People v. Wilkins

• Decision Date: 06 June 1986
• Citation: 231 Cal.Rptr. 1,186 Cal.App.3d 804
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Leon Eugene WILKINS, Defendant and Appellant. H000906.

Page 1

231 Cal.Rptr. 1

186 Cal.App.3d 804

The PEOPLE of the State of California, Plaintiff and Respondent, v. Leon Eugene WILKINS, Defendant and Appellant.

H000906.

Court of Appeal, Sixth District, California.

June 6, 1986.

Michael A. Kresser, Conflicts Admin. Program, Santa Clara, for plaintiff and respondent.

John K. Van de Kamp, Atty. Gen., Robert Granucci, Deputy Atty. Gen., San Francisco, for defendant and appellant.

BRAUER, Associate Justice.

Leon Eugene Wilkins appeals from a judgment of conviction entered upon a negotiated plea of guilty to a charge of unauthorized possession of PCP (Health and Saf.Code § 11377). His plea followed the denial of his motion to suppress evidence and he now challenges the trial court's adverse ruling. (Pen.Code § 1538.5(m).) He contends that he was unlawfully detained and, therefore, the subsequent search and seizure conducted pursuant to a probation search condition was illegal. We conclude his contention is meritorious.

Review of the record under the proper standard of review (People v. Leyba (1981) 29 Cal.3d 591, 596-598, 174 Cal.Rptr. 867, 629 P.2d 961) shows the following facts. San Jose police officer Geoffrey Sun was alone on routine patrol at approximately 10:18 p.m. on January 4, 1985. While driving a marked patrol vehicle through the parking lot of a convenience market, he noticed that two occupants in the front seat of a parked Pontiac station wagon " ... seemed to lower themselves to conceal themselves in a crouched down position ..." as he drove past. This sliding down motion is the only movement he saw inside the car. He was aware that the market's neighborhood was " ... noted for thefts of the stores and narcotics activities...."

He drove through the parking lot again with the intent to make contact with the passenger and the driver in the car " ... just to find out what they were doing in the particular area." He parked diagonally behind the station wagon so that he was " ... essentially blocking that exit of the station wagon."

The officer got out of the patrol vehicle and approached the driver's side of the station wagon. He " ... smelled a strong odor of burning incense" upon leaning down to the driver's door. He was aware that incense is sometimes used to conceal the odor of burning contraband.

When Officer Sun asked the individual in the driver's seat what he was doing in the area, he replied " ... just kicking back." Defendant Wilkins, who was seated on the passenger's side, gave a similar response. The officer then requested identification from both men, who complied. He ran a warrant check on each and learned, when a response came approximately one minute later, that Wilkins was subject to a probation search condition. He confirmed its continuing validity through radio communications. The search term permitted a search of Wilkin's residence, vehicle, and person.

Officer Sun proceeded to perform a full search of Wilkin's clothing. The first item discovered was a hand rolled cigarette in a matchbook in his right front coat pocket. The officer believed the substance contained in the cigarette was marijuana because of its green color. At the preliminary examination hearing, the party stipulated that the cigarette contained PCP.

The officer next uncovered a sealed zip lock baggie with a white powdery substance in Wilkin's right front pants pocket. At the time, he suspected it was a controlled substance, but it proved to be otherwise.

The officer searched the other man and then commenced a search of the car. He " ... discovered a clear cellophane type wrapper containing ... an off white colored rock like substance" on the right edge of the right front door panel. The officer seized the suspected contraband, which the parties stipulated at the preliminary examination was PCP. Lastly, the officer found a full container of Schillings parsley inside the unlocked glove compartment.

Wilkins and the other occupant were both arrested for possession of controlled substances. When advised of his Miranda rights at the pre-processing center, Wilkins agreed to speak with the officer. When asked about the contraband discovered in the front seat, Wilkins said he "stashed it" and "purchased it out of the City of San Jose."

Relying on People v. Rios (1975) 51 Cal.App.3d 1008, 124 Cal.Rptr. 737, the trial court concluded that the initial detention, blocking the exit of the station wagon, was lawful because Wilkins and his co-occupant slid down in their seats "as if to elude observation." The court then determined the subsequent detention was valid because "the officer almost immediately smelled incense burning and reasonably suspected that defendant and his companion were 'burning contraband'...."

Wilkins argues that the immobilization of the vehicle constituted an unlawful detention because it was not supported by reasonable suspicion of criminal activity and the evidence subsequently seized was its "tainted fruit." The People contend that either (1) the act of positioning the patrol car behind the parked vehicle in a manner preventing egress was not a detention or (2) if it was, it was based upon reasonable suspicion.

It is well established that certain temporary seizures short of arrest based upon probable cause are justifiable under the Fourth Amendment where the officer subjectively has a reasonable and articulable suspicion based upon objective facts that the person to be detained is involved in crime which has occurred, is occurring, or is about to occur. (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957; United States v. Place (1983) 462 U.S. 696, 702, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110.) "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16, 88 S.Ct. 1868, 1879, fn. 16, 20 L.Ed.2d 889.) "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." (Id., at p. 16, 88 S.Ct. at p. 1877.) A person has been "seized" within the meaning of the Fourth Amendment when, in view of all of the surrounding circumstances, a reasonable person would have believed that he was not free to leave. (United States v. Mendenhall (1980) 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497; see Wilson v. Superior Court (1983) 34 Cal.3d 777, 790, 195 Cal.Rptr. 671, 670 P.2d 325.)

Here, the occupants of the station wagon were "seized" when Officer Sun stopped his marked patrol vehicle behind the parked station wagon in such a way that the exit of the parked vehicle was prevented. Under these circumstances, a reasonable person would have believed that he was not free to leave. (Cf. People v. Bailey (1986) 176 Cal.App.3d 402, 222 Cal.Rptr. 235 (detention occurred where officer in unmarked police car pulled in behind a vehicle in a Sears parking lot and turned on emergency lights).)

The state bears the burden of justifying a detention, as with all warrantless intrusions. (People v. Bower (1979) 24 Cal.3d 638, 644, 156 Cal.Rptr. 856, 597 P.2d 115.) "In order to justify a detention 'the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation] to suspect the same criminal activity and same involvement by the person in question.' [Citations.]" (People v. Aldridge (1984) 35 Cal.3d 473, 478, 198 Cal.Rptr. 538, 674 P.2d 240.) "[A]n investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]" (In re Tony C., supra, 21 Cal.3d at p. 893, 148 Cal.Rptr. 366, 582 P.2d 957; cf. People v. Loewen (1983) 35 Cal.3d 117, 123, 196 Cal.Rptr. 846, 672 P.2d 436.)

In the instant case, the trial court relied exclusively upon People v. Rios, supra, a case predating landmark Supreme Court opinions. In People v. Rios, two officers on patrol in a high crime area in their marked patrol car observed the defendant and another man sitting in an automobile legally parked at a curb. The occupants ducked down out of sight when the patrol car flashed its headlights across the vehicle. When the officers centered their spotlight on the parked car, the two occupants returned to normal sitting positions. Suspecting a robbery or burglary might be impending, the officers stopped their vehicle and approached the parked car to question the occupants. The officer spoke with the men. (People v. Rios, supra, 51 Cal.App.3d at p. 1010, 124 Cal.Rptr. 737.) Looking into the car with the aid of a flashlight, the officer observed a portion of a handgun protruding from under the front seat. The weapon was seized and both men were arrested. (Id., at p. 1011, 124 Cal.Rptr. 737.)

The Rios court, in a cursory opinion which assumed a detention, held the "detention" was proper because the circumstances were " ... sufficient to cause a 'good faith suspicion' of criminal activity...." This case is of dubious validity in light of People v. Aldridge, supra, People v. Bower, supra, and In re Tony C., supra.

In People v. Aldridge, supra, a patrolling officer regularly conducted field interviews of persons in a particular liquor store parking lot because it was known for drug traffic and people who frequented the location were often armed. The officer personally had made two hundred...