People v. Higbee

• Decision Date: 14 March 1974
• Docket Number: Cr. 22987
• Citation: 112 Cal.Rptr. 690,37 Cal.App.3d 944
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Kenneth HIGBEE, Defendant and Appellant.

Page 690

112 Cal.Rptr. 690

37 Cal.App.3d 944

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Kenneth HIGBEE, Defendant and Appellant.

Cr. 22987.

Court of Appeal, Second District, Division 5, California.

March 14, 1974.

Hearing Denied May 8, 1974.

Richard S. Buckley, Public Defender, Harold E. Shabo, Donald Feinberg, Ronald B. Davey, Deputy Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Frederick R. Millar, Jr., and Theodora Berger, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

Defendant William Kenneth Higbee was charged with and convicted of possession of a concealable firearm by a former felon (Pen.Code, § 12021). After motions to dismiss the case (Pen.Code, § 995) and to suppress the evidence (Pen.Code, § 1538.5) had been denied, defendant submitted the case on the preliminary transcript, with appropriate waivers. He was found guilty and sentenced to 90 days in jail, receiving credit for 62 days already served.

FACTS

On a Saturday, September 9, 1972, at 10:00 in the morning, Los Angeles Police Department Officer Sergio Robleto was patrolling the 400 block of North Coronado, a high burglary area, in a black and white patrol car. He observed defendant sitting in a motorcycle in the street in front of 427 North Coronado. Its motor was running. The officer drove to the end of the block, which was a dead-end street. He waited for about a minute and a half, which he 'felt was sufficient time for somebody who was taking off to leave, unless somebody was waiting for somebody else.' ¹ The officer drove back to investigate. Defendant was still sitting on the motorcycle with the engine running.

The officer decided to investigate because there were 'numerous burglaries and motorcycle thefts and burglaries with motorcycles, persons riding motorcycles, being pulled in that area. I decided that it would be prudent to ask him if he lived in the area, since I had not seen him on any prior occasion.' He asked defendant whether he lived in the area; defendant said he lived at 427 North Coronado, the address in front of which he was sitting. The officer asked defendant if he had any identification with that address. Defendant said he did not. The officer then 'asked him for his identification in order to check his ID.' Defendant produced a driver's license with his picture on it. ² The officer decided to run a warrant check, which took about 30 seconds. He learned that there were two traffic warrants for defendant. He advised defendant of this, arrested him, and transported him to the Rampart station. As they arrived at the station, defendant said to Officer Robleto, 'I might as well tell you, I have a gun hidden.' ³ The gun was hidden 'behind and below his waistband, behind the buttock.' It contained five live rounds. The safety was off and it was ready to be fired.

DISCUSSION

The question on this appeal is whether Officer Robleto's questioning of defendant and the resulting warrant check were reasonable under all the circumstances. We hold that they were.

In People v. Courtney, 11 Cal.App.3d 1185, 90 Cal.Rptr. 370, the officer was patrolling a private university residential area. There had been bombings in the area and there were threats of further bombings. The officer observed an oddly dressed person whom he had never seen in the neighborhood before. When the individual appeared to turn his head as if to avoid a confrontation with the officer, the officer stopped him to ascertain his business and to check his identification. The court stated at page 1190, 90 Cal.Rptr. at page 373: 'Because of the stranger's paucity of identification and his statement that he was headed for the home of one known to have a police record, the officer's decision to detain him while he ran a radio check was proper. (See People v. Bloom, 270 Cal.App.2d 731, 735 (76 Cal.Rptr. 137); People v. McVey, 243 Cal.App.2d 215, 217 (52 Cal.Rptr. 269).)'

In People v. Bloom, 270 Cal.App.2d 731, 76 Cal.Rptr. 137, the officer stopped two hitchhiking juveniles carrying bedrolls for the purpose of determining their age. They produced identification showing them to be at least 18 years old but not residents of the county. The officer requested a check by radio to determine if they had a record which would further identify them and also to see if they had any warrants. They argued that the officer had no right to detain them while waiting for a radio check on the authenticity of their identification and that therefore evidence which was obtained during this detention was not admissible. The court held at page 735, 76 Cal.Rptr. at page 141: 'There was nothing unreasonable about the officer's calling for a check-up on appellant and Johnson or in detaining them a few moments while awaiting a report.'

In People v. Wickers, 24 Cal.App.3d 12, 100 Cal.Rptr. 732, police officers were patrolling an area in which there had recently been numerous robberies. The defendant was observed parked at a service station lot in this high crime area for 'some time'; the officer approached the defendant's vehicle and asked him why he was parked and took his driver's license. He told the defendant to remain where he was and ran a warrant check. The court held at page 16, 100 Cal.Rptr. at page 734: 'Wickers' initial detention, effected prior to the arrival of the second vehicle, was lawful, if in fact it was a 'detention.' The interference with Wickers' right to privacy (see People v. Woods, 6 Cal.App.3d 832, 835--836 (86 Cal.Rptr. 264)) was minimal. (Officer) Foland explained to him the reason for the very inquiry he was making, having first ascertained from the station attendant that Wickers was conducting no business on the premises. Wickers was not told to leave his vehicle and was not frisked. He was, however, told to remain at the location while the warrant check was being run. Given the fact of two recent robberies in the area to which the police has been alerted, the time of night, and the fact that Wickers was parked at the station, Foland's decision to run a warrant check on Wickers was justified. The resulting detention was lawful since Wickers' activity in parking at the station was under the circumstances sufficiently unusual, and its connection to a possibly impending robbery sufficiently apparent, to warrant police investigation. (People v. Henze, 253 Cal.App.2d 986, 988 (61 Cal.Rptr. 545).)' (Fn. omitted.)

In People v. Gravatt, 22 Cal.App.2d 133, 99 Cal.Rptr. 287, an officer on patrol in a high crime area at approximately 10 a.m. observed two men standing next to a car. The trunk of the car was open and a television set was in the trunk. As the officer drove up, the men, apparently seeing the officer, shut the trunk and started to walk away. The officer called them back and asked them 'whose stuff was in the back of the car.' The officer asked if he could look in the trunk. The defendant contended that this was an illegal detention. The court held at page 136, 99 Cal.Rptr. at page 288: 'We need not pass upon the question whether a 'detention' in fact occurred. Under the Fourth Amendment the police officer's conduct was illegal only if it was 'unreasonable.' Whether it was unreasonable depends on all the facts and circumstances--the total atmosphere of the case. (People v. Ingle, 53 Cal.2d 407, 412 (2 Cal.Rptr. 14, 348 P.2d 577).) While a detention of a citizen by a police officer based on a 'mere hunch' is unlawful, if there is a rational Suspicion that some activity out of the ordinary is taking place, and some Suggestion that the activity is related to crime, a detention is permissible. (Irwin v. Superior Court, 1 Cal.3d 423, 427 (82 Cal.Rptr. 484, 462 P.2d 12); . . . People v. Manis, 268 Cal.App.2d 653, 661--662 (74 Cal.Rptr. 423).) And, of course, the degree of restraint involved in a 'detention' (here the restraint, if any, was minimal) is an important consideration in determining reasonableness.' (Emphasis in original.)

We need not decide if there was a detention in the case at bench, but, assuming that there was, it was reasonable under the facts and circumstances of this case. In determining the reasonableness of a detention, we must balance the community's interest in law enforcement against the invasion of the interests of the individual. (Terry v. Ohio, 392 U.S. 1, 20--21, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Michelson, 59 Cal.2d 448, 452, 30 Cal.Rptr. 18, 380 P.2d 658.) The inconvenience to defendant was minimal. Defendant gave no indication that he was going anywhere when the officer stopped to question him. He had been parked in front of 427 North Coronado for an unusual period of time for apparently no good reason. The conversation with Officer Robleto was very brief. After defendant stated that he lived at 427 North Coronado but said he had no identification which would show that, Officer Robleto's request to see some identification was reasonable. On receiving defendant's driver's license and observing that it showed an address different from what he had told Officer Robleto, it was reasonable under the total circumstances for Officer Robleto to make further investigation by checking for warrants. If defendant actually had been residing at 427 North Coronado, it would be reasonable to expect him to be able to produce something from the residence to show that he lived there. Defendant made no effort to do so nor did he indicate in any way that he could. The time to make the warrant check was 30 seconds or less. Defendant was seated on a motorcycle with the motor running, stopped in front of 427 North Coronado. The 400 block of Coronado was Officer Robleto's assigned patrol area. The officer had never seen defendant in the neighborhood before. The area was a high crime area and there had been recent crimes involving persons on...