People v. Lee

• Decision Date: 19 August 1987
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Floyd LEE, Defendant and Respondent. A035109.

Page 32

240 Cal.Rptr. 32

194 Cal.App.3d 975

The PEOPLE of the State of California, Plaintiff and Appellant, v. Floyd LEE, Defendant and Respondent.

A035109.

Court of Appeal, First District, Division 4, California.

Aug. 19, 1987.

As Modified Sept. 15, 1987.

John K. Van de Kamp, Atty. Gen., Ronald E. Niver, Deputy Atty. Gen., San Francisco, for plaintiff and appellant.

James R. Jenner, Public Defender, Clif Taylor, Ass't. Public Defender, Oakland, for defendant and respondent.

POCHE, Associate Justice.

Defendant was charged with possession of heroin for sale. At the preliminary hearing he moved to suppress heroin-filled balloons which had been seized from his person. The magistrate found that the balloons had been properly seized following a detention and pat-search under Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. However, the superior court granted defendant's motion under Penal Code section 995 to set aside the information on the ground that the evidence should have been suppressed. We hold that the magistrate's ruling is sustainable, and that the superior court erred in setting aside the information.

1. Facts.

The evidence adduced at the preliminary hearing established that on February 1, 1986, Officers Dunbar and Robertson were on foot near the intersection of Seventh and Pine Streets in Oakland, asking citizens about possible drug sales in that area. A woman told them that within the preceding five minutes she had been walking past a park on the west side of Wood Street between Eighth and Goss when a man offered to sell her heroin. The area she described was known to Dunbar for "high narcotic activity." The woman said that the man offering the heroin was standing together with another man. It appears that the woman also reported seeing a third man, who turned out to match defendant's description, standing at the northeast corner of Eighth and Wood. ¹

Armed with this information, the officers drove in separate patrol cars to the area described, where they saw three men--two standing together on the west side of Wood, and another (defendant) standing at the northeast corner of Eighth and Wood. As the officers approached, one of the two men standing together called out "rollers, rollers," an expression Officer Dunbar recognized from prior experience as a warning that the police were approaching. There was no one else in the vicinity except defendant.

Immediately after the warning was called, defendant turned and began to walk westbound across Wood Street. Officer Dunbar drove his car to within 15 to 20 feet of him. At that point, before the officer had given any signal or command, defendant turned toward the car and reached inside his jacket. The officer's training and experience indicated that persons involved in the sale of narcotics often arm themselves as protection against would-be pirates. Therefore, Officer Dunbar believed defendant was reaching for a weapon and told him to remove his hand from his jacket, which he did. He then pat-searched the chest area of defendant's jacket. He felt a clump of small resilient objects. He knew the clump was not a weapon but he believed he had touched heroin-filled balloons. He then arrested defendant for possession of heroin, reached inside defendant's jacket, and removed two transparent bags, each containing 50 rolled toy balloons. He then arrested defendant for possessing heroin for sale. It was stipulated for purposes of the preliminary hearing that the balloons in fact contained heroin.

2. Standard of Review.

We are first confronted with an issue of the standard of review to be applied. Since the magistrate denied the motion to suppress and held defendant to answer, the governing principles would appear to be those stated in People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278: "[I]n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoing powers [i.e., to weigh evidence, resolve conflicts, and draw its own inferences], and sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. (People v. Hall (1971) 3 Cal.3d 992, 996 [92 Cal.Rptr. 304, 479 P.2d 664], and cases cited.) On review by appeal or writ, moreover, the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer. (People v. Maltz (1971) 14 Cal.App.3d 381, 389 ; see generally People v. Sanchez (1972) 24 Cal.App.3d 664, 690, fn. 15 .)"

Citing People v. Slaughter (1984) 35 Cal.3d 629, 200 Cal.Rptr. 448, 677 P.2d 854, defendant contends that we should review the record "independently" because the magistrate made no express findings. This contention rests on a misconstruction of Slaughter, which involves the standard of review to be applied when the magistrate has found the evidence insufficient to bind the defendant to answer under Penal Code section 872. The court noted that the magistrate has a "limited role" in that situation and "is not a trier of fact." (35 Cal.3d at p. 637, 200 Cal.Rptr. 448, 677 P.2d 854.) Indeed the magistrate's task may be performed without exercising any factfinding functions whatsoever. (Id. at p. 638, 200 Cal.Rptr. 448, 677 P.2d 854.) Therefore, unless the magistrate actually makes findings, the reviewing court cannot assume that any factual issues have been resolved and, for this reason, cannot indulge factual inferences in favor of the ruling. (People v. Slaughter, supra, 35 Cal.3d at p. 638, 200 Cal.Rptr. 448, 677 P.2d 854.) This reasoning does not mean that all factual determinations by a magistrate are independently reviewed if not embodied in express findings.

Defendant also cites People v. Aldridge (1984) 35 Cal.3d 473, 477, 198 Cal.Rptr. 538, 674 P.2d 240, apparently implying that we should exercise our independent judgment as to the facts because they are "undisputed." However, the present case is not properly characterized as one of "undisputed facts," even though the testimony of officers Dunbar and Robertson (which comprises the entire record of the preliminary hearing) is uncontradicted. The evidence supports conflicting inferences as to "what the officer actually perceived, or knew, or believed, and what action he took in response." (People v. Leyba (1981) 29 Cal.3d 591, 596, 174 Cal.Rptr. 867, 629 P.2d 961.) One such issue is what, if anything, the citizen informant said about defendant's presence at the scene of the attempted heroin sale. (See footnote 1, above.) Another is the timing of Dunbar's tactile recognition of the heroin balloons: defendant contends that this came after Dunbar discovered that defendant was not armed; the People describe the events as more or less simultaneous. To the extent the magistrate chose from among conflicting inferences on these points, he decided "traditional questions of fact" (People v. Leyba, supra, 29 Cal.3d at p. 596, 174 Cal.Rptr. 867, 629 P.2d 961), and we indulge all reasonable inferences in favor of his order.

3. Initial Stop.

We next consider whether there was sufficient justification for Officer Dunbar's initial detention of defendant. The governing principles were stated in In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957: "[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience ..., to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. (Terry v. Ohio, supra, 392 U.S. at p. 22 [88 S.Ct. at p. 1880, 20 L.Ed.2d at pp. 906-907].)" (Fn. omitted.)

Officer Dunbar could reasonably believe that criminal activity was occurring here, based on the citizen informant's statement that she had just been offered heroin. Such a tip may be relied upon even if the citizen informant's reliability has not been tested. (People v. Duren (1973) 9 Cal.3d 218, 240, 107 Cal.Rptr. 157, 507 P.2d 1365.)

Several additional facts known to Officer Dunbar supported a more particular suspicion directed at defendant: (1) For at least five minutes, he had been standing in the vicinity of persons reported to be selling drugs; (2) one of the sellers called a warning, which was apparently addressed to defendant since there was no one else in the vicinity; (3) in apparent response to the warning defendant began to leave the area; and (4) upon the officer's approach defendant turned toward him and reached into his jacket, where based on his experience the officer could reasonably expect a narcotics vendor to be keeping a weapon.

No detention had yet occurred when defendant reached into his jacket. Officer Dunbar had done nothing other than drive to a point near defendant. Apparently he had not even gotten out of his patrol car. He had not accosted defendant. (Compare People v. Bower (1979) 24 Cal.3d 638, 643, 156 Cal.Rptr. 856, 597 P.2d 115.) There is no evidence that he was or appeared to be chasing defendant. (Compare People v. Washington (1987) 192 Cal.App.3d 1120, 236 Cal.Rptr. 840.) Nor does the record disclose any other display of authority which would have made a...