People v. Superior Court

Citation98 Cal.Rptr. 161,20 Cal.App.3d 1085
CourtCalifornia Court of Appeals
Decision Date09 November 1971
PartiesPEOPLE of the State of California, Petitioner, v. SANTA CLARA COUNTY SUPERIOR COURT, Respondent, Richard Dunbar ACOSTA, Real Party in Interest. Civ. 30142.

Evelle J. Younger, Atty. Gen. of California, Robert R. Granucci, Michael Buzzell, Deputy Attys. Gen., San Francisco, for petitioner.

John F. Marshall, Los Altos, for real party in interest.

ELKINGTON, Justice.

We issued an alternative writ of mandate to inquire into the Fourth Amendment reasonableness of police conduct which led to the discovery of restricted dangerous drugs, and a consequent charge against Richard Acosta of transportation of such drugs. (Health & Saf. Code, § 11912.) The superior court in Penal Code section 1538.5 proceedings had suppressed the subject drugs as evidence.

While his car was stopped at a traffic light at 1:45 a.m., a police officer observed the front seat passenger of a following vehicle pick up what appeared to be a beer can, drink from it, and then put the can out of view. A few moments later the police car's red light was activated, causing the other automobile to stop. The purpose was to see if there was an open container, or drinking, of an alcoholic beverage in violation of Vehicle Code section 23121 or section 23122. 1 The driver of each vehicle left his car. Asked by the police officer what his passenger was drinking the driver said that it was an 'orange drink.' The officer testified: 'He said that he would like to show me. He walked back to the vehicle, opened the left front door and said, 'Officer, come here, look for yourself.' At that point I did approach the left front door that was open. I looked inside and observed the person in the right front seat, which was Padgett, holding a Fanta brand name orange can in his left hand; and also on the seat next to his left leg was what appeared to be a six-inch .38 revolver.' 2

Obviously considering the probability that the gun was loaded the officer 'backed up, and pulled (his) service revolver (and) advised (his) partner, Officer Lansdowne, that there was a gun in the car. (They) ordered the occupants to get out.' An examination of the weapon disclosed four live rounds in its cylinder. The car's occupants, three in number including defendant Richard Acosta who was seated on the rear seat, were arrested. On the rear seat the officers observed another loaded revolver. A search disclosed a loaded sawed-off shotgun under the rear seat's left arm rest and 49 white scored tablets. From the officer's training and experience he assumed the tablets to be, as they were in fact, amphetamine, a restricted dangerous drug. These tablets were the subject of the action below against Acosta. At the Penal Code section 1538.5 hearing below the superior court ruled that they were the product of a search and seizure that was void under the Fourth Amendment.

The issue before the lower court was whether the police had a right to stop the car and question the front seat passenger, or at least obtain a closer look at the container that had been in his hands. The court found constitutional fault in the detention, concluding that a taking possession of the guns and contraband drugs the police had seized forbidden 'fruit of the poisonous tree.'

In the superior court, and here, Acosta has relied heavily on certain language of Irwin v. Superior Court, 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 486, 462 P.2d 12, 14--'Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. * * *' 3 (Emphasis added.)

We note initially that four cases are cited by Irwin as support for this proposition: People v. Moore, 69 Cal.2d 674, 72 Cal.Rptr. 800, 446 P.2d 800; People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Escollias, 264 Cal.App.2d 16, 70 Cal.Rptr. 65; and People v. Hunt, 250 Cal.App.2d 311, 58 Cal.Rptr. 385. From our examination of this authority we find no such support.

Acosta's argument seems to be that in his case, from the officer's observation and knowledge, it was just as likely that he was drinking from a soft drink container, as from a beer can. It follows, he argues, that under Irwin's announced rule the police were prohibited from making any further inquiry.

If the statement of Irwin is to be literally construed, Acosta's argument must be accepted. Its narrow language can only mean that to justify Any police detention the facts apparent to the officer, weighed against the probability of innocence, must preponderantly suggest criminal activity of the suspect. But such a construction would bring a novel concept into otherwise settled rules relating to permissible police detention. It would equate the right to so detain with reasonable or probable cause for an arrest--for if the apparent facts must preponderantly tend to establish criminal activity--then certainly they 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. Terry, 2 Cal.3d 362, 393, 85 Cal.Rptr. 409, 428, 466 P.2d 961, 980.) Indeed, the quantum of evidence required for police detention would also sustain a verdict of guilt, for a preponderance of evidence of criminal activity by an accused must be deemed 'substantial evidence' on appellate review. (See People v. Mosher, 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659.)

So construed, the language of Irwin is in deep conflict with settled authority, both state and national.

Perhaps the best known illustration is the leading case of Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 894. In that case a police officer without pretense of probable cause for an arrest reasonably believed 'that the (three) defendants were conducting themselves suspiciously (in the vicinity of a store), and some interrogation should be made of their action. * * *' The officer decided to detain them for questioning. In doing so he 'grabbed' one of the men, 'spun him around,' and made a productive weapons search, after which the men were arrested. From an examination of the facts of that case, in any reasonable view it must be concluded that the conduct of the detained men was Not more consistent with criminal, than with innocent, activity.

Recognizing the 'governmental interests'--underlying the 'recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating Possibly criminal behavior even though there is no probable cause to make an arrest'--the court found the officer to be exercising a 'legitimate investigative function' in his decision to detain and question Terry and his companions. (P. 22, 88 S.Ct p. 1880; emphasis added.) The court then held (p. 30, 88 S.Ct. p. 1884): '(W)here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity May be afoot * * *' he is to be permitted reasonably to detain and question the suspect. (Emphasis added.)

It will be noted that certain words taken from Terry have been emphasized by us. That court was careful to permit reasonable detention and investigation in the case of 'possibly criminal behavior' and where the officer reasonably concludes that 'criminal activity May be afoot.' Nowhere does the court suggest that such detention is allowed only where the probability of criminal behavior outweighs the probability of innocence.

In People v. Mickelson, 59 Cal.2d 448, 452, 30 Cal.Rptr. 18, 21, 380 P.2d 658, 661, California's leading case on the subject, a robbery by 'a fairly tall white man of large build with dark hair who was wearing a red sweater' was reported to police. About 20 minutes later an officer saw an automobile about six blocks from and traveling toward the robbery scene. One of its occupants appeared to be a 'large white man with dark hair wearing a red sweater or jacket.' (P. 453, 30 Cal.Rptr. p. 21, 380 P.2d p. 661.) Although probable cause for arrest was clearly nonexistent, since obviously there 'could have been more than one tall white man with dark hair wearing a red sweater abroad at night in such a metropolitan area' the court held, 'It was not unreasonable for the officer to stop (the) car for investigation * * *.' (P. 454, 30 Cal.Rptr. p. 22, 380 P.2d p. 662.) Here the chances that the 'tall white man' was engaged in criminal activity were slight, as compared with the probability of innocence, yet a reasonable police detention was held proper.

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