People v. Holloway

• Decision Date: 24 December 1985
• Docket Number: No. B008849,B008849
• Citation: 221 Cal.Rptr. 394,176 Cal.App.3d 150
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Earl HOLLOWAY, Defendant and Appellant.

Page 394

221 Cal.Rptr. 394

176 Cal.App.3d 150

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Earl HOLLOWAY, Defendant and Appellant.

No. B008849.

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

Dec. 24, 1985.

Review Denied March 16, 1986.

Richard D. Marino, Los Angeles, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., William R. Weisman, Supervising Deputy Atty. Gen., and Ernest Martinez, Deputy Atty. Gen., for plaintiff and respondent.

GATES, Associate Justice.

Following a "slow plea of guilty" effected by means of a submission upon the transcript of his preliminary hearing (see In re Mosley (1970) 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473), appellant, Robert Earl Holloway, was convicted of possessing cocaine in violation of Health and Safety Code section 11350. He appeals from the ensuing judgment (order granting probation) contending "the cocaine seized from the hand of appellant should have been suppressed as it was a product of an unlawful detention."

At 2:58 a.m. on the morning of May 6, 1984, Officers Lumas and Tucker were on foot patrol in a residential area of Pasadena where "narcotic traffic" regularly takes place. They saw appellant standing with four other males on a grassy area abutting a large apartment complex. Lumas was able to recognize only appellant who was known to frequent the area although he did not reside there. ¹

Since the five men had their backs turned, the officers' approach went unnoticed until they were almost upon the nocturnal huddle. At that point, one of the men saw them, said something and everyone promptly took flight--except appellant who, it appeared, remained unaware of the officers' presence. ² Officer Lumas had closed to only three feet when appellant, realizing he was there, manifested surprise. When the officer said, "hold it," rather than complying, appellant, who had been looking down at his open hand, closed it into a fist and moved his arm "... as if he were going to throw something." Recognizing that appellant was probably attempting to discard contraband, Officer Lumas stopped appellant's arm and opened his hand when appellant refused to do so, disclosing .18 grams of cocaine in rock form.

It is possible that Officer Lumas' initial pronouncement, "hold it," should not be regarded as having created a true "detention." That is, even had appellant's conduct been that of the most honorable and innocent citizen, Officer Lumas would still have been entitled to seek an interview with him regarding the remarkable behavior of his companions.

"... 'There can be no doubt that a police officer in the performance of his duties shares the right of all persons to address another on the public streets, or at least that there is no constitutional proscription of his so doing. "There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets." [Citation.] And so long as his conduct does not constitute a "detention," a police officer may talk to anyone in a public place, "something that any person would lawfully be permitted to do, or try to do." [Citation.] ...' " (In re Danny E. (1981) 121 Cal.App.3d 44, 49, 174 Cal.Rptr. 123.)

Potential ambiguities, of course, will inevitably occur for unless the party with whom the interview is sought remains stationary, at least momentarily, effecting even an initial request for his cooperation, albeit done ever so politely, will prove a most awkward enterprise. (See People v. King (1977) 72 Cal.App.3d 346, 349, 139 Cal.Rptr. 926.)

In any event, if Officer Lumas' mere act of speaking did constitute a form of temporary "custody," under the circumstances, it was certainly justified. Though quoted on other occasions, the observations of our former colleague Justice Macklin Fleming bear repeating here:

"When circumstances demand immediate investigation by the police, the most useful, most available tool for such investigation is general on-the-scene questioning, designed to bring out the person's explanation or lack of explanation of the circumstances which aroused the suspicion of the police, and enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.

"From the point of view of the person detained, temporary detention clearly amounts to some deprivation of his personal freedom of movement. Yet freedom is not absolute, and rights are correlative to duties. The temporary loss of personal mobility which accompanies detention may be deemed part payment of the person's obligation as a citizen to assist law enforcement authorities in the maintenance of public order, an obligation reflected in the operation of such traditional institutions as the sheriff's posse, the hue and cry, etc. (Pen.Code, § 150; Gov.Code, § 26604.) Nor should the deprivation of his freedom of movement be considered all loss by the person detained, for in fulfilling his obligation as a citizen he is also serving his own interest. The person detained has two interests at stake, his specific interest in unrestricted freedom of movement, and his general interest as a member of the community in the preservation of public peace and tranquility. In clearing himself of suspicion and releasing the police for other duties connected with the maintenance of public peace he is broadly serving his general interest as a citizen. Although in times of tranquility he tends to assume that his first interest is paramount and his second one inconsequential, times are not always tranquil, and the persistence of crime and civil disorder serves as a continuing reminder of his substantial and direct interest in public peace, for whose preservation he must at times make some personal sacrifice." (People v. Manis (1969) 268 Cal.App.2d 653, 665-666, 74 Cal.Rptr. 423.)

The facts which aroused Officer Lumas' suspicions here were both specific and articulable. They suggested that some criminal activity was afoot and that appellant might be involved. In arguing to the contrary, appellant primarily relies on People v. Aldridge, supra, 35 Cal.3d 473, 198 Cal.Rptr. 538, 674 P.2d 240, and People v. Bower (1979) 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115. Those cases, however, are readily distinguishable.

In each, the court stressed the fact that there was nothing abnormal about the time or place at which the encounters there under review took place. Thus, Bower, supra, expressly pointed out: "... the time at which the detention occurred (8:37 p.m.), while falling during darkness in winter, is simply not a late or unusual hour nor one from which any inference of criminality may be drawn." (At p. 645, 156 Cal.Rptr. 856, 597 P.2d 115.) With equal emphasis Aldridge, supra, declared, "... being in the area of a liquor store at 10:15 p.m., possibly carrying alcohol, is neither unusual nor suspicious " (35 Cal.3d at p. 473, 198 Cal.Rptr. 538, 674 P.2d 240.) Three a.m., on the other hand, is both a late and an unusual hour for anyone to be in attendance at an outdoor social gathering, particularly in a residential neighborhood where he does not reside.

Furthermore, the subject grouping occurred in a high crime area, known to be frequented by narcotic traffickers. It is true, unfortunately, that today it may be fairly said that our entire nation is a high crime area where narcotic activity is prevalent. Therefore, such factors, standing alone, are not sufficient to justify interference with an otherwise innocent-appearing citizen. (People v. Aldridge, supra, 35 Cal.3d at pp. 478-479, 198 Cal.Rptr. 538, 674 P.2d 240; People v. Bower, supra, 24 Cal. at p. 645, 156 Cal.Rptr. 856, 597 P.2d 115.) Nevertheless, it would be the height of naivete not to recognize that the frequency and intensity of these sorry conditions are greater in certain quarters than in others. Consequently, we must allow those we hire to maintain our peace as well as to apprehend criminals after the fact, to give appropriate consideration to their surroundings and to draw rational inferences therefrom, unless we are prepared to insist that they cease to exercise their senses and their reasoning abilities the moment they venture forth on patrol.

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