People v. Horton, Cr. 747

• Decision Date: 29 January 1971
• Docket Number: Cr. 747
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth Don HORTON, Defendant and Appellant.

Page 666

92 Cal.Rptr. 666

14 Cal.App.3d 930

PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth Don HORTON, Defendant and Appellant.

Cr. 747.

Court of Appeal, Fifth District, California.

Jan. 29, 1971.

Hearing Denied March 26, 1971.

James Barakatt, Modesto, for defendant-appellant.

Thomas C. Lynch, Atty. Gen., Charles P. Just and Carol Hunger, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

OPINION

GARGANO, Acting Presiding Justice.

Appellant was convicted of possession of marijuana in violation of Health and Safety Code section 11530. The marijuana was found in appellant's automobile after he consented to a search of the vehicle. Appellant presents two main points for reversal: that the officer who stopped the vehicle did not have probable cause to do so or to detain appellant, that a search made pursuant to consent immediately following an illegal detention is invalid.

The facts are undisputed. Appellant, a 20-year-old youth, was stopped by Officer Winfrey while driving an automobile on McHenry Avenue in Modesto at about 1:15 in the morning. There were two passengers in the car, appellant's 15-year-old brother and his 10-year-old cousin. As Officer Winfrey approached the automobile, he noticed that there was no key in the ignition. The officer mentioned this fact to appellant and was told that appellant had lost the key about two weeks earlier and that he had to 'hot wire' the vehicle to start it. Winfrey asked appellant's permission to search the automobile and permission was granted; he found two burnt cigarettes in the glove compartment. Officer Winfrey then asked to see the vehicle registration slip, and when he discovered that the car was registered to a Lillian Lackus in Rosemead, California, placed appellant under arrest. Appellant was searched, and a rolled cigarette was found in his shirt pocket. All three cigarettes contained marijuana.

It is of course true, as respondent maintains, that the provocation required to permit a police officer to temporarily detain a person for questioning is not the same as that required for a valid arrest or a lawful search (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658). Nevertheless, the right of a police officer to stop a motorist or detain a pedestrian for questioning is not without constitutional restriction. The applicable rules were succinctly summarized by Mr. Justice Tamura in Williams v. Superior Court, 274 Cal.App.2d 709, 711--712, 79 Cal.Rptr. 489, 490, as follows:

'Thus, although circumstances short of probable cause to arrest may justify an officer's act in stopping and temporarily detaining a motorist or pedestrian for questioning, there must be some suspicious or unusual circumstances to justify even this limited invasion of a citizen's privacy. (People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 96, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Henze, 253 Cal.App.2d 986, 988, 61 Cal.Rptr. 545; People v. Perez, 243 Cal.App.2d 528, 531, 52 Cal.Rptr. 514.) Generally, the test is 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. One 1960 Cadillac Coupe, Supra; People v. Stephenson, 268 A.C.A. 989--991--992, (Cal.App.2d 908, 910-- 911) 74 Cal.Rptr. 504; People v. Perez, Supra; Lane v. Superior Court, 271 A.C.A. 933, 936, (Cal.App.2d 821, 824) 76 Cal.Rptr. 895.) More specifically, the officer must be able to point to 'specific and articulated facts which, taken together with rational inferences from the facts, reasonably warrant that intrusion.' (Terry v. Ohio, Supra, (392 U.S. 1), 88 S.Ct. (1868), p. 1880 (20 L.Ed.2d 889, p. 906).) A mere hunch or subjective suspicion will not justify a temporary detention. (Terry v. Ohio, Supra; People v. Perez, Supra; People v. Hunt, 250 Cal.App.2d 311, 314--315, 58 Cal.Rptr. 385.) And unusual activity alone, unless there is some suggestion that it is related to criminality, is insufficient. (See People v. Henze, Supra, 253 Cal.App.2d 986, 988, 61 Cal.Rptr. 545; People v. Manis, 268 Cal.App.2d 653, 660(659), 74 Cal.Rptr. 423.)'

Applying these principles to the instant case, we are impelled to conclude that Officer Winfrey did not have legal cause to stop appellant's automobile. Appellant was driving within the legal speed limits, not erratically, and there were no visible operational defects on the vehicle. Furthermore, although the officer observed two young passengers in the vehicle, he saw no furtive or suspicious movements and he had no information that the youths were being kidnapped, detained or molested in any manner. In fact, the only reason given by Winfrey for stopping appellant was that appellant was driving a vehicle along the streets of Modesto at 1:15 in the morning with two young passengers and that he did not look old enough to be their parent or guardian. Clearly, even if we should assume that what the officer observed constituted unusual activity, and it is difficult to make such an assumption in this modern age, the activity alone did not suggest that it was related to criminality.

The Attorney General argues that Officer Winfrey had reasonable cause to stop appellant's vehicle on suspicion that appellant was aiding and abetting his two young passengers to loiter in violation of the municipal ordinance of the City of Modesto. ¹ However, driving along city streets, even at 1:15...