People v. Rosenfeld

• Decision Date: 13 April 1971
• Docket Number: Cr. 18246
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Daniel Michael ROSENFELD, Defendant and Respondent.

Page 380

94 Cal.Rptr. 380

16 Cal.App.3d 619

The PEOPLE of the State of California, Plaintiff and Appellant, v. Daniel Michael ROSENFELD, Defendant and Respondent.

Cr. 18246.

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

April 13, 1971.

Hearing Denied June 9, 1971.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Head Appellate Division, Donald J. Kaplan, Deputy Dist. Atty., for plaintiff and appellant.

Richard S. Buckley, Public Defender, James L. McCormick, Mark Overland, Leighton A. Nugent, Deputy Public Defenders, for defendant and respondent.

FLEMING, Associate Justice.

People appeal an order suppressing evidence and dismissing the information against defendant. (Pen.Code, § 1238(a)(7).)

During the hearing on defendant's motion to suppress (Pen.Code, § 1538.5), Officer Joseph Toney of the Los Angeles police testified that he and his partner were patrolling an alley behind apartment buildings with open garages in an area of Hollywood where there had been 'quite a few burglaries from motor vehicles.' About 9 p.m. they saw defendant walk out from behind two buildings and look in the direction of the police vehicle. He then turned and walked back between the buildings. Toney's on-the-scene interpretation of this event was, according to his testimony:

'* * * It appeared to me as if the defendant was attempting to avoid any type of contact with us.' ¹

The officers called defendant to their vehicle. Officer Toney asked him what he was doing there, and defendant said that he was looking for a friend named Dave. When asked where his friend lived, defendant said he didn't know. A pat-down of defendant revealed no weapons or tools. Toney asked for identification, and defendant produced a California driver's license. At this point Toney's partner walked over between the buildings, and Toney directed defendant to stand to the rear of the police vehicle on the driver's side. During the hearing the trial judge asked of Toney why he had not, at this juncture, released defendant. Toney replied as follows:

'A It's a known area of burglaries from motor vehicles. It's an alleyway, and there is a lot of garages, open garages, so we felt that the defendant might have been trying to break into the cars, so we held him there for further investigation until we could check the area out and see if we could find his friend Dave.'

Toney also testified that although he did not have any specific crime in mind, he decided to run a 'want check' on defendant while his partner was checking the area and that, as he put his head and arm into the police vehicle to use the radio speaker, he saw defendant take his right hand out of his jacket pocket and throw a 'plastic substance' over the rear trunk of the police car. At this moment Toney's partner was absent, and he thought it best for his own safety to handcuff defendant and place him in the police vehicle. With a flashlight Toney then searched the ground and found a plastic bag containing marijuana.

Defendant was thereupon arrested and charged with possession of marijuana.

The initial detention of defendant was lawful. The officers were faced with the following facts: (1) it was 9 p.m. and therefore dark; (2) the location was an alleyway with many open garages which provided opportunity for the commission of car burglaries; (3) car burglaries had recently occurred with great frequency in the vicinity; (4) when defendant saw the police vehicle, he reversed his approach into the alley and headed for the area between buildings from which he had just emerged.

We are mindful, particularly in relation to the fourth factor, of our Supreme Court's recent admonition that the '* * * law requires more than a mere 'furtive gesture' to constitute probable cause to search or to arrest.' (People v. Superior Court and Kiefer, 3 Cal.3d 807, 818, 91 Cal.Rptr. 729, 735, 478 P.2d 449, 455.) No one of the four factors alone would have justified the initial detention. The mere act of turning one's back on a police officer, even though to the officer the action seems to be a 'nervous' one, is insufficient to justify detention. (People v. Moore, 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800.) We are, however, unprepared to say that the initial detention at bench was based on mere hunch. Notwithstanding defendant's claim that the hour of 9 p.m. is 'conventional,' it is night-time, and although 9 p.m. is a conventional hour it serves just as effectively to hide criminal activity as does 11 p.m. or 2 a.m. Darkness is a pertinent circumstance in determining the propriety of a temporary, non-consensual detention by the police. (People v. Cruppi, 265 Cal.App.2d 9, 12, 71 Cal.Rptr. 42; People v. Henze, 253 Cal.App.2d 986, 989, 61 Cal.Rptr. 545.) Darkness, together with furtive conduct (Williams v. Superior Court, 274 Cal.App.2d 709, 712, 79 Cal.Rptr. 489), the high potential for the particular crime suspected (People v. Manis, 268 Cal.App.2d 653, 660, 74 Cal.Rptr. 423), the open garages, and the known high rate of thefts from open garages, furnished sufficient reason to warrant temporary detention for investigation. While there is sometimes a delicate balance in the necessary process of accommodation between an individual's right to privacy and '* * * the urgent need of society in these troubled times * * * for prompt and effective police detection of crime' (People v. Woods, 6 Cal.App.3d 832, 835--836, 86 Cal.Rptr. 264, 266), the facts at bench justified the police in temporarily detaining defendant.

After the initial detention defendant fortified the objective suspicions of the police by stating he was in the neighborhood looking for Dave but did not know where Dave lived. Standing alone, such a remark would not necessarily be deemed evasive, but under the circumstances previously detailed it would be surprising if the officers accepted defendant's ingenuous statement as a full explanation for his appearance in, and retreat from, the dark alley they were patrolling. Toney's partner was properly and sensibly discharging his duties when he went between the buildings to see if he could find Dave, since in all probability Dave's presence would have cleared defendant of suspicion of wrongdoing.

This point is buttressed by reasonable inferences. The trial judge observed that in his view, Toney's 'want check' was in fact a method of '* * * killing time until his buddy (Toney's partner) came back and reported whether he had found any cars broken into, or anything that looked like someone might be breaking in, and the defendant might be a lookout. Something along those lines. I think the record check was just something to keep both people busy while the officer came back and reported, 'No, there's nothing going on there. " If we accept the trial court's evaluation of the testimony relating to this issue (People v. Superior Court and Kiefer, Supra, 3 Cal.3d at 828, 91 Cal.Rptr. 729, 478 P.2d 449), it is apparent that what the officers were attempting to do was carry out an on-the-scene investigation in a high crime rate area of the activities of a person who they suspected might be breaking into parked vehicles. It is a reasonable inference that the officers were attempting to Prevent the commission of a crime by a timely investigation of brief duration. (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; see generally, People v. Woods, Supra, 6 Cal.App.3d 832, 837, 86 Cal.Rptr. 264.) Under these circumstances we think the discovery in a deserted alleyway at night of a person declaredly searching for a mysterious stranger named Dave whose address he did not know warranted further on-the-scene investigation together with further temporary detention for a brief period.

We therefore reject the legal conclusion the trial court apparently reached on the basis of the facts before it. ² The duration of the further investigation was admittedly short, and the extent of the additional temporary detention was minimal. On the facts before us we believe the officers acted within their authority. Unlike People v. Lingo, 3 Cal.App.3d 661, 83 Cal.Rptr. 755, and Pendergraft v. Superior Court, 15 Cal.App.3d 237, 93 Cal.Rptr. 155, where a lawfully initiated detention was unlawfully extended, the officers at bench had not completed their initial on-the-scene investigation. Prudence dictated that at a minimum the police examine the nearby vehicles and buildings for signs of unlawful entry or attempted unlawful entry. Toney's partner was in the process of doing this when defendant irremediably incriminated himself by jettisoning his contraband.

Since the detention in its entirety was lawful, the seizure of the marijuana did not come about as the result of a search, and was itself lawful. (Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898.)

The order setting aside the information is reversed.

HERNDON, Associate Justice (concurring).

I concur in the opinion and offer only brief additional comment.

In Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688, the relevant facts are recited as follows:

'At about ten o'clock on the night of February 18, 1957, two Los Angeles police officers, dressed in plain clothes and riding in an unmarked car, observed a taxicab standing in a parking lot next to an apartment house at the corner of First and Flower Street in Los Angeles. The neighborhood had a reputation for 'narcotics activity.' The officers saw the petitioner look up and down the street, walk across the lot, and get into the cab. Neither officer had ever before seen the petitioner, and neither of them had any idea of his identity. Except for the reputation of the neighborhood, neither officer had received information of any kind to suggest that someone might be engaged in criminal activity at that time and place. They were not searching for a participant in any previous crime. They...