People v. King

Decision Date22 November 1994
Docket NumberNo. A060701,A060701
Citation30 Cal.App.4th 328,36 Cal.Rptr.2d 365
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 30 Cal.App.4th 328, 34 Cal.App.4th 1576, 39 Cal.App.4th 744, 43 Cal.App.4th 1770 30 Cal.App.4th 328, 34 Cal.App.4th 1576, 39 Cal.App.4th 744, 43 Cal.App.4th 1770 The PEOPLE, Plaintiff and Respondent, v. Marlon Julius KING et al., Defendants and Appellants.

Julie Schumer, under appointment by the Court of Appeal, Orinda, William P. Cole, Krech & Cole, under appointment by the Court of Appeal, Oakland, Jean Allen, under appointment by the Court of Appeal, San Francisco, Victor Blumenkrantz, under appointment by the Court of Appeal, Berkeley, for defendants and appellants.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Asst. Atty. Gen., Ann K. Jensen, Christina V. Kuo, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CORRIGAN, Associate Justice.

Marlon King, Salema Dickerson, Earl Joseph, and Rodney Canada were convicted by jury of robbery (Pen.Code, § 211) 1 and destruction of telephone lines (§ 591). On appeal, they contend the court erred in denying their motion to suppress the evidence 2 found after a traffic stop. They argue the stop was an illegal pretext to search for evidence of the robbery. Concluding the motion was properly denied, we affirm. King, Joseph, and Canada also assert that section 654 3 compels a stay of their sentences for destruction of telephone lines. We agree and modify their sentences accordingly.

FACTS 4

On July 21, 1992, shortly before midnight, Officer Hartley of the Walnut Creek Police Department received a dispatch concerning an armed robbery that had just occurred at a nearby motel. The dispatch reported that three Black men, dressed in dark clothing, were involved and that they escaped on foot heading south from the motel. A weapon was reportedly used.

As Officer Hartley drove toward the motel, he noticed a blue Toyota 4-Runner heading away from that location. Hartley saw two occupants, a Black female driver and a Black male passenger. The Toyota attracted Hartley's attention because it was driving away from the general direction of the motel, was the only car on the road at that late hour, and one occupant was a Black man. He followed the car for just over half a mile and noticed nothing suspicious about the driving pattern. He asked the dispatcher for the robbery suspects' ages, but none were known. He was looking for any Vehicle Code violation so he could stop the car to investigate the robbery.

The Toyota's registration had expired, and Officer Hartley stopped it on that basis. His Hartley radioed for backup as soon as he pulled the Toyota over, then used his loudspeaker to order the driver out of the car. He told the driver (defendant Dickerson) to produce her identification and asked whether anyone else was in the car. Hartley did not ask Dickerson about the expired registration because she began talking about it immediately after getting out of the car. He told her both that he had pulled her over for an expired registration and that he was investigating an armed robbery and would appreciate her cooperation.

intention, however, was also to investigate the robbery. In fact, Hartley testified that investigating the robbery was his foremost concern.

During the conversation between Hartley and Dickerson, Officer Norwood arrived and approached Hartley. A few seconds later, the passenger (defendant Joseph) left the car carrying a baby and headed towards Officer Hartley. Hartley had not previously seen the baby. He ordered Joseph back into the car. Officer Norwood then told Hartley that he saw someone in the back seat of the Toyota.

Hartley turned around and, for the first time, saw another man in the back seat. Joseph and the back-seat passenger (defendant Canada) were ordered out of the car. As they complied, Sergeant Bennett arrived at the scene. He had information the robbery suspects wore black or dark shirts and one wore brown pants.

Sergeant Bennett approached the car to make sure no one else was in it. From outside, he saw a third Black man (defendant King) hiding underneath some clothes in the back cargo area and ordered him to come out. King was wearing brown pants. The car was searched, revealing, among other things, a bag containing a large number of loose dollar bills.

Officer Hartley did not cite Dickerson for driving with an expired registration. Asked whether he had planned to cite her, Hartley answered he "hadn't really thought about it."

DISCUSSION
I. Validity of Traffic Stop

Defendants contend the stop of their vehicle for an expired registration was an unconstitutional pretext for investigating the robbery without reasonable suspicion they were the robbers. We conclude that, viewed objectively, the stop was legally authorized.

The issue we consider here is what standard to apply in deciding whether police action constitutes a pretextual stop requiring suppression of evidence. "The subject of pretextual arrests presents some of the most intriguing historical, conceptual and practical issues in the often problematic area of fourth amendment jurisprudence. By definition, a pretextual arrest occurs when the police employ an arrest based on probable cause as a device to investigate or search for evidence of an unrelated offense for which probable cause is lacking." (U.S. v. Trigg (7th Cir.1989) 878 F.2d 1037, 1038-1039.)

The question whether an officer's ulterior investigatory motive has any bearing on the validity of an otherwise legal detention or search has generated considerable discussion and diverse viewpoints. Much of the recent debate was prompted by United States Supreme Court decisions limiting the Fourth Amendment analysis, in various contexts, to " '... an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978), and not [depending] on the officer's actual state of mind at the time the challenged action was taken." (Maryland v. Macon (1985) 472 U.S. 463, 470-471, 105 S.Ct. 2778, 2782-2783, 86 L.Ed.2d 370 [rejecting defense argument that purchase by detective of obscene magazines was a search because purchase made as part of a pornography investigation]; see also United States v. Villamonte-Marquez (1983) 462 U.S. 579, 584 & fn. 3, 103 S.Ct. 2573, 2577 & fn. 3, 77 L.Ed.2d 22 [customs officers' boarding of vessel in reliance on statute, with roots circa 1790, authorizing document inspection not invalidated because officers were acting on drug tip and were accompanied by state policeman].)

A recent California case, People v. Miranda (1993) 17 Cal.App.4th 917, 21 Cal.Rptr.2d 785 provides an insightful overview of how other, primarily federal, jurisdictions have attempted to "harmonize the concept of pretextual arrests with the Supreme Court's pronouncements...." (Id. at p. 924, 21 Cal.Rptr.2d 785.) As Miranda notes, three approaches or tests have emerged: one focusing, despite the Supreme Court's statements, on the officer's subjective motivation, and two distinct objective tests (called "majority" and "minority" by the Miranda court) focusing on the objective reasonableness of the officer's actions. (Id. at pp. 924-925, 21 Cal.Rptr.2d 785.)

Courts applying a subjective test look to the "motivation or primary purpose of the arresting officers." (United States v. Smith (9th Cir.1986) 802 F.2d 1119, 1124; see, e.g., U.S. v. Daniel (D.Nev.1992) 804 F.Supp. 1330, 1335 [unsafe U-turn was mere pretext for traffic stop where officers' primary purpose was to search car and interrogate occupants in effort at " 'gang suppression' "]; People v. Aguilar (1991) 228 Cal.App.3d 1049, 1052, 279 Cal.Rptr. 246 [arrest for driving with suspended license, after traffic stop, was invalid because done for " 'an investigatory police motive' "].) 5

The majority objective test looks simply to the legal authorization for the officer's actions, treating as irrelevant both the officer's subjective motivation and the degree to which the questioned conduct would have been unusual absent the investigatory motive. "[S]o long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry." (U.S. v. Causey (5th Cir.1987) 834 F.2d 1179, 1184, fn. omitted; accord, U.S. v. Trigg, supra, 878 F.2d at p. 1041; U.S. v. Cummins (8th Cir.1990) 920 F.2d 498, 501; People v. Miranda, supra, 17 Cal.App.4th at pp. 924-925, 21 Cal.Rptr.2d 785.)

The minority objective test, apparently originating in United States v. Smith (11th Cir.1986) 799 F.2d 704, seeks to simplify the analysis by declaring the officer's subjective intent irrelevant. Instead it focuses on standard local practice and asks "not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose." (Id. at p. 709, emphasis in original; accord, U.S. v. Cannon (9th Cir.1994) 29 F.3d 472, 476; U.S. v. Guzman (10th Cir.1988) 864 F.2d 1512, 1517.) "In essence, the 'reasonable officer' test asks courts to determine whether the arresting officer's conduct deviated from the usual practice of a 'reasonable officer.' To do this in a given case, the court must inquire into how police normally treat the particular Vehicle Code violation on which the stop was based. This 'usual practice' is then elevated to a standard of procedure which the 'reasonable officer' would have followed." (People v. Miranda, supra, 17 Cal.App.4th at p. 928, 21 Cal.Rptr.2d 785; see, e.g., U.S. v. Guzman, supra, 864 F.2d at p. 1518 [constitutionality of stop depends upon whether "police officers in New...

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3 cases
  • Taylor v. State, 25287
    • United States
    • Supreme Court of Nevada
    • October 4, 1995
    ...conduct was unreasonable under the fourth amendment." Id. 21 Cal.Rptr.2d at 792. Most recently, the court in People v. King, 34 Cal.App.4th 1576, 36 Cal.Rptr.2d 365, 368 (1994), cert. granted, 39 Cal.Rptr.2d 823, 891 P.2d 803 (1995), held that "the subjective motivation of an arresting offi......
  • State v. Daniel
    • United States
    • United States State Supreme Court of Florida
    • September 28, 1995
    ...by a minor infraction--was of a kind falling within the usual practices of the same or similar agencies. People v. King, 34 Cal.App.4th 1576, 36 Cal.Rptr.2d 365, 368 (1994). We agree with the California appeals court, id., that the United States Supreme Court most probably has disfavored th......
  • People v. King, S044061
    • United States
    • United States State Supreme Court (California)
    • June 26, 1996
    ...Respondent v. Marlon Julius KING et al., Appellants. No. S044061. Supreme Court of California. June 26, 1996. Prior report: Cal.App., 36 Cal.Rptr.2d 365. Pursuant to rule 29.4(c), California Rules of Court, the above-entitled review is DISMISSED and cause is remanded to the Court of Appeal,......

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