People v. Long

• Decision Date: 02 October 1986
• Citation: 186 Cal.App.3d 216,230 Cal.Rptr. 483
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 186 Cal.App.3d 216 186 Cal.App.3d 216 The PEOPLE, Plaintiff and Respondent, v. Frederick James LONG, Defendant and Appellant. H000965.

Page 483

230 Cal.Rptr. 483

Previously published at 186 Cal.App.3d 216

186 Cal.App.3d 216

The PEOPLE, Plaintiff and Respondent, v. Frederick James LONG, Defendant and Appellant.

H000965.

Court of Appeal, Sixth District, California.

Oct. 2, 1986.

Rehearing Granted Nov. 3, 1986. See 234 Cal.Rptr. 271.

Debra R. Huston, Carmel, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., Ronald E. Niver, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

AGLIANO, Presiding Justice.

I

The constitutional propriety of a police officer's directive to a lawfully detained criminal suspect that he produce identification from his wallet is the principal issue in this case.

Defendant Frederick Long was convicted by his guilty plea of possession of methamphetamine. (Health & Saf.Code, § 11377, subd. (a).) He now seeks reversal of the judgment, claiming erroneous denial of his motion to suppress the evidence of his guilt. (Pen.Code, § 1538.5, subd. (m).) We affirm the judgment but remand for redetermination of pre-sentence credits.

II The Facts

On February 20, 1985, at about 10 p.m., veteran San Jose City Police Officer Dennis Luca and trainee Brian Blackford were in uniform conducting a premises check of a bar in San Jose. Officer Luca noticed defendant conversing with a young woman by a pool table. The woman appeared underage. Defendant was drinking beer. The girl was not seen drinking, but there was an empty cocktail glass near defendant's beer bottle.

Blackford contacted the girl to ask her age. Within a minute, Blackford signaled Luca to come over, because the woman indicated she was 19 years old. Defendant asked Luca why they were "hassling" his friend. Luca explained the law (Bus. & Prof.Code, § 25665) prohibited the presence of underage persons in the bar without a lawful purpose. Defendant told Officer Luca that he and the woman were together but he was the only one drinking. Officer Luca asked defendant to step outside where it was quieter. At that point, Luca considered that defendant was not free to leave.

Officer Luca suspected defendant had encouraged the girl's unlawful entry into and presence in the bar. The officer was also having difficulty in establishing the girl's identity. He asked defendant for identification. Defendant stated his name, but said he did not have any identification with him.

Luca noticed defendant's pupils were dilated and nonresponsive to light. There was a light odor of alcohol on his breath. His mouth was dry and there was a chalky powder at the corners of his mouth. Defendant had no difficulty articulating words, but his sentences were incomplete and his train of thought seemed derailed. He was more agitated than the average person during a police contact.

Officer Luca was trained to recognize symptoms of different types of drug intoxication. He had participated in over 200 arrests for possession of methamphetamine and observed people use it when he worked undercover. This training and experience led him to suspect defendant was under the influence of methamphetamine and he intended to arrest defendant for being under the influence of drugs in violation of Penal Code section 647, subdivision (f).

While defendant had denied having any identification on him, Officer Luca noticed a wallet-sized bulge in his rear pants pocket. He then asked defendant for written identification. Defendant said he had none. The officer then directed defendant to look through his wallet, believing he must have been carrying identification.

Defendant pulled out his wallet to belt-line height but then turned to his left, ducking his right shoulder. Defendant's movement caused Officer Luca to be concerned defendant was concealing or destroying evidence or producing a razor blade. The officer had previously observed razor blades carried in wallets. Luca took defendant by the arm and turned him back so he could see what he was doing. Defendant asked why he was being hassled, and the officer again explained he was investigating the girl's presence in the bar, had to confirm defendant's identity and it seemed inconceivable his wallet would not contain some identification. As Luca watched defendant thumb through the center of the wallet, he saw an address book, other papers, and several open clear plastic baggies or bindles he recognized as common methamphetamine packaging.

Defendant said nothing in the wallet would identify him. Officer Luca asked defendant to hand over the wallet. Luca found plastic baggies containing a white powder which proved to be methamphetamine. He also found identifying papers.

This discovery occurred within five minutes of exiting the bar. Defendant was then arrested for possession of methamphetamine and being under the influence of drugs.

III Scope of Review

On appeal, we review the evidence in a light favorable to the trial court's ruling on the suppression motion. (Guidi v. Superior Court (1973) 10 Cal.3d 1, 10, fn. 7, 109 Cal.Rptr. 684, 513 P.2d 908; People v. Kaaienapua (1977) 70 Cal.App.3d 283, 286, 138 Cal.Rptr. 651; People v. Varela (1985) 172 Cal.App.3d 757, 759, 218 Cal.Rptr. 334.) We uphold those express or implicit findings of fact by the trial court which are supported by substantial evidence. (Cf. People v. Leyba (1981) 29 Cal.3d 591, 596-598, 174 Cal.Rptr. 867, 629 P.2d 961; People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.) Insofar as the evidence is uncontradicted, we do not engage in a substantial evidence review, but face pure questions of law. (Cf. People v. Aldridge (1984) 35 Cal.3d 473, 477, 198 Cal.Rptr. 538, 674 P.2d 240; People v. Gee (1982) 130 Cal.App.3d 174, 179, 181 Cal.Rptr. 524; People v. Flores (1979) 100 Cal.App.3d 221, 228, 160 Cal.Rptr. 839, and cases there cited.) We must independently determine whether the facts support the court's legal conclusions. (Leyba, supra, 29 Cal.3d 591, 597-598, 174 Cal.Rptr. 867, 629 P.2d 961; cf. Aldridge, supra, 35 Cal.3d at p. 477, 198 Cal.Rptr. 538, 674 P.2d 240.)

The enactment of California Constitution (Proposition 8) on June 9, 1982, requires us to apply federal constitutional law to determine whether evidence should be excluded for offenses committed after that date. (In re Lance W. (1985) 37 Cal.3d 873, 886-888, 896, 210 Cal.Rptr. 631, 694 P.2d 744; People v. Lissauer (1985) 169 Cal.App.3d 413, 417, 215 Cal.Rptr. 335; People v. Sanchez (1985) 174 Cal.App.3d 343, 346-347, 220 Cal.Rptr. 53.)

IV The Propriety of Defendant's Detention

The trial court found defendant was lawfully detained for investigation. People v. Loewen (1983) 35 Cal.3d 117, 123, 196 Cal.Rptr. 846, 672 P.2d 436, states: "The law is well-established that 'in 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.... 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 [1968] 392 U.S. , 22 [88 S.Ct. 1868, 1880, 20 L.Ed.2d 889]....)' (In re Tony C. [1978] 21 Cal.3d at p. 893 [148 Cal.Rptr. 366, 582 P.2d 957], fn. omitted; see also Reid v. Georgia (1980) 448 U.S. 438, 440 [100 S.Ct. 2752, 2753, 65 L.Ed.2d 890] ...; Brown v. Texas (1979) 443 U.S. 47, 51 [99 S.Ct. 2637, 2640, 61 L.Ed.2d 357]....)"

An investigative stop or detention may be justified by circumstances not amounting to probable cause to arrest (cf. People v. Flores (1974) 12 Cal.3d 85, 91, 115 Cal.Rptr. 225, 524 P.2d 353; Aldridge, supra, 35 Cal.3d 473, 477, 198 Cal.Rptr. 538, 674 P.2d 240), just as probable cause to arrest does not require proof of guilt beyond a reasonable doubt (cf. People v. Ingle (1960) 53 Cal.2d 407, 413, 2 Cal.Rptr. 14, 348 P.2d 577, cert. den. 364 U.S. 841, 81 S.Ct. 79, 5 L.Ed.2d 65; People v. Superior Court (Price) (1982) 137 Cal.App.3d 90, 96, 186 Cal.Rptr. 734). " '[T]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal--to "enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges. [Citation.]" ' (In re Tony C., supra, 21 Cal.3d, at p. 894 [148 Cal.Rptr. 366, 582 P.2d 957]....)" (Leyba, supra, 29 Cal.3d 591, 599, 174 Cal.Rptr. 867, 629 P.2d 961.)

Here the officer encountered a possible violation of Business and Professions Code section 25665 which provides in part: "Any person under the age of 21 years who enters and remains in the licensed public premises without lawful business therein is guilty of a misdemeanor...." "Lawful business" is something more than merely patronizing an establishment. (Ballesteros v. Alcoholic Bev. etc. Appeals Board (1965) 234 Cal.App.2d 694, 701-702, 44 Cal.Rptr. 633.)

Defendant was a possible principal in the crime. Penal Code section 31 states in part: "All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, ... are principals in any crime so committed." Liability for aiding and abetting requires a person to aid or encourage the commission of a crime by act or advice with awareness of the perpetrator's purpose and with the intent of committing or at least facilitating the offense. (People v. Beeman (1984) 35 Cal.3d 547, 561, 199 Cal.Rptr. 60, 674 P.2d 1318.) Counseling the commission of a misdemeanor is itself a misdemeanor. (Pen.Code, § 659.)

Defendant told the...