People v. McDonald

• Decision Date: 08 March 2006
• Docket Number: No. A108690.,A108690.
• Parties: The PEOPLE, Plaintiff and Respondent, v. David McDONALD, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

40 Cal.Rptr.3d 422

137 Cal.App.4th 521

The PEOPLE, Plaintiff and Respondent, v. David McDONALD, Defendant and Appellant.

No. A108690.

Court of Appeal, First District, Division 2.

March 8, 2006.

Review Denied June 21, 2006.

First District Appellate Project, Matthew Zwerling, Executive Director, Alan Siraco, Staff Attorney, Attorneys for Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Asst. Atty. Gen., Gerald A. Engler, Sr. Asst. Atty. Gen., Amy Haddix, Deputy Attorney General, Ann P. Wathen, Deputy Attorney General, Attorneys for Respondent.

KLINE, P.J.

This case presents the question whether it is a crime under California state law to urinate in public.

David McDonald challenges the denial of his motion to suppress evidence under Penal Code section 1538.5.¹ The evidence was seized after McDonald was detained for urinating in a public place. McDonald claims the detention and search incident thereto were unlawful because the Penal Code does not criminalize his act. As the officer who detained McDonald could lawfully do so only on the basis of a reasonable articulable suspicion McDonald was engaged in, or about to engage in, criminal activity, we are compelled to decide what appears to be a question of first impression—whether the California Legislature has criminalized public urination. We answer the question in the affirmative and shall therefore uphold the denial of McDonald's motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

Oakland Police Officer Francisco Rojas observed McDonald urinating in the parking lot of a restaurant in the 3000 block of San Pablo Avenue in Berkeley on Sunday, January 26, 2003, at 11:23 a.m. At the time, the restaurant was closed, and the parking lot was empty, save for a vehicle that appeared to belong to defendant's acquaintance. Officer Rojas, who was driving on the far side of San Pablo Avenue, could tell that McDonald was urinating, and Rojas saw McDonald zipping up his pants as the officer approached. Officer Rojas intended to cite McDonald for urinating in the parking lot, and asked him for identification. McDonald said he did not have an I.D. but provided his name, date of birth, and address. The officer placed McDonald under arrest while he verified this information. When he searched McDonald incident to the arrest, Officer Rojas found six "off-white rocks" in McDonald's pocket. After testing, one of the rocks was found to contain cocaine base, and the parties stipulated to this fact.

On March 3, 2004, McDonald filed a motion to suppress pursuant to section 1538.5, contending that he had been unlawfully detained because Officer Rojas lacked reasonable suspicion to believe McDonald was violating the law. The trial court heard the motion at a joint preliminary and suppression hearing on March 25, 2004. Officer Rojas stated that when he saw McDonald urinating in the parking lot, he intended to cite the defendant. After reviewing the police report of the incident, Rojas noted that it reflected his citation of McDonald for "littering" in violation of section 374.4, subdivision (b). The officer admitted that might not have been the correct section of the Penal Code and did not recall "why [he] wrote that section" in his report.² When asked by defense counsel whether he was aware of a Penal Code section prohibiting public urination, Officer Rojas stated he did not "recall the [Oakland Municipal Code] section which would be for the City of Oakland, and we were in the [C]ity of Berkeley. That's why I used our [Oakland] code. That's the only reason I tried to look for another section. I thought of [Penal Code section] 314, indecent exposure, but that wasn't quite what I wanted."

The prosecutor argued that Officer Rojas had reasonable suspicion to detain and cite McDonald for littering in violation of sections 374 and 374.4, subdivisions (a) and (c). Accordingly, the prosecutor contended, Officer Rojas had the right to arrest McDonald and search him incident to the arrest because McDonald did not provide adequate identification. Defense counsel maintained that urine is not included in the definition of either "litter" or "waste matter," and consequently McDonald's act of public urination was not prohibited by section 374.4.

The court agreed with the prosecution. In his ruling, the judge defined the issue as "whether or not there is some law that will allow the arrest for a citation for urinating in public." The court concluded that, reading the definitions of "littering" and "waste matter" in sections 374 and 374.4 together, "urine would come within that description, and, therefore, the officer would have had the right to cite him for the littering section for the urination in public.... [¶] Having authority under my interpretation of these two statutes, 374.4 and 374 to cite Mr. McDonald for urinating in public under a littering statute, the officer then had the authority to arrest him for no I.D. because they certainly have to know who he is. [McDonald] could not provide I.D., and therefore under ... [section] 853.5 et seq. and [section] 40302 of the Vehicle Code, the officer could, in fact, arrest Mr. McDonald, and having arrested him they would have the right to search him incident to arrest, and that's when the narcotics were found. So the Court's ruling is that the motion to suppress is denied."

On April 7, 2004, the Alameda County District Attorney filed an information charging McDonald with possession of a controlled substance (cocaine base) in violation of Health and Safety Code section 11350, subdivision (a). On July 26, 2004, defense counsel filed a motion pursuant to section 995 to set aside the information on the ground that the evidence supporting the charge had been obtained in violation of McDonald's Fourth Amendment rights. The prosecution opposed the motion, reasserting its claim that McDonald was lawfully detained for littering under sections 374 and 374.4. The prosecution also contended that the officer properly detained McDonald for committing a public nuisance in violation of sections 370 and 372. In addition, the prosecution asserted, McDonald violated section 375, subdivision (a), which, generally speaking, prohibits the release of injurious or nauseous substances in places of public assembly. The prosecution maintained that Officer Rojas's objective belief that McDonald had violated the law was sufficient to justify detaining him even if the officer was unsure of the precise statute that had been violated.

The court denied McDonald's section 995 motion. After reviewing the statutory provisions upon which the People relied, the court acknowledged some difficulty in discerning precisely which provision of the Penal Code, if any, prohibited public urination. In the end, the court focused on the definitions of littering in sections 374, subdivision (a), and 374.4, subdivision (c), as well as the definition of "waste matter" in section 374, subdivision (b), explaining that "those are the code sections I'm looking at for the definition of what it is, that waste matter includes any nauseous or offensive matter of any kind." The court alluded to conditions at a local underpass, stating that "if urine isn't nauseating and offensive in those particular places, I don't know what would be."

The court concluded: "So, looking at this—and I'm looking at a different section, 374.4, because I don't know that that applies—but 375 talks about the deposit of any liquid; 375(a), which is nauseous, sickening, irritating or offensive to any of the senses, I think those statutes, that group of statutes all read together—and it may not be 374.4 exactly—but it certainly seems to me that those group of statutes, all carrying close enough together, certainly puts one on notice about what the issues are. It was fair to look at it as a whole. [¶] And I think the State of California does penalize urination in certain circumstances. And I know that the last time around, in the motion to suppress, I recall we had another analogy, I think it was mine, too: Running out on Skyline Trail someplace, miles from anywhere, that's in a public place, but it's not in a place such as it's going to be overly irritating, sickening or offensive to—nauseous or offensive to any of the senses. [¶] So, I think that there is some common sense exceptions to the rule. Where this occurred, I don't find that exception to be true. [¶] So, if you are correct, and this Court is limited to the strict language of 374.4, a lot of debate about whether that covers it or not. I know police departments have used it. And, on the other hand, if the Court can take a broader interpretation and look to see objectively whether the officer had probable cause, in that same family of sections, I think he did. [¶] So, based on that, I'm going to deny the motion."

On October 6, 2004, the parties agreed to submit the case to the court based upon the evidence presented at the preliminary hearing, and the court found McDonald guilty of the charged offense. On November 18, 2004, the court placed McDonald on formal probation for three years, a disposition it later modified to reflect McDonald's referral to a drug treatment program. McDonald filed a timely notice of appeal on December 3, 2004.

DISCUSSION

It is undisputed that Office Rojas detained McDonald because he saw him urinating in public. McDonald argues that his act cannot have provided Officer Rojas with reasonable articulable suspicion he was engaged in criminal activity because, under these circumstances, public urination is simply not a crime under California law. The parties agree, as do we, that the propriety of the search hinges upon whether public urination is a crime under the law of this state.

The People contend that California statutes prohibiting dumping, littering, or the release of injurious or nauseous substances in places of public assembly can be construed, either together or separately, to prohibit public urination. (Se...