People v. Loudermilk

• Decision Date: 28 October 1987
• Docket Number: No. A034103,A034103
• Citation: 195 Cal.App.3d 996,241 Cal.Rptr. 208
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Peter Lynn LOUDERMILK, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 208

241 Cal.Rptr. 208

195 Cal.App.3d 996

The PEOPLE of the State of California, Plaintiff and Respondent, v. Peter Lynn LOUDERMILK, Defendant and Appellant.

No. A034103.

Court of Appeal, First District, Division 5, California.

Oct. 28, 1987.

Review Denied Feb. 4, 1988.

J. Bradley O'Connell, under appointment by the Court of Appeal, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Martin Kaye, Supervising Deputy Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

LOW, Presiding Justice.

Defendant Peter Lynn Loudermilk pleaded no contest to charges of assault with a firearm (Pen.Code, § 245, subd. (a)(2)) and to a Penal Code section 12022.7 allegation (inflicting great bodily injury with intent to inflict such injury). Prior to his plea, defendant made a motion to suppress (Pen.Code, § 1538.5), which was denied. He appeals from the judgment, challenging the denial of his suppression motion (Pen.Code, § 1538.5, subd. (m)). We affirm.

Benjamin Bill was sleeping in a tree grove near a highway ramp. He was awakened around 3 a.m. by what sounded like three firecrackers. Bill had been shot below the right earlobe and the bullet exited at the right base of his chin.

When the officers arrived on the scene, they obtained from Joey Lightfoot a description of the man who had fired the shots. Lightfoot described a white male, approximately five feet, eight inches tall, average build, wearing a long-sleeve shirt and dark pants, and carrying a .22 caliber pistol. Lightfoot also stated that he saw the individual run east along Dry Creek Road toward Healdsburg. The police broadcasted the description.

Deputy Sheriffs Sanford Geaslin and Bob Haran responded to the broadcast, and, at 4:30 a.m., while searching north of Healdsburg on Highway 101, they spotted defendant hitchhiking. Defendant's appearance matched the broadcast description. Officer Geaslin requested defendant to produce identification; defendant responded that he didn't have any. Officer Geaslin then patsearched him for weapons, but found none. The officer did, however, feel a wallet in defendant's right rear pocket. Officer Geaslin reached in, removed the wallet, opened it up and began searching for identification.

Upon opening the wallet, Geaslin saw two pieces of paper with several names on them, which he gave to Officer Haran. Geaslin also gave Haran some pieces of identification from defendant's wallet, which Haran took to the car and used to run an identification check. At that point, defendant began crying and saying, "I shot him. Something went wrong in my head. I thought he was going to shoot me, so I shot him." Defendant also said, "Come on, I'll show you where the gun is by the old boxcar." Geaslin noted that defendant was "real excited" and "obviously stressed out." Geaslin then handcuffed him, placed him in the car, and defendant then led the officer to several different spots where he said the gun was located. However, they could not find the gun.

Defendant was taken to the police station where Detective Gary Giovannoni read him his Miranda rights. At that time, he declined to make a statement. Several hours later, defendant wanted to talk to Giovannoni. Defendant told Giovannoni that he wanted to show him where the gun was. Giovannoni advised him that his Miranda rights had been given, but defendant insisted on telling him where the gun was. Defendant then led Giovannoni to the location of the gun. An expert from the police department stated that it was his opinion that this gun fired the bullets which were found in the area where Bill was shot.

At the suppression hearing, defendant argued that the search and seizure of his wallet was unlawful and the confession was the unlawful fruit of that search. Specifically, he argued that a frisk pursuant to Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, is permissible only when the officer suspects the detainee to be carrying weapons, and the seizure of the wallet cannot be justified on this ground.

The trial court denied the motion, ruling that the seizure of the wallet to ascertain defendant's identity was reasonable under federal constitutional law.

On appeal, we review the evidence in a light favorable to the trial court's ruling on the suppression motion. We uphold those express or implicit findings of fact by the trial court which are supported by substantial evidence. However, we must independently determine whether the facts support the court's legal conclusions. (People v. Leyba (1981) 29 Cal.3d 591, 597-598, 174 Cal.Rptr. 867, 629 P.2d 961.) The exclusion of evidence is not mandated unless the seizure was in violation of the federal exclusionary rule under the Fourth Amendment to the United States Constitution. (In re Lance W. (1985) 37 Cal.3d 873, 896, 210 Cal.Rptr. 631, 694 P.2d 744.)

I

We conclude that the seizure of defendant's wallet for purposes of identification was within the scope of the investigative detention. In Terry v. Ohio, supra, the Supreme Court recognized the authority of a police officer to conduct a limited investigative detention of persons he reasonably suspects are involved in criminal activity and to subject that person to a patdown search for weapons where the officer has reason to fear for his safety. (392 U.S. at p. 30, 88 S.Ct. at p. 1884.) The issue before the Terry court was a narrow one and the justices expressly declined to comment about other actions an officer could take in furtherance of a lawful investigative detention. (At p. 16, 88 S.Ct. at p. 1877.) Contrary to defendant's contention, the Terry court did not proscribe all searches of a suspect temporarily detained. That determination must be made under the general Fourth Amendment standard of reasonableness and depends " 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' [Citation.]" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331; Terry v. Ohio, supra, 392 U.S. at pp. 20-21, 88 S.Ct. at pp. 1879-1880.)

We see no constitutional proscription against asking a Terry suspect to identify himself. Inquiries of the suspect's identity, address and his reason for being in the area are usually the first questions to be asked and may immediately dispel the officer's suspicions. Indeed, in Terry, the initial inquiry by the officer of the suspects was to ask their names. (Terry v. Ohio, supra, 392 U.S. at pp. 6-7, 88 S.Ct. at p. 1872; see also Peters v. New York, decided with Sibron v. New York (1968) 392 U.S. 40, 49, 88 S.Ct. 1889, 1895, 20 L.Ed.2d 917.) Without question, an officer conducting a lawful Terry stop must have the right to make this limited inquiry, otherwise the officer's right to conduct an investigative detention would be mere fiction. Defendant does not contend otherwise.

As part of this inquiry, the police officer may require the suspect to produce proof of identification, if he has it. The suspect has no constitutional right to keep his identity a secret under the circumstances existing here. If he refuses to identify himself to the officer, this fact may by itself be considered suspect and together with surrounding events may create probable cause to arrest. Likewise, the Terry suspect may not lie to the officer with impunity about his identity if there is a quick and minimally intrusive method of resolving the doubt. It is commonplace in our society for traffic officers to require motorists to remove their driver's license from their wallets when stopped by the officer. To require defendant in this case to display his driver's license or other proof of identification is a minor intrusion which is strictly limited to the sole justification of the detention. (See Terry v. Ohio, supra, 392 U.S. at p. 29, 88 S.Ct. at p. 1884; People v. Long (1987) 189 Cal.App.3d 77, 88, 234 Cal.Rptr. 271.)

Applying those standards to the instant case, we find that Officer Geaslin acted reasonably in requesting defendant to produce identification. Defendant replied that he did not have any. Having discovered defendant's wallet during a lawful patdown search for weapons, the officer was justified in taking it from defendant's pocket to identify him. The seizure of defendant's wallet under these circumstances was reasonably related to the purpose and scope of the investigative detention. The officer was not conducting a general "fishing expedition" for whatever evidence he could find, but sought merely to learn defendant's identity. As such, the papers observed by the officers while searching for identification were lawfully seized and defendant's spontaneous confession was not the fruit of any illegal search.

Neither Kolender v. Lawson (1983) 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903, nor Brown v. Texas (1979) 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357, cited by defendant, prohibits the search that occurred here. In Brown, the officer stopped defendant in a " 'high problem drug area.' " Without suspecting him of any specific criminal misconduct or having any reason to believe he was armed, the officer frisked him, but found nothing. Defendant refused to identify himself and he was arrested for violating a state statute which makes it a crime for a person to refuse to give his name and address to an officer " 'who has lawfully stopped and requested the information.' " (Brown v. Texas, supra, at p. 49, 99 S.Ct. at p. 2639.) The court reversed the conviction, finding the initial detention was unlawful since the officers had no specific basis for believing defendant was involved in criminal activity. (At pp. 52-53, 99 S.Ct. at p. 2641.)

In Kolender, the Supreme Court struck down a California statute as unconstitutionally vague. That statute (Pen.Code, § 647, subd. (e)) required a Terry suspect to produce ...