Restani v. Superior Court

• Court: California Court of Appeals
• Citation: 91 Cal.Rptr. 429,13 Cal.App.3d 189
• Decision Date: 01 December 1970
• Parties: James Joseph RESTANI, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LAKE, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 28298.

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91 Cal.Rptr. 429 13 Cal.App.3d 189 James Joseph RESTANI, Petitioner,
v.
The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LAKE, Respondent;
PEOPLE of the State of California, Real Party in Interest. Civ. 28298. Court of Appeal, First District, Division 1, California. Dec. 1, 1970.
Hearing Denied Jan. 28, 1971.

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[13 Cal.App.3d 193] Michael T. Morton, Jennings, Gartland & Tilly, San Francisco, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, for real party in interest.

MOLINARI, Presiding Justice.

Petitioner was charged with possession of a restricted dangerous drug, to wit, amphetamine, in violation of Health and Safety Code section 11910, and with possession of marijuana, in violation of Health and Safety Code section 11530. A motion to suppress evidence pursuant to Penal Code section 1538.5 was denied by the Superior Court and we issued an alternative writ of prohibition in order to provide appellate review of the ruling as provided in section 1538.5. ¹

The pertinent facts are as follows: Officer Biddle of the Lake County Sheriff's

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Department, while on patrol, overheard a radio transmission to the effect that there was an all-points bulletin for a murder suspect in a white-over-maroon Volkswagen bus. The information regarding this vehicle originated in the following manner.

Although the record does not clearly indicate, it is apparent that a certain vehicle was suspect of involvement in a murder in San Jose. The pertinent portion of a San Jose police bulletin dated August 5, 1969 stated that 'Seen near the location of the bodies during the afternoon was a white ven type vehicle variously described as a Dodge, Chevrolet, Ford van, or Volkswagen.' (Emphasis added.) This bulletin was presumably relayed to law enforcement agencies throughout the state. However, when the information reached Sergeant Elton Lee of the California Highway Patrol by way of a dispatcher in Ukiah, the suspect vehicle was specifically described as a maroon Volkswagen bus with a white V on the front of it. The dispatcher informed Sergeant Lee that he had received the information from Chico which in turn had received the information from an officer in Red Bluff who had talked with a 'citizen,' who, insofar as may be gleaned from [13 Cal.App.3d 194] the record, was not identified. Sergeant Lee immediately passed on the bulletin to the sheriff's office. The sheriff's broadcast was received by Officer Biddle.

En route to the general area where the vehicle was believed to be heading, ² Biddle observed a vehicle matching the broadcast descriptions. He placed the vehicle under surveillance and followed it to a dead-end street. He did not at any time turn on his siren or the red light. Neither did he blow his horn. The suspect vehicle came to a stop in front of a house. Officer Biddle parked his patrol vehicle about 75 feet behind the suspect vehicle. Biddle, in plainclothes, emerged from his vehicle, and identified himself as a police officer as he was walking towards petitioner who had emerged from his vehicle and was walking toward the officer. Petitioner was requested to produce identification. Petitioner inquired as to the reason for his being stopped. Officer Biddle replied that petitioner's vehicle was a possible suspect vehicle in a crime committed in the Bay Area. Petitioner, followed by Biddle, went to his vehicle to get his driver's license. He reached inside and took a shaving kit from the floor, opened it and retrieved a wallet containing his license. Petitioner handed the license to Biddle. Biddle then asked if petitioner had been in the Bay Area, and if he had, when was the last time. Petitioner stated that he hadn't done anything and that if Biddle wanted to search the car he could do so. Petitioner then went around and opened all the doors of the vehicle and showed Biddle the 'different areas of the car.' The officer gave no indication whatsoever that he had any intention of or desire to search petitioner's vehicle. Biddle noticed that the vehicle had Bay Area license frames. As he followed petitioner around the vehicle, he observed through the open driver's door a white double-scored tablet in a red transparent plastic box inside the open shaving kit. Believing that the tablet was amphetamine, Bittle immediately placed petitioner under arrest. After advising petitioner of his rights, Biddle searched the car. The search revealed items believed by Biddle to be amphetamines, LSD, and marijuana.

On cross-examination, Biddle testified that he had been attached to the Lake County Narcotics Detail for nine months. Prior to that time he had 3,000 hours of experience, in-service training, and actual work as an undercover agent for the Sonoma County Sheriff's office, the state Bureau of Narcotics Enforcement, the San Francisco and Berkeley Police Departments, the Marin County Sheriff's office, and in his own private investigator business. He had also attended drug seminars on narcotics, and had made numerous arrests for possession of drugs having similar appearance as the tablet in the shaving

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kit and the ones discovered in the search of the vehicle.

[13 Cal.App.3d 195] Petitioner contends that (1) because the People failed to produce at the hearing the officer or officers who initiated the allpoints bulletin, they have failed to show probable cause for the initial detention, and (2) mere sight of the white-scored tablet does not give rise to probable cause for arrest for illegal possession of narcotics.

Adverting to petitioner's contentions, we observe that the validity of petitioner's arrest depends upon whether the People have sustained their burden of showing probable cause for petitioner's initial detention. If such burden has not been met we must then determine whether there was probable cause for the arrest obtained by means sufficiently distinguishable to purge the primary taint attendant the illegality of an unpermitted detention.

The law is well established in this state that circumstances short of probable cause to make an arrest may justify the stopping by an officer of pedestrians or motorists on the streets for investigation or questioning. Should the investigation then reveal probable cause to make an arrest, the officer may arrest the suspect and conduct a reasonable incidental search. (People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531; People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57; People v. Mickelson, 59 Cal.2d 448, 450--451, 30 Cal.Rptr. 18, 380 P.2d 658.)

However, to justify even a limited detention as a necessary course in the proper discharge of an officer's duties, there must exist some suspicious or unusual circumstances which are sufficiently distinguishable from innocent activity so that taken together with the rational inferences to be drawn from the facts, they would reasonably warrant the conclusion that criminal activity is afoot. (Terry v. Ohio, 392 U.S. 1, 21--22, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 94--96, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Moore, 69...