People v. Knisely

• Decision Date: 23 November 1976
• Docket Number: Cr. 8322
• Citation: 64 Cal.App.3d 110,134 Cal.Rptr. 269
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. April Dawn KNISELY, Defendant and Appellant.

Page 269

134 Cal.Rptr. 269

64 Cal.App.3d 110

The PEOPLE of the State of California, Plaintiff and Respondent, v. April Dawn KNISELY, Defendant and Appellant.

Cr. 8322.

Court of Appeal, Fourth District, Division 1, California.

Nov. 23, 1976.

Hearing Denied Jan. 19, 1977.

Appellate Defenders, Inc., by Stephen J. Perrello, Jr., San Diego, and Steven B. Bassoff, Certified Legal Intern, Univ. of San Diego, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Karl J. Phaler and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

COUGHLIN, ^* Associate Justice.

Defendant, April Knisely, appeals her conviction of possession of a controlled substance for sale, i.e., L.S.D., a violation of Health and Safety Code section 11378.

Defendant entered a plea of guilty after denial of a motion to suppress evidence, i.e., L.S.D. she allegedly sold to a man and L.S.D. found in a police car under circumstances supporting the conclusion it belonged to her.

On appeal, as in the trial court, defendant contends the evidence she sought to suppress was the produce of an unlawful search and seizure.

The motion was heard on a reporter's transcript of the preliminary hearing.

On September 17, 1975, at about 5 p.m., Officers Gonzales and Nelson ¹ went to the Ocean Beach pier, an area known to them as the location of narcotics operations, where Gonzales had participated in approximately one hundred narcotics-related arrests; stationed themselves at the top of the pier behind a wall overlooking the walkway below; were hidden from view except for their heads; and instituted surveillance of the walkway. Whithin 30 to 60 seconds Gonzales observed a man standing next to and facing a woman, the defendant, whose back was to the officers. The man was counting out money, consisting of 'bills', which he handed to defendant. The latter counted the money and placed it in her left front pants pocket. Gonzales 'couldn't tell the denominations . . . couldn't see what size bills', and did not know how many bills the man handed defendant. Defendant then handed the man something 'very small' which he 'carefully' placed in a cigarette package taken from his shirt pocket. The object was so small the officer 'couldn't see what it was'. The man returned the cigarette package to his shirt pocket. While making the change defendant and the man were looking around 'as if to see if anybody was watching'. They parted and walked away from each other. Officer Nelson volunteered to watch the man; went down a stairway; and contacted him. Gonzales went down another stairway to contact 'the female', i.e., the defendant, and was 30 or 40 feet from Nelson when the latter contacted the man. Gonzales testified, 'Nelson arrested him (the man) and read him his rights per Miranda. He asked him what transpired, and went into the guy's shirt pocket and retrieved the package of cigarettes'. Gonzales testified he was observing Nelson as the latter 'went through these steps'. As Gonzales came down the stairs the defendant saw him, turned quickly around and started walking quickly away. He pursued her, walking 'quickly'; stopped her; asked her to 'step back to the stairs' and accompanied her to the place where Nelson and the man were located. Nelson then told him, i.e., Gonzales, the items in the cigarette package were 'acid', which is the street name for L.S.D.; and the man 'had bought these from the female'. Gonzales then arrested defendant and caused her to be searched. She had $617.02, including four one-dollar bills in her left front pocket. Both suspects were placed in a police car and taken to the police station.

The issue on appeal, as it was at the hearing on the motion to suppress, is whether Officer Nelson had probable cause to arrest and search the man who participated in the transaction with defendant, which the officers observed.

The issue is not whether Nelson had probable cause to stop the man and interrogate him as an investigatory procedure. Nelson arrested the man; gave him a Miranda warning; then asked him what had transpired; and removed the cigarette case from his pocket.

In the lower court defendant contended, and on appeal now contends, the issue is determined by the decision in Cunha v. Superior Court, 2 Cal.3d 352, 85 Cal.Rptr. 160, 466 P.2d 704, holding an arrest under circumstances substantially identical to those at bench was without probable cause.

The judge of the lower court concluded Cunha did not control because the circumstances in that case differed materially from those in the case at bench; denied the motion to suppress; but stated, 'I will say it is a very close case, however.'

We believe the circumstances at bench are not distinguishable from those in Cunha and, although sympathetic with the position of the lower court, are compelled to conclude denial of the motion was error.

We compare the circumstances at bench with those in Cunha.

(1) In both cases the area in which the transaction took place was described by the officers making the arrest, in the words used by the court in Cunha, as an area known for frequent narcotics traffic. In Cunha one of the officers had participated in 15 to 20 narcotics arrests in the area in three months; and the other officer had participated in 30 to 40 arrests in six months. In the case at bench Gonzales participated in 'approximately a hundred narcotics arrests' but when or over what period of time these arrests occurred does not appear. In neither case was there any testimony as to how many of the arrests resulted in convictions. In Cunha the court said, 'Some of the dangers of according officers' views of a location's crime rate substantial weight in estimating the validity of a given intrusion upon a citizen's personal security are suggested by the record before us . . . (a)nd in the absence of any evidence in the record as to how many of those arrests actually vindicated the officers' suspicions, it is impossible to determine how accurate their estimate of the local narcotics traffic was. In short, giving substantial weight to the perceived crime rate of an area may constitute a self-fulfilling prophecy.' (Cunha v. Superior Court, supra, 2 Cal.3d 352, 357 fn. 1, 85 Cal.Rptr. 160, 164, 466 P.2d 704, 708; cf. People v. Maltz, 14 Cal.App.3d 381, 391, 92 Cal.Rptr. 216.) In neither case did the officers testify the previous arrests they had made followed transactions similar to those in the cases on appeal (cf. People v. Maltz, supra, 14 Cal.App.3d 381, 393, 92 Cal.Rptr. 216).

In both of the cases the defendant, 'in broad daylight', had engaged in a transaction, described in Cunha as 'some sort of transaction', between two people involving the exchange between them of money and an object. In Cunha one of the officers testified the suspects 'appeared' to exchange what 'appeared' to be an object for what 'appeared' to be money. In the case at bench Gonzales saw the man count out and give some 'bills' to defendant following which defendant gave the man a small object. In each case the officers were entitled to believe a purchase and sale transaction had occurred between the suspects. There is no material difference in the circumstances, in Cunha and the case at bench, respecting the existence of such a transaction. In the case at bench the trial court said the officers observed the defendant counting dollar bills. Gonzales testified he 'couldn't tell' the denomination of the bills counted by defendant or the man. The evidence showed that after the defendant was arrested the officers found dollar bills in her pocket. What the officers learned after the arrests, of course, is not a basis for probable cause to arrest.

(3) In both cases the suspects were under surveillance and looked around at the time the transaction occurred. In Cunha the suspects were under surveillance, also, before the transaction occurred and during this time were "looking around . . . (l)ooking back and to the side as to see if anyone was watching". (Cunha v. Superior Court, 2 Cal.3d 352, 355, 85 Cal.Rptr. 160, 162.) As to the circumstance at bench, the trial court said: 'They (the man and the defendant) are apparently together and they are looking over their shoulders, which by and of itself is as consistent with innocence as with a suspicious transaction taking place.' With respect to such circumstances the court in Cunha said, '. . . an area known to be the site of frequent narcotics traffic should not be deemed to convert circumstances as innocent as an apparent transaction by pedestrians who seem generally concerned with their surroundings into sufficient cause to arrest those pedestrians. Transactions conducted by pedestrians are not per se illegal, and the participants' apparent concern with privacy does not imply guilt.' (Cunha v. Superior Court, supra, 2 Cal.3d 352, 357, 85 Cal.Rptr. 160, 164.)

(4) In the case at bench, as in Cunha, the officers could not hear what the suspects engaged in the street transactions were saying. What expertise the officers might have had respecting the jargon of the narcotics trade was not a circumstance justifying their suspicion the transaction involved narcotics (see Cunha v. Superior Court, supra, 2 Cal.3d 352, 358, 85 Cal.Rptr. 160). The fact Officer Nelson, after arresting the man and taking the cigarette package from him, referred to the items in the packet and said, "it's acid', which is the street name for L.S.D.', has no relationship to the circumstances preceding the arrest as a basis for probable cause.

(5) In both cases the officers could not identify the object which was the apparent subject of the transaction. In Cunha the officers did not see the object. In the case at bench they saw the object but were able to describe it only as 'something that was very small'. Gonzales testified, 'It was so small I couldn't see what it was from where we were.' Contrary to the...