Santos v. Superior Court, A024469

• Decision Date: 06 April 1984
• Docket Number: No. A024469,A024469
• Citation: 202 Cal.Rptr. 6,154 Cal.App.3d 1178
• Court: California Court of Appeals Court of Appeals
• Parties: Julio Horonto SANTOS, Petitioner, v. SUPERIOR COURT of Santa Clara County, Respondent, PEOPLE of the State of California, Real Party in Interest.

Page 6

202 Cal.Rptr. 6

154 Cal.App.3d 1178

Julio Horonto SANTOS, Petitioner, v. SUPERIOR COURT of Santa Clara County, Respondent PEOPLE of the State of California, Real Party in Interest.

No. A024469.

Court of Appeal, First District, Division 3, California.

April 6, 1984.

Sheldon Portman, Public Defender, Robert A. Weeks, F. Benjamin Rice, Deputy Public Defenders, John M. Wadsworth, Bar Certified Law Student, County of Santa Clara, San Jose, for petitioner.

John K. Van De Kamp, Atty. Gen., Thomas A. Brady, Karl W. Payne, Deputy Attys. Gen., San Francisco, for real party in interest.

WHITE, Presiding Justice.

This petition for writ of mandate and/or prohibition challenges a trial court ruling denying petitioner's motion to suppress evidence. (Pen.Code, § 1538.5.)

Two issues require our attention:

(1) Did the officers have sufficient grounds to detain petitioner when his two companions were seen passing objects in a closed-off parking lot at 10:00 p.m.?

(2) If the detention was proper, was pat search of petitioner justified by the circumstances?

Petitioner had been charged by information filed in Santa Clara County Superior Court with burglary (Pen.Code, § 459), receiving stolen property (Pen.Code, § 496) and possession of a dirk or dagger (Pen.Code, § 12020, subd. (a)). In superior court he moved to suppress evidence seized as a result of his detention by the police. The motion was based upon evidence presented at a de novo hearing held August 29, 1983. At the hearing, the court denied the motion to suppress. This petition followed.

STATEMENT OF FACTS

Officer Vincent Di Corti was patrolling with his partner, Officer Mike Maier, at 10:00 p.m. on Friday, May 27, 1983. In the area of Pomeroy and El Camino in Santa Clara he noticed three people standing in a parking lot, talking. His attention was attracted by the fact that they were in an area that was barricaded off with street barricades that indicated that that portion of the parking lot was closed to the public. Also, a man later identified as a Mr. Gervais was exchanging something from his wallet with an unidentified man. Businesses were near the parking lot, but only a liquor store west of the cordoned off area was open at that time of the night. A different parking area was provided for the liquor store.

Officer Di Corti felt there was "some type of possible illegal activity going on between the passing of the item, whatever it was, and plus the fact that they were in the closed-off portion of the parking lot." He was aware of a municipal ordinance prohibiting loitering around closed businesses. As he approached the three individuals to make contact, they were leaving the parking lot. Petitioner and Mr. Gervais left in one direction, and the unidentified person, whom the officers did not stop, left in the opposite direction.

Officer Di Corti stopped Mr. Gervais while Officer Maier stopped petitioner. Officer Maier testified that he was working as a reserve police officer on the evening in question (his usual occupation is supervisor for an electronic firm). When he and Officer Di Corti contacted the two men, Officer Maier took petitioner off about ten feet from Officer Di Corti and began to talk to him and pat search him. Officer Maier first asked petitioner for identification and to explain what he was doing there. (The record does not reveal petitioner's answer.) He also pat searched him. At the hearing, he explained the reason for his pat search as follows:

"A. Standard procedure, officer's discretion and my training.

"Q. [by prosecutor]: Now, you said three items, standard procedure. Do you pat down everybody with whom you have contact on the street?

"A. No, Ma'am. Just when the situation dictates and using my own discretion as to the situation.

"Q. What was it about this situation that prompted you to do a pat-down search?

"A. The day of the week, Friday night, on El Camino, which has a problem with the cruisers. It was 10:00 o'clock in the evening. And suspected activity of the two subjects at the time of the stop.

"Q. What was, in your opinion, the suspected activity of the subjects?

"A. That is what we were trying to find out. They were talking suspiciously in the parking lot that was closed off and was closed off to all traffic, pedestrains and vehicles, and we were there to find out why.

"Q. Prior to pat searching Mr. Santos, had you received any identification from him?

"A. I do not recall. I don't think so. To correct that, yes, he did not have any identification on him as he told me.

"Q. Was it subsequent to that that you pat searched him?

"A. Right after he did tell me he had no identification I did a pat search.

"Q. Approximately how long after you first made contact with Mr. Santos did you pat search him, approximately, if you remember?

"A. Maybe two minutes at the very most."

During the pat search, Officer Maier felt a hard object on petitioner's right lower back, stuck in his belt. It felt like it might be a knife handle or the handle of a small gun. He removed it, discovering that it was a double-edged knife in a sheath. After removing the knife, Officer Maier "finished the pat-down search, pulling a number of other objects out of his pockets and his coat." Petitioner had not yet been placed under arrest.

On cross-examination by petitioner's counsel, Officer Maier explained his actions a little further: "If you are familiar with the El Camino on Friday and Saturday nights, we have problems with cruisers, dealing with a large number of alcohol-related violations, drug-related violations, thefts, vandalism. The area was sectioned off from foot traffic and vehicle traffic at that one intersection." Officer Maier explained why he took other items from petitioner's pockets after finding the knife:

"Q. [by defense counsel]: Did you, during the course of the pat-down, after finding the knife, find anything else on patting him down that reasonably in your opinion appeared to be a weapon?

"A. That is why I pulled the objects out of his pockets.

"Q. Because they felt like weapons?

"A. They were questionable.

"Q. What did they feel like?

"A. That was what I was trying to find out.

"Q. But you didn't know?

"A. That is why I pulled them out to find out.

"Q. Can you tell me at this time how they felt, size, shape?

"A. Hard. Anything that I considered able to hold or conceal a weapon of any type.

"Q. Could you tell me what type of weapon, if anything in your experience, that you have seen in your experience, that they resembled or reminded you of?

"A. As far as resembling, cigarette lighters, but again lighters that can be turned up to high volume for one. Two any object that can conceal a razor blade that can be used, pen--sharpened tips on pens. Those are objects I have seen in my experience."

DISCUSSION

(1) DID THE OFFICERS HAVE SUFFICIENT GROUNDS TO DETAIN PETITIONER WHEN HIS TWO COMPANIONS WERE SEEN PASSING OBJECTS IN A CLOSED-OFF PARKING LOT AT 10:00 P.M.?

Petitioner contends that the police officers did not have probable cause to arrest him for violation of the loitering statute because in the context of a penal statute "loiter" requires a sinister purpose for presence in a particular place. He argues that the observation of something being passed from Mr. Gervais to the unidentified person does not satisfy the requirement of a sinister purpose because the officers could not tell what that "something" was.

Real party correctly perceives that the initial question is not whether there was probable cause to arrest for loitering, but whether the observations of the officers justified a temporary detention for the purpose of investigation. Real party argues that the officers had sufficient grounds to suspect a violation of the loitering ordinance and were entitled to investigate.

"[I]n order to justify an investigative stop or 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 the same involvement by the person in question." (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.)

By focusing on the question of probable cause to arrest, petitioner fails to present any theory for why the officers could not reasonably suspect criminal activity and detain petitioner to investigate. While an exchange of unidentified objects in a high narcotics area may not provide probable cause for arrest (see Cunha v Superior Court (1970) 2 Cal.3d 352, 357, 85 Cal.Rptr. 160, 466 P.2d 704; Filitti v. Superior Court (1972) 23 Cal.App.3d 930, 933-934, 100 Cal.Rptr. 583), that activity and the possible violation of the municipal ordinance furnished grounds for detaining petitioner for questioning. ¹ The more serious question is whether those observations plus petitioner's failure to produce identification add up to grounds for the further intrusion of a pat-search.

(2) IF THE DETENTION WAS PROPER, WAS PAT SEARCH OF PETITIONER JUSTIFIED BY THE CIRCUMSTANCES?

"The United States Supreme Court in Terry v. Ohio (1968) 392 U.S. 1, 27 [88 S.Ct. 1868, 1883, 20 L.Ed.2d 889] ... held that a police officer could undertake a pat-down search only 'where [the officer] has reason to believe that he is dealing with...