People v. Moreno

• Decision Date: 10 March 1977
• Docket Number: Cr. 16289
• Citation: 67 Cal.App.3d 962,134 Cal.Rptr. 322
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Javier MORENO, Defendant and Appellant.

Page 322

134 Cal.Rptr. 322

67 Cal.App.3d 962

PEOPLE of the State of California, Plaintiff and Respondent, v. Javier MORENO, Defendant and Appellant.

Cr. 16289.

Court of Appeal, First District, Division 1, California.

March. 10, 1977.

James C. Hooley, Public Defender, Anne M. Harris, Asst. Public Defender, Oakland, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Sanford Svetcov, Deputy Atty. Gen., San Francisco, D. Lowell Jensen, Dist. Atty., T. W. Condit, William A. McKinstry, Deputy Dist. Attys., Oakland, for plaintiff and respondent.

ELKINGTON, Associate Justice.

A police officer, during the course of an investigative detention of defendant Moreno and his automobile, observed in plain sight a 'billy,' the possession of which is proscribed by Penal Code section 12020. The weapon was seized and Moreno was arrested. In the municipal court, where he was charged as a misdemeanant, he unsuccessfully moved under Penal Code section 1538.5 to suppress the use of the weapon as evidence. He, as permitted by Penal Code section 1538.5, subdivision (j), appealed from the order denying his motion to the appellate department of the superior court.

The issue raised on the appeal was the constitutional propriety of the police officer's detention of Moreno. The lower reviewing court thereafter, under rule 63, California Rules of Court, made the following certification:

'The Appellate Department of the Superior Court of the State of California for the County of Alameda, hereby grants the People's application and certifies that transfer of this case to the Court of Appeal of the State of California for the First Appellate District is necessary to secure uniformity of decision regarding the continuing vitality of the standard found in Irwin v. Superior Court, 1 Cal.3d 423 at 427, 82 Cal.Rptr. 484, 462 P.2d 12: 'Where the events are as consistent with innocent activity as with criminal activity, a detention based on these events is unlawful.' Cf. People v. Superior Court (Acosta), 20 Cal.App.3d 1085, 1091, 98 Cal.Rptr. 161 (1971); People v. Higbee, 37 Cal.App.3d 944, 950, 112 Cal.Rptr. 690 (1974); People v. Rios, 51 Cal.App.3d 1008, 1011, 124 Cal.Rptr. 737 (1975) and People v. Larkin, 52 Cal.App.3d 346, 349, 125 Cal.Rptr. 137 (1975), with People v. Lathan, 38 Cal.App.3d 911, 914, 113 Cal.Rptr. 648 (1974) and People v. Wheeler, 43 Cal.App.3d 898, 902--903, 118 Cal.Rptr. 205 (1974).'

We ordered the appeal transferred to this court.

Irwin v. Superior Court (1969) 1 Cal.3d 423, 82 Cal.Rptr. 484, 462 P.2d 12, dealt with the constitutional limitations on the right of a police officer to temporarily detain a person for the purpose of questioning, or other criminal investigation. The court applied the widely known applicable rule, as follows:

'(A) detention based on a 'mere hunch' is unlawful . . . even though the officer may have acted in good faith . . .. There must be a 'rational suspicion by the peace officer that some activity out of the ordinary is or has taken place . . . some indication to connect the person under suspicion with the unusual activity . . . (and) some suggestion that the activity is related to crime.'' 1 Cal.3d, p. 427, 82 Cal.Rptr., p. 486, 462 P.2d, p. 14. ¹

But the court then used the language here presented for our consideration: 'Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful.' 1 Cal.3d, p. 427, 82 Cal.Rptr., p. 486, 462 P.2d, p. 14. ²

At this point we briefly consider the constitutional requirements of Probable cause for the warrantless arrest of a person suspected of criminal activity. Such probable cause exists when the facts apparent to the officer "would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime." (People v. Harris, supra, 15 Cal.3d 384, 389, 540 P.2d 632, 635, 124 Cal.Rptr. 536, 539; People v. Terry (1970) 2 Cal.3d 362, 393, 85 Cal.Rptr. 409 (cert. den., 406 U.S. 912, 92 S.Ct. 1619, 32 L.Ed.2d 112); People v. Ingle (1960) 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577 (cert. den., 364 U.S. 841, 81 S.Ct. 79, 5 L.Ed.2d 65).) And probable cause for a warrantless arrest 'has also been defined as having more evidence for than against; . . .' (People v. Ingle, supra, p. 413, 2 Cal.Rptr., p. 17, 348 P.2d, p. 580; People v. Moore (1975) 51 Cal.App.3d 610, 616, 124 Cal.Rptr. 290 (hearing by S.Ct. den.; cert. den., 425 U.S. 977, 96 S.Ct. 2179, 48 L.Ed.2d 801); Wilson v. County of Los Angeles (1971) 21 Cal.App.3d 308, 316, 98 Cal.Rptr. 525; People v. Superior Court (Thomas) (1970) 9 Cal.App.3d 203, 208, 88 Cal.Rptr. 21.)

Analysis of Irwin v. Superior Court's two concepts reveals opposing principles. The first permits otherwise reasonable investigative detention, upon a Rational suspicion of criminal activity, while the second demands as a requisite for a police officer's detention that there be a Preponderant appearance of criminal activity.

It will be seen that the additional requirement of Irwin v. Superior Court authorizes temporary police investigative detention of a person only under circumstances that would create probable cause for the person's arrest. For by any test of law or logic, if the facts apparent to the policeman amount to a preponderant appearance of criminal activity, then surely probable cause for arrest must exist. Indeed, People v. Ingle's above-quoted definition of probable cause for an arrest, i.e., 'having more evidence for than against' 53 Cal.2d, p. 413, 2 Cal.Rptr., p. 17, 348 P.2d, p. 580 is a strikingly accurate paraphrasing of Irwin v. Superior Court's added investigative detention requirement of 'preponderant appearance of criminal activity.'

Yet it is a truism of our criminal law practice 'that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the street for questioning.' (People v. Mickelson, supra, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 20, 380 P.2d 658, 660.) And the justification 'which warrants an officer's detention of a person for investigative reasons is necessarily of a lesser standard than that required to effect an arrest.' (People v. Flores, supra, 12 Cal.3d 85, 91, 115 Cal.Rptr. 225, 228, 524, P.2d 353, 356; and to the same effect see Terry v. Ohio, supra, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Harris, supra, 15 Cal.3d 384, 389, 540 P.2d 632, 124 Cal.Rptr. 536; People v. Junious, supra, 30 Cal.App.3d 432, 436, 106 Cal.Rptr. 344; People v. Griffith (1971) 19 Cal.App.3d 948, 950, 97 Cal.Rptr. 367.)

We are of the opinion that Irwin v. Superior Court did not intend a drastic change in the law such as would deny a police officer's right to temporarily detain a person for investigation, unless he had information sufficient to authorize the person's arrest. Had such been the intent we may be sure that the court would in some manner have expressed its disapproval of what then, as it appears to us, was unanimous state and federal authority to the contrary.

Further, we opine that the 'preponderant appearance of criminal activity' criterion of Irwin v. Superior Court is a dictum. The court had expressly concluded that the police officer's detention of that case rested upon a 'mere hunch' without 'rational suspicion' and was thus, under the prevailing rule, unlawful. The case's newly announced 'preponderant appearance of criminal activity' test was not necessary to the decision. The state's high court has consistently advised lower tribunals that its 'Incidental statements of conclusions not necessary to the decision are not to be regarded as authority' (Simmons v. Superior Court (1959) 52 Cal.2d 373, 378, 341 P.2d 13, 17), and that the 'discussion or determination of a point not necessary to the disposition of a question that is decisive of the appeal is generally regarded as obiter dictum' (Stockton Theatres, Inc. v. Palermo (1956) 47 Cal.2d 469, 474, 304 P.2d 7, 9; see also Kastigar v. United States (1972) 406 U.S. 441, 454--455, 92 S.Ct. 1653, 32 L.Ed.2d 212; People v. Clark (1941) 18 Cal.2d 449, 461, 116 P.2d 56; County of San Diego v. Hammond (1936) 6 Cal.2d 709, 724, 59 P.2d 478; Hills v. Superior Court (1929) 207 Cal. 666, 670, 279 P. 805).

Moreover, we observe that the state's Supreme Court has several times recently restated the law applicable to investigative police detention. Without approval, or even mention, of Irwin v. Superior Court's added concept of 'preponderant appearance of criminal activity,' it has reiterated the long-accepted first rule of that case in this manner.

People v. Gale, supra, 9 Cal.3d 788, 797--798, 108 Cal.Rptr. 852, 859, 511 P.2d 1204, 1211. "While a detention of a citizen by a police officer based on a 'mere bunch' is unlawful, if there is a rational Suspicion that some activity out of the ordinary is taking place, and some Suggestion that the activity is related to crime, a detention is permissible."

People v. Flores, supra, 12 Cal.3d 85, 91, 115 Cal.Rptr. 225, 228, 524 P.2d 353, 356. 'Where there is a rational belief of criminal activity with which the suspect is connected, a detention for reasonable investigative procedures infringes no constitutional restraint.'

People v. Harris, supra, 15 Cal.3d 384, 388--389, 540 P.2d 632, 634, 124 Cal.Rptr. 536, 538. "A police officer may stop and question persons on public streets . . . when the circumstances indicate to a reasonable man in a like position that such a course of action is called for in the proper discharge of the officer's duties. . . . The good faith suspicion which warrants an officer's detention of a person for investigative reasons is necessarily of a lesser standard than that required to effect an arrest. . . . Where there is a rational belief of criminal activity with which the suspect is connected, a detention for reasonable investigative procedures...