same burglary.

The charge of burglary was amply proved. Nor do we question the validity of the search for weapons and the subsequent arrest of the defendants, if their initial detention was authorized. (People v. Mickelson, 59 Cal.2d 449, 450, 454, 30 Cal.Rptr. 18, 380 P.2d 658.) The key issue is whether there was a sufficient basis to justify the temporary detention of the defendants at the time they were caught.

Circumstances short of probable cause for an arrest may justify temporary detention of a person by a peace officer for investigation and questioning. (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Martin, 46 Cal.2d 106, 108, 293 P.2d 52.) While the circumstances which will justify temporary detention have not been articulated with precision, still from the cases we have acquired a rough picture of the situations in which such a detention is warranted. First, there must be a rational suspicion by the peace officer that some activity out of the ordinary is or has taken place. Next, some indication to connect the person under suspicion with the unusual activity. Finally, some suggestion that the activity is related to crime. ¹

Although we find sufficient indications in this case that the defendants were engaged in some unusual activity, we do not find sufficient suggestion in the record that their unusual activity was related to crime. In order to justify temporary detention for investigation and questioning, a somewhat more positive showing of a rational suspicion of criminal activity is required than the one disclosed in the present record. The added showing need amount to very little more than what we already have. For example, if this incident had taken place during the hours of darkness, its timing alone would have provided a sufficient extra factor to justify temporary detention for investigation. 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. ² (People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Martin, 46 Cal.2d 106, 293 P.2d 52; People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57.)

Yet nighttime activity is not an element which is essential to the validity of temporary detention. Other factors may combine with those set forth in the present record to provide a sufficient basis for temporary detention:

Had the officers had a report of a current burglary, that factor might have furnished sufficient added suspicion to justify detention. (People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Gibson, 220 Cal.App.2d 15, 20--21, 33 Cal.Rptr. 775.) But here the officers had no knowledge of the particular burglary, either at the time of their original observations or at the time of the detention.

Had the park where the police observed the defendants been known as a place where crimes, such as the sale of narcotics, had frequently and currently taken place, this might have provided sufficient justification for the detention. (People v. McGlory 226 Cal.App.2d 762, 764, 38 Cal.Rptr. 373.)

Had the police received information that criminal activity was scheduled to take place in the park of a type consistent with what the suspects were seen doing, this might have justified the detention. (People v. Martinez, 228 Cal.App.2d 739, 39 Cal.Rptr. 839.)

Had these officers known of a rash of recent petty burglaries in the neighborhood, this too might have provided the necessary additive to justify temporary detention. (People v. McClain, 209 Cal.App.2d 224, 26 Cal.Rptr. 244.)

Had the officers known that one of the defendants had previously been convicted of burglary, which in fact he had, this might have provided sufficient reason for the detention. (People v. Perez, 243 Cal.App.2d 528, 530, 52 Cal.Rptr. 514.)

Had the defendants been observed driving their car in an erratic or suspicious fashion, this might have provided sufficient justification for stopping them. (People v. Anguiano, 198 Cal.App.2d 426, 18 Cal.Rptr. 132; Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966).)

Had the defendants been seen sitting in a parked car at an unusual time and place, this might have justified their detention. (People v. Martin, 46 Cal.2d 106, 108, 293 P.2d 52; People v. Cowman, 223 Cal.App.2d 109, 118, 35 Cal.Rptr. 528.)

Had the defendants given the officers cause to believe they were violating the motor vehicle laws, this, too, would have justified their detention for investigation. (Veh.Code, § 2804.)

If any one of these factors had been added to the circumstances of the present case, then perhaps a rational suspicion of crime sufficient to justify temporary detention would have been established. But, as the case has been brought to us, none of these supplemental factors were involved, and justification for the defendants' detention does not appear to have been adequately established in the record. The case for detention boils down to the fact that the police saw two unknown men seated on the grass in a public park at 2:30 p.m. handling objects which shone in the sun. While this conduct qualified as unusual activity, we think the police acted prematurely in detaining the defendants without further information to fortify their initially-aroused suspicions and to link this unusual activity in some fashion with crime. Accordingly, on the present record the evidence obtained as a result of the detention falls within the classification of improperly-obtained evidence which should have been denied admission. (People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513.)

The other justification relied upon to support the detention was that both defendants were on probation from previous convictions and therefore subject to arrest without warrant by any police officer. (Pen.Code, § 1203.2.) The People argue that since the defendants were subject to arrest by any police officer, a fortiori they were subject to the lesser restraint of temporary detention. The argument is good, but it does not apply. It is inapplicable because the police officers at the time of detention did not know that defendants were probationers. If an arresting officer has no knowledge of the status of the person arrested that status cannot validate an arrest without probable cause. (People v. Gallegos, 62 Cal.2d 176, 178, 41 Cal.Rptr. 590, 397 P.2d 174.) The principle is comparable to the one that a search cannot be justified by what it later turns up. (People v. Brown, 45 Cal.2d 640, 290 P.2d 528.) Since the police officers in the present case did not know the two suspects were probationers, they were required to have a rational suspicion of criminal activity in order to temporarily detain.

We conclude that the burglary convictions must be reversed for prejudicial error in the admission of evidence. We reach this conclusion reluctantly, in the face of alert and vigilant activity by the police which resulted in the arrest of two burglars caught red-handed while still in possession of their loot. It is a melancholy fact that only a fraction of all burglary cases are ever solved, even nominally. ³ But to preserve the balance between the investigative activity of the police and the freedom of individuals to circulate in public places during daylight hours, a somewhat stronger suspicion of criminal activity is required to justify temporary detention than that presented here. We realize that this case was submitted on the transcript of the preliminary hearing and that proof of the circumstances leading to detention was fragmentary. ...