People v. Lathan

• Decision Date: 01 May 1974
• Docket Number: Cr. 24150
• Citation: 38 Cal.App.3d 911,113 Cal.Rptr. 648
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Richard Earl LATHAN, Defendant and Respondent.

Page 648

113 Cal.Rptr. 648

38 Cal.App.3d 911

The PEOPLE of the State of California, Plaintiff and Appellant, v. Richard Earl LATHAN, Defendant and Respondent.

Cr. 24150.

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

May 1, 1974.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim and Daniel L. Bershin, Deputy Dist. Attys, for plaintiff and appellant.

Richard S. Buckley, Public Defender, Harold E. Shabo, David E. McCrory and H. Reed Webb, Deputy Public Defenders, for defendant and respondent.

LILLIE, Associate Justice.

Defendant was charged with possession of a .22 caliber revolver (§ 12021, Pen.Code) after having been convicted of first degree robbery on December 3, 1969. The People appeal from order suppressing evidence (§ 1538.5, Pen.Code) and dismissing the cause (§ 1385, Pen.Code). The sole issue is whether defendant was initially unlawfully detained. ¹

The motion was submitted on the transcript of the testimony taken at the preliminary hearing. Around 10:15 p.m. Officers Watson and Brophy observed defendant driving a 1960 white Cadillac southbound on La Brea, make a right turn onto a public parking lot of a shopping complex and stop near a liquor store; Officer Watson testified that '(b)ased on my knowledge of crime in that area at that time of night I felt my further observation of the situation was warranted,' thus he stopped his vehicle across the street on private property approximately 75 feet from where defendant had parked; the neon sign and other lights of the liquor store were on but he saw no one in the store; he watched defendant exit the Cadillac and place his hands behind his back underneath a three-quarter length jacket; standing directly in front of the liquor store, defendant continued making motions with his hands which appeared to him as if defendant was placing something behind his back, then he saw defendant knock two or three times on the door; he could observe no movement inside and he was 'not sure' the liquor store was open 'because it was the time of the day when they were just closing up,' but 'possibly' it may have been open; defendant looked in numerous directions and at one point turned to his right and looked over his shoulder in Officer Watson's direction, then immediately re-entered his vehicle (it took 10 to 15 seconds for defendant to walk to his Cadillac) and drove across the parking lot re-entering La Brea Avenue; defendant was in front of the liquor store approximately one to two minutes; Officer Watson stopped him on La Brea--'(b)ased on my observations I felt it warranted that I stop the defendant.' Defendant exited his vehicle and Officer Watson asked him for some means of identification and the registration to the vehicle; defendant showed him identification and with his consent the officer entered the Cadillac to take the registration certificate from the glove compartment when he observed what appeared to be the barrel of a handgun protruding from under the left front seat of the vehicle; the officer took the loaded gun from beneath the seat and placed defendant in custody.

'(A) police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest,' and temporarily detain him therefor. (Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889; Adams v. Williams, 407 U.S. 143, 145--146, 92 S.Ct. 1921, 32 L.Ed.2d 612; People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Martin, 46 Cal.2d 106, 108, 293 P.2d 52; People v. Orr, 26 Cal.App.3d 849, 857--858, 103 Cal.Rptr. 266; People v. Nickles, 9 Cal.App.3d 986, 991, 88 Cal.Rptr. 763; People v. Adam, 1 Cal.App.3d 486, 488, 81 Cal.Rptr. 738.) However, 'the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' (Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906; People v. Block, 6 Cal.3d 239, 244, 103 Cal.Rptr. 281, 499 P.2d 961.) 'Thus, a detention based on 'mere hunch' is unlawful (People v. Nailor, 240 Cal.App.2d 489, 493, 49 Cal.Rptr. 616), even though the officer may have acted in good faith (Terry v. Ohio, Supra, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906). There must be a 'rational suspicion by the peace officer that some activity out of ordinary is or has taken place . . . some indication to connect the person under suspicion with the unusual activity . . . (and) some suggestion that the activity is related to crime.' (People v. Henze, 253 Cal.App.2d 986, 988, 61 Cal.Rptr. 545.) Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. (People v. Moore, Supra, 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800; People v. One 1960 Cadillac Coupe, Supra, 62 Cal.2d 92, 96, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Escollias, 264 Cal.App.2d 16, 19--20, 70 Cal.Rptr. 65; People v. Hunt, 250 Cal.App.2d 311, 314, 58 Cal.Rptr. 385.)' (Irwin v. Superior Court, 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 486, 462 P.2d 12, 14; People v. Gale, 9 Cal.3d 788, 798, 108 Cal.Rptr. 852, 511 P.2d 1204; People v. Triggs, 8 Cal.3d 884, 895, 106 Cal.Rptr. 408, 506 P.2d 232; People v. Superior Court (Simon), 7 Cal.3d 186, 200, 101 Cal.Rptr. 837, 496 P.2d 1205; Cunha v. Superior Court, 2 Cal.3d 352, 356, 85 Cal.Rptr. 160, 466 P.2d 704; People v. Gravatt, 22 Cal.App.3d 133, 136--138, 99 Cal.Rptr. 287; People v. Griffith, 19 Cal.App.3d 948, 950, 97 Cal.Rptr. 367; People v. Adam, 1 Cal.App.3d 486, 489, 81 Cal.Rptr. 738.) The dircumstances that distinguish the activity of the person detained from that of any other person must be based on an objective perception of events rather than the subjective feelings of the detaining officers. (Irwin v. Superior Court, 1 Cal.3d 423, 426, 82 Cal.Rptr. 484, 462 P.2d 12; People v. Moore, 69 Cal.2d 674, 682, 72 Cal.Rptr. 800, 446 P.2d 800.)

The weakness of the case at bench lies in the absence in the record of any testimony concerning precisely the suspicion, if any, Officer Watson had, and the failure of the officer to point to specific and articulable facts which reasonably warranted 'a rational suspicion' that defendant's activity was out of the ordinary or criminally motivated. (People v. Martin, 9 Cal.3d 687, 692, 108 Cal.Rptr. 809, 511 P.2d 1161; People v. Block, 6 Cal.3d 239, 244, 103 Cal.Rptr. 281, 499 P.2d 961; Cunha v. Superior Court, 2 Cal.3d 352, 356, 85 Cal.Rptr. 160, 466 P.2d 704; Irwin v. Superior Court, 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 462 P.2d 12; People v. Henze, 253 Cal.App.2d 986, 988, 61 Cal.Rptr. 545.) The record supports no more than an inarticulated hunch of the police officer (People v. Gale, 9 Cal.3d 788, 797--798, 108 Cal.Rptr. 852, 511 P.2d 1204; People v. Chapman, 34 Cal.App.3d 44, 47, 109 Cal.Rptr. 840; People v. Orr, 26 Cal.App.3d 849, 858, 103 Cal.Rptr. 266; People v. Gravatt, 22 Cal.App.3d 133, 136--139, 99 Cal.Rptr. 287) on the basis of which the detention was unlawful.

Whether Officer Watson's conduct was reasonable depends on all of the facts and circumstances peculiar to it and totally considered. (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Nickles, 9 Cal.App.3d 986, 991, 88 Cal.Rptr. 763.) After defendant stopped near the liquor store, Officer Watson felt 'further observation was warranted' because of his 'knowledge of crime in that area at that time of night'; the lights were on but he saw no one in the store and was not sure if it was open since at that time of day liquor stores in that area are 'just closing up.'

While 'knowledge of crime in that area' at 10:15 p.m. well may justify further observation of defendant, and a described crime rate may be considered as part of 'the total atmosphere of the case' (People v. Gravatt, 22 Cal.App.3d 133, 136, 99 Cal.Rptr. 287, 289) in determining whether the detention was reasonable, the officer here, assigned to Wilshire Accident Investigation Division, did not indicate the type of 'crime' involved in that area or infer that he had knowledge of any report of a particular crime committed or being committed there or describe the crime rate at that location. Even a high crime area without more does not convert defendant's conduct into sufficient cause to detain him. (Cunha v. Superior Court, 2 Cal.3d 352, 357, 85 Cal.Rptr. 160, 466 P.2d 704; People v. Moore, 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800.)

'(T)hat time of night' was also a factor considered by Officer Watson. It is true that conduct which might not warrant detention in the daytime may be sufficient at night (People v. Chapman, 34 Cal.App.3d 44, 47, 109 Cal.Rptr. 840; People v. Superior Court (Martin), 20 Cal.App.3d 384, 388, 97 Cal.Rptr. 646; People v. Henze, 253 Cal.App.2d 986, 989, 61 Cal.Rptr. 545), but 10:15 p.m. is hardly a late or unusual hour. The time of night, of course, should be considered in relation to the location--its remoteness, available lighting, the presence of others nearby and its accessibility.

Officer Watson watched defendant exit his white Cadillac, make movementswith his hands behind his back under his three-quarter length jacket in such a way that it appeared to him defendant was placing something behind his back, knock on the front door several times, look in numerous directions and at one point turn to his right and look over his shoulder in his direction, re-enter his vehicle and drive across the parking lot into the traffic on La Brea Avenue. To invest the observable circumstances relied on by the officer with guilty significance, they must be such as to warrant 'a rational suspicion' that some activity out of the ordinary is taking place and suggest that it is related to...