People v. Superior Court

• Decision Date: 30 September 1971
• Citation: 20 Cal.App.3d 384,97 Cal.Rptr. 646
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. SUPERIOR COURT OF TULARE COUNTY, Respondent; Richard Allan MARTIN et al., Real Parties in Interest. The PEOPLE, Plaintiff and Appellant, v. Richard Allan MARTIN et al., Defendants and Appellants. Civ. 1549, Crim. 1134.

Page 646

97 Cal.Rptr. 646

20 Cal.App.3d 384

The PEOPLE, Petitioner, v. SUPERIOR COURT OF TULARE COUNTY, Respondent;

Richard Allan MARTIN et al., Real Parties in Interest.

The PEOPLE, Plaintiff and Appellant, v. Richard Allan MARTIN et al., Defendants and Appellants.

Civ. 1549, Crim. 1134.

Court of Appeal, Fifth District, California.

Sept. 30, 1971.

[20 Cal.App.3d 386] Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Sacramento, Daniel J. Kremer and Loren E. McMaster, Deputy Attys. Gen., for appellant and petitioner.

Ashman, Beverly & Hannon, and Michael Hannon, Hollywood, for respondents.

No appearance for respondent Superior Court.

OPINION

GARGANO, Associate Justice.

Defendants were charged with possession of marijuana in violation of section 11530 of the Health and Safety Code. They moved to suppress the evidence pursuant to Penal Code section 1538.5 and to dismiss the information pursuant to section 995 of the Penal Code; both motions were granted. The People appeal from the order of dismissal and seek a writ of mandate to vacate the order of suppression. Since the court granted both motions because it concluded that the incriminating evidence against defendants was the product of an unlawful search and seizure, we have consolidated the appeal with the mandamus proceeding. (People v. Superior Court, 276 Cal.App.2d 581, 81 Cal.Rptr. 42.)

On February 20, 1971, between 4 and 4:30 a.m., a black hearse, occupied by four young men, entered Cecil and Jim's Mobil Station at Pixley, California. The driver ordered $5 worth of gasoline, and to pay for the purchase someone in the car handed the attendant, Charles Banes, a credit card issued in the name of one 'Annette Ross.' Banes did not see a female occupant in the vehicle, and because he was under instructions to 'check out' all credit cards used for purchases made after 10 p.m., he called a special number provided for that purpose; Banes was told to 'pick up' the card. The attendant informed the driver that he was going to keep the card and was paid in cash for the purchase. The hearse left the station, and Banes called Deputy Sheriff Barker and told him what had happened. He also gave the deputy the hearse's license number and the direction in which it was going.

Deputy Barker and his partner, Deputy Beavers, were riding in a police car when they observed the hearse traveling north on Highway 99 at about 35 or 40 miles an hour. Barker was driving, and he followed the suspect vehicle for about five or six miles before turning on his red light to effectuate a stop; he testified that he was waiting for a lighted area in which to stop the vehicle. As the officer turned on the red light and the high beams of the patrol car's headlights, he saw the occupants of the hearse passing objects about and throwing them out of the window. The hearse came to a stop, and Barker approached on the driver's side while his partner covered the passenger side. Barker told the defendants to get out of the hearse and subjected them to a pat down search. Afterward the officers ordered the four young men to sit in the patrol car while they walked back along the highway to search for the objects which had been thrown out of the vehicle. Barker found eight rolled up cigarettes containing what appeared to be marijuana strewn along the highway; three more marijuana cigarettes were found in the hearse.

The officers had probable cause to arrest the defendants and to search the vehicle if it can be assumed that the car was properly stopped. (People v. Nichols, 1 Cal.App.3d 173, 81 Cal.Rptr. 481; Vaillancourt v. Superior Court, 273 Cal.App.2d 791, 78 Cal.Rptr. 615; People v. Barcenas, 251 Cal.App.2d 405, 59 Cal.Rptr. 419.) Barker testified that as he turned on the red light and the high beams of the patrol car's headlights he saw items being passed about inside the hearse and some eight or fifteen of the objects being thrown out of a window of the suspect vehicle; eight marijuana cigarettes were found strewn along the highway. The officer also testified that he smelled burnt or burning marijuana emanating from inside the hearse; Barker had been employed in the Los Angeles County Narcotic Division, and he said he had participated in numerous marijuana arrests and had smelled burning marijuana about 200 times.

The crucial question is whether Deputy Barker had sufficient cause to stop the hearse in the first instance. If the officer did not have sufficient cause to stop the vehicle, the events which took place after the stop may not be used to justify the search and seizure. (Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Bilderbach, 62 Cal.2d 757, 766, 44 Cal.Rptr. 313, 401 P.2d 921.) ¹

The provocation required to permit a police officer to temporarily detain a person for questioning is not the same as that required for a valid arrest or a lawful search. (People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658.) In this state we adhere 'to the proposition that a police officer may question a person outdoors at night when the circumstances are such as would indicate to a reasonable man in like position that such a course is necessary to the discharge of his duties.' (People v. Ellsworth, 190 Cal.App.2d 844, 846, 12 Cal.Rptr. 433, 435; Irwin v. Superior Court, 1 Cal.3d 423, 82 Cal.Rptr. 484, 462 P.2d 12.) As Mr. Justice Traynor explained in People v. Mickelson, supra, 59 Cal.2d at page 452, 30 Cal.Rptr. at page 20, 380 P.2d at page 660:

'We do not believe that our rule permitting temporary detention for questioning conflicts with the Fourth Amendment. It strikes a balance between a person's interest in immunity from police interference and the community's interest in law enforcement. It wards off presure to equate reasonable cause to investigate with reasonable cause to arrest, thus protecting the innocent from the risk of arrest when no more than reasonable investigation is justified.'

Nevertheless, the right of a police officer to stop a motorist for questioning is not without constitutional restriction. (People v. Horton, 14 Cal.App.3d 930, 92 Cal.Rptr. 666.) A mere hunch or subjective suspicion will not justify a temporary detention; there must be some suspicious or unusual circumstance to justify even this limited invasion of a citizen's privacy. (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. One 1960 Cadillac Coupe, etc., 62 Cal.2d 92, 41 Cal.Rptr. 290, 396 P.2d 706.) 'And unusual activity alone, unless there is some suggestion that it is related to criminality, is insufficient.' (Williams v. Superior Court, 274 Cal.App.2d 709, 711--712, 79 Cal.Rptr. 489, 491; People v. Henze, 253 Cal.App.2d 986, 61 Cal.Rptr. 545.) To justify even a temporary detention for questioning, there must be some rational suspicion that an activity out of the ordinary has taken place, some indication to connect the detained person with that activity, and some suggestion that the activity is related to crime. (Flores v. Superior Court, 17 Cal.App.3d 219, 94 Cal.Rptr. 496; People v. Jackson, 268 Cal.App.2d 306, 74 Cal.Rptr. 40.)

We conclude that Officer Barker had reasonable cause to stop the defendants' vehicle and to detain them for reasonable questioning. The...