Remers v. Superior Court

Decision Date16 June 1970
Docket NumberS.F. 22722
Citation2 Cal.3d 659,470 P.2d 11,87 Cal.Rptr. 202
Parties, 470 P.2d 11 Valarie REMERS, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; The PEOPLE, Real Party in Interest.
CourtCalifornia Supreme Court

Fred F. Cooper, Oakland, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Derald E. Granberg and Timothy A. Reardon, Deputy Attys. Gen., for respondent and for real party in interest.

PETERS, Justice.

Petitioner was charged with possession for sale of dangerous drugs. (Health & Saf.Code, § 11911.) After a hearing, the superior court denied petitioner's motion to suppress the evidence of the pills (Pen.Code, § 1538.5), and we issued an alternative writ of mandate.

This case is controlled by our decision in Cunha v. Superior Court, 2 Cal.3d 352, 85 Cal.Rptr. 160, 466 P.2d 704, and accordingly we hold that the arresting officers did not have probable cause to arrest and search petitioner and that the evidence uncovered by the search is inadmissible.

At approximately 10:52 p.m. on July 24, 1969, Officers McCarthy and Lipgens of the Berkeley Police Department were standing in front of Pepe's Pizza Parlor on Telegraph Avenue. 1 Officer McCarthy observed petitioner standing outside Pepe's talking with a 'hippie-type' male; she looked around 'over either shoulder,' removed a tinfoil package from her purse, and then 'nodded in a motion that they both go into Pepe's.' Officer McCarthy could not tell what was inside the tinfoil package. Officer McCarthy said to Officer Lipgens that "Valerie's got a deal going down," and the officers followed the couple into Pepe's. The officers approached petitioner, who was standing next to a table; Officer McCarthy said, 'Valerie, why don't we go outside and have a talk.' At about the same time, he saw Officer Lipgens reach into petitioner's purse and remove the package from it.

Officer Lipgens had not seen petitioner holding the tinfoil package outside of Pepe's. Officer McCarthy brought petitioner to Officer Lipgen's attention when he said words to the effect that "Valerie is getting ready to make a deal." As they approached petitioner in Pepe's, Officer Lipgens noticed a tinfoil package in her purse; he could see only the large tinfoil wrapping, and not the individually wrapped packets contained inside the larger wrapping. He reached into her purse and removed the tinfoil package. The package contained Seconal tablets individually wrapped in tinfoil.

Officer McCarthy testified that he had been working with a special platoon in the department for about two months prior to and including the date of the arrest, and that he had made 'numerous arrests' for narcotic violations during that period. He also testified that he had been informed by other officers that petitioner was selling dangerous drugs, but that he did not know of any officers who ever purchased narcotics from petitioner and that he did not know whether the basis of this information was an informer or some officer who observed petitioner make a sale; he did not see a 'Rap Sheet' or any other official department records that dealt with petitioner. Officer McCarthy described the area around Pepe's as having 'a reputation with the Police Department as being an area where there is a great deal of drug traffic, * * *.' Finally, he testified that in his experience dangerous drugs were packaged either in plastic baggies or in tinfoil. 2

Officer Lipgens testified that a few weeks prior to the arrest he had briefly discussed with Officer Oliver a previous arrest of petitioner for assault and possession of dangerous drugs, 3 and that Officer Oliver--who 'handled' the previous case--had indicated that petitioner was not actually involved in the assault and that large quantities of pills were found in the apartment where the assault occurred and in petitioner's possession. Officer Lipgens testified that he had seen the 'Rap Sheet' which reflected the above arrest, and that he recalled no other arrests of petitioner; however, he had made no attempt to determine whether the above charges against petitioner had been dropped, and, in fact, at the time of the hearing was unaware that the charges against petitioner had been dismissed at a preliminary examination on April 30, 1969. Finally, Officer Lipgens testified that his experience was that Seconal tablets are usually packaged in tinfoil.

It was stipulated by the defense counsel and the prosecutor at the hearing that there was only one prior arrest of petitioner; that there was no evidence offered at the April 30 preliminary hearing as to any drugs found in the apartment where petitioner was arrested, other than those found in another person's pockets; that the charges against petitioner were dismissed at the April 30 preliminary hearing; and that the dismissal was prior to petitioner's arrest in the instant case. In addition, the prosecutor conceded that during the prior arrest no dangerous drugs were found on the person of petitioner.

The People contend that the officers had probable cause to arrest petitioner immediately before the search of her purse, and hence that the search was incident to a valid arrest.

'To constitute probable cause for arrest, a state of facts must be known to the officer that would lead a man of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person arrested is guilty.' (People v. Hillery, 65 Cal.2d 795, 803, 56 Cal.Rptr. 280, 285, 423 P.2d 208, 213, and cases cited.) As with any intrusion upon an individual's personal security, 'simple "good faith on the part of the arresting officer is not enough,"' and 'in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' his suspicion. (Terry v. Ohio (1968) 392 U.S. 1, 21--22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889; see People v. Collins, 1 Cal.3d 658, 662, 83 Cal.Rptr. 179, 463 P.2d 403.)

Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful (Irwin v. Superior Court, 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 462 P.2d 12; People v. Moore, 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800; People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 96, 41 Cal.Rptr. 290, 396 P.2d 706); a fortiori, an arrest and search based on events as consistent with innocent activity as with criminal activity is unlawful.

In Cunha v. Superior Court, Supra, 2 Cal.3d 352, 355, 357-358, 85 Cal.Rptr. 160, 466 P.2d 704, we held that no implication of guilt can be drawn from the fact that a suspect indicates an apparent concern with privacy by looking around to see whether anyone is observing him (Cf. Tompkins v. Superior Court, 59 Cal.2d 65, 68, 27 Cal.Rptr. 889, 378 P.2d 113), and that a showing that an area is known to be the site of frequent narcotics traffic cannot convert into sufficient cause to arrest circumstances that are as consistent with innocence as with criminality (People v. Moore, Supra, 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800). We also held that, although specialized knowledge may render suspicious what would appear innocent to a layman, the test remains whether the circumstances would warrant a man of reasonable caution--who possessed such knowledge--in the belief that the action taken was appropriate. (Cunha v. Superior Court, Supra, 2 Cal.3d 352, 358, 85 Cal.Rptr. 160, 466 P.2d 704; cf. Terry v. Ohio, Supra, 392 U.S. 1, 21--22, 88 S.Ct. 1868.)

Cunha involved an arrest made by the same police officers--McCarthy and Lipgens--in the Telegraph Avenue area on the day before the arrest in the instant case. In that case, the officers observed defendant and a companion walking along a sidewalk "looking around. * * * (l)ooking back and to the side as to see if anyone was watching"' the suspects stopped some 40 to 50 feet from the officers, continued to look around, and each one reached into his pants pocket; the companion appeared to extract an object, defendant extracted what appeared to be money, and the two placed their hands together in an apparent exchange. After approaching the suspects, identifying themselves, and receiving a negative reply to the query "were you two dealing," the officers placed them under arrest. We held that the officers did not have probable cause for the arrest and therefore the evidence uncovered by the incidental search was inadmissible.

The circumstances in the instant case provide less justification for arrest than did the circumstances held insufficient to validate the arrest in Cunha. The act of showing a tinfoil package to a companion is even less suspicious than that of engaging in a sidewalk sale. Neither officer was able to see the contents of the package or any impressions on the tinfoil wrapping, and Officer McCarthy himself admitted at the preliminary hearing that for all he knew at the time he approached petitioner, the tinfoil package could have contained cookies. Petitioner exhibited less concern with her surroundings than did the suspects in Cunha; and her apparent concern was consistent with innocent activity--such as keeping an eye out for acquaintances.

The fact that the area is know to be the site of frequent narcotics traffic cannot convert circumstances as innocent as those involved in this case--an individual being generally concerned with her surroundings while displaying a tinfoil package to a companion--into sufficient cause to arrest. As was the case in Cunha--which, like the instant case, involved an arrest in the Telegraph Avenue area--'(t)o uphold an arrest based upon these activities because the officers believed they were in an area of frequent narcotics traffic would abridge, if not abrogate, the Fourth Amendment's protection against police intrusions conducted without substantial justification, and might well exacerbate...

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