People v. McKelvy

• Decision Date: 07 March 1972
• Docket Number: Cr. 4887
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Chester B. McKELVY, Defendant and Appellant.

Page 661

100 Cal.Rptr. 661

23 Cal.App.3d 1027

PEOPLE of the State of California, Plaintiff and Respondent, v. Chester B. McKELVY, Defendant and Appellant.

Cr. 4887.

Court of Appeal, Fourth District, Division 2, California.

March 7, 1972.

Hearing Denied May 4, 1972.

[23 Cal.App.3d 1031] Charles E. Ward, Public Defender, San Bernardino County by Philip S. Barnett, Deputy Public Defender, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Mark L. Christiansen, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

TAMURA, Associate Justice.

Defendant was charged with possession of a restricted dangerous drug (Health & Saf. Code, § 11910). Following denial of a Penal Code, section 1538.5 motion to suppress, defendant pleaded guilty to the charge as a misdemeanor and was granted probation. ¹ His purported appeal from the 'judgment' will be treated as an appeal from the order granting probation.

The sole issue is the legality of the seizure of the contraband which formed the basis for defendant's conviction.

Officer Lingren of the San Bernardino Police Department was the only witness at the hearing on the motion to suppress. His testimony was in substance as follows:

In the early morning hours of April 11, 1970, Lingren, accompanied by three other officers, was on patrol duty in a marked police unit in the west side area of San Bernardino. As a result of a race riot, a curfew had been imposed which forbade loitering between 11:45 p.m. and 6 a.m. ²

About 3 a.m. Lingren saw defendant proceeding north along Muscott Street, walking across front lawns of residences. The officer considered this to be 'peculiar' because 'there (were) sidewalks through the area.' The officers put the spotlight on defendant, and as they did so, defendant glanced back and was seen to place 'a small dark-colored object' he was holding in his hand into his front pants pocket. The officers stopped the patrol car and Lingren, armed with a shotgun, approached defendant. At the same time the other three officers, each carrying either a shotgun or carbine, moved 'into position' to cover the police unit and each other. Lingren testified this was normal police procedure because of the possibility of 'Molotov cocktails.'

Lingren's initial purpose in stopping defendant was to find out why he was out on the street. When the officer asked defendant where he was going, defendant replied he was going to his home on Ramona Street. Lingren testified the answer was suspicious because 'going home' was the common answer he received from '95% Of the people we stopped and talked to.' Without further inquiry Lingren asked defendant to hand over the object he had placed in his pocket. Defendant complied and handed the officer a small brown bottle containing white and pink tablets. Defendant was thereupon placed under arrest. Lingren testified he arrested defendant for a curfew violation.

The People urge that the order denying the motion to suppress may be upheld on several theories: (1) Voluntary consent to seizure; (2) search incident to lawful arrest for a curfew violation; (3) search incident to a valid detention for investigation. It is our conclusion that seizure of the contraband cannot be justified on any of the proffered theories.

I

The order denying the motion to suppress cannot be sustained on the basis of an implied finding of voluntary consent.

Once it is established that a search or seizure was made without a warrant, the burden is on the prosecution to show proper justification. (People v. Marshall, 69 Cal.2d 51, 56, 69 Cal.Rptr. 585, 442 P.2d 665.) Where the government relies upon consent, it has the burden of presenting 'substantial evidence of consent to the search.' (Castaneda v. Superior Court, 59 Cal.2d 439, 444, 30 Cal.Rptr. 1, 4, 380 P.2d 641, 644.) The burden has been characterized as a 'heavy' one. (Parrish v. Civil Service Commission, 66 Cal.2d 260, 270, 57 Cal.Rptr. 623, 425 P.2d 223.) The government must show 'that the consent was, in fact, freely and voluntarily given' and the 'burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.' (Bumper v. North Carolina,391 U.S. 543, 548--549, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 802.) The People must show that consent was 'uncontaminated by any duress or coercion, actual or implied.' (Channel v. United States (9th Cir.) 285 F.2d 217, 219; Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649, 651; see People v. Cruz, 264 Cal.App.2d 437, 442, 70 Cal.Rptr. 249.)

"To protect his right to object to an unreasonable search or seizure a defendant need not forcibly resist an officer's assertion of authority to . . . search . . . his person (citations), but if he freely consents to . . . (a) search, or voluntarily produces evidence against himself, his constitutional rights are not violated and any search or taking of evidence pursuant to his consent is not unreasonable. (Citations.)" (Lane v. Superior Court, 271 Cal.App.2d 821, 825, 76 Cal.Rptr. 895, 898; Castaneda v. Superior Court, Supra, 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Shelton, 60 Cal.2d 740, 746, 36 Cal.Rptr. 433, 388 P.2d 665; People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852.) Whether in a particular case an apparent consent was voluntarily given or was in submission to an express or implied assertion of authority, is ordinarily a question of fact to be determined from all the circumstances. (Castaneda v. Superior Court, Supra, 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Shelton, Supra, 60 Cal.2d 740, 746, 36 Cal.Rptr. 433, 388 P.2d 665.) But where the undisputed facts clearly reveal that an apparent consent was not freely and voluntarily given but was in submission to an assertion of authority, a reviewing court is not bound by a finding of consent by the trial court. (Lane v. Superior Court, Supra, 271 Cal.App.2d 821, 825--826, 76 Cal.Rptr. 895; see Parrish v. Civil Service Commission, Supra, 66 Cal.2d 260, 270, 57 Cal.Rptr. 623, 425 P.2d 223.)

Applying the foregoing principles to the present case, the uncontroverted facts were that defendant was standing in a police spotlight, surrounded by four officers all armed with shotguns or carbines. In these circumstances no matter how politely the officer may have phrased his request for the object, it is apparent that defendant's compliance was in fact under compulsion of a direct command by the officer. (See People v. Hubbard, 9 Cal.App.3d 827, 831, 88 Cal.Rptr. 411; Stern v. Superior Court, 18 Cal.App.3d 26, 30, 95 Cal.Rptr. 541 (consent at gunpoint following arrest cannot validate search).) The evidence established 'no more than acquiescence to a claim of lawful authority.' Any implied finding that defendant handed over the object voluntarily is not supported by substantial evidence.

II

Nor can the seizure be justified as a search incident to a lawful arrest for a curfew violation.

Because of tensions engendered by race riots, the mayor of the City of San Bernardino, pursuant to a Civil Disaster Ordinance, promulgated curfew regulations which included a prohibition against loitering 'in or about any public street or other public place' between prescribed hours. ³ Officer Lingren testified he arrested defendant for a curfew violation because he was 'evasive more or less in his answers' and that 'he had actually no purpose in the area.' While the riot situation and the lateness of the hour may have been reasonable justification for stopping and temporarily detaining defendant for the purpose of requesting his identity and his reason for being on the street, the evidence does not support a finding of probable cause to arrest for loitering in violation of the curfew regulations.

The validity of the curfew regulation imposed in the instant case has not been questioned nor need we reach that issue in order to resolve the issues posed by the present appeal. But it is proper to note that because such regulations drastically curb an individual's freedom, only a clear showing of emergent necessity can justify its imposition. (See Judicial Control of the Riot Curfew, 77 Yale L.J. 1560.) Freedom of movement is a fundamental right and its exercise may be restricted only where necessary to further the most compelling state interest. (Carroll v. United States, 267 U.S. 132, 153--154, 45 S.Ct. 280, 69 L.Ed. 543, 551--552; People v. Superior Court (Kiefer), 3 Cal.3d 807, 815, 91 Cal.Rptr. 729, 478 P.2d 449; People v. Horton, 14 Cal.App.3d 930, 933--934, 92 Cal.Rptr. 666; Wirin v. Horrall, 85 Cal.App.2d 497, 501, 193 P.2d 470.) And the regulations must be narrowly circumscribed in order to withstand a constitutional challenge for overbreadth and vagueness. (In re Hoffman, 67 Cal.2d 845, 852--853, 64 Cal.Rptr. 97, 434 P.2d 353; Ames v. City of Hermosa Beach, 16 Cal.App.3d 146, 151--152, 93 Cal.Rptr. 786; People v. Horton, Supra; Mandel v. Municipal Court, 276 Cal.App.3d 649, 657--663, 81 Cal.Rptr. 173.)

Mere presence on the street during the prohibited hours cannot constitute 'loitering' within the meaning of penal statutes or police regulations. (Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110.) As a proscribed criminal conduct, the word 'loiter' has been held to connote 'lingering in the designated places for the purpose of committing a crime as opportunity may be discovered.' (In re Cregler, 56 Cal.2d 308, 312, 14 Cal.Rptr. 289, 291, 363 P.2d 305, 307; People v. Caylor, 6 Cal.App.3d 51, 56, 85 Cal.Rptr. 497; see also In re Hoffman, Supra, 67 Cal.2d 845, 853, 64 Cal.Rptr. 97, 434 P.2d 353.) In sustaining an ordinance making it unlawful for a person to roam or be upon a public street during certain hours 'without having and disclosing a lawful purpose,' the Oregon Supreme Court held that a person 'must be deemed innocent unless his voluntary conduct overcomes the apparent and presumed innocence of his movements...