Tony C., In re

Citation21 Cal.3d 888,148 Cal.Rptr. 366
Decision Date24 August 1978
Docket NumberCr. 20142
CourtUnited States State Supreme Court (California)
Parties, 582 P.2d 957 In re TONY C., a person coming under the juvenile court law. Kenneth F. FARE, as Acting Chief Probation Officer, etc., Plaintiff and Respondent, v. TONY C., Defendant and Appellant.

William T. Harter, Sherman Oaks, under appointment by the Supreme Court, for defendant and appellant.

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Richard A. Curtis and Cheryl Lutz, Deputy State Public Defenders, Thomas E. Bruyneel and Susan Rutberg, San Francisco, as amici curiae on behalf of defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Jack T. Kerry, Deputy Attys. Gen., for plaintiff and respondent.

D. Lowell Jensen, Dist. Atty., John J. Meehan, Asst. Dist. Atty., William A. McKinstry and William M. Baldwin, Deputy Dist. Attys., as amici curiae on behalf of plaintiff and respondent.

MOSK, Justice.

Tony C., a minor, appeals from two orders adjudging him a ward of the juvenile court (Welf. & Inst. Code, § 602) upon findings that he received stolen property (petition "A") and committed rape by threat of great bodily harm (petition "C").

Petition "A"

The evidence connecting Tony with the offense alleged in petition "A" was found in a search of his person while he was being booked after his arrest on an unrelated charge. His principal contention is that the evidence was illegally obtained because the police did not have sufficient cause to stop and detain him prior to that arrest. We review the controlling rules.

It is settled that circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation. (People v. Mickelson (1963) 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658; Terry v. Ohio (1968) 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889.) Although each case must be decided on its own facts, certain standards for judging the lawfulness of the officer's conduct have emerged from our decisions. (See People v. Harris (1975) 15 Cal.3d 384, 388-389, 124 Cal.Rptr. 536, 540 P.2d 632; People v. Flores (1974) 12 Cal.3d 85, 91, 115 Cal.Rptr. 225, 524 P.2d 353; People v. Gale (1973) 9 Cal.3d 788, 797-798, 108 Cal.Rptr. 852, 511 P.2d 1204; Irwin v. Superior Court (1969) 1 Cal.3d 423, 426-427, 82 Cal.Rptr. 484, 462 P.2d 12; People v. Moore (1968) 69 Cal.2d 674, 682-683, 72 Cal.Rptr. 800, 446 P.2d 800; People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 95-96, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Mickelson (1963) supra, 59 Cal.2d 448, 450-452, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Simon (1955) 45 Cal.2d 645, 650, 290 P.2d 531.) 1 The guiding principle, as in all issues arising under the Fourth Amendment and under the California Constitution (Cal.Const., art. I, § 19; see People v. Triggs (1973) 8 Cal.3d 884, 891-892, fn. 5, 106 Cal.Rptr. 408, 506 P.2d 232), is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." (Terry v. Ohio, supra, 392 U.S. at p. 19, 88 S.Ct. at p. 1879.) Because of the limited scope of that invasion in the present context, it need not be supported by the actual belief in guilt required to arrest, book, and jail an individual on a named criminal charge. (People v. Harris, supra, 15 Cal.3d at p. 389, 124 Cal.Rptr. 536, 540 P.2d 632.)

Yet the interest at stake is far from insignificant: it is the right of every person to enjoy the use of public streets, buildings, parks, and other conveniences without unwarranted interference or harassment by agents of the law. (See, e. g., People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 815, 91 Cal.Rptr. 729, 478 P.2d 449, and cases cited.) "A police officer may not use the authority of his uniform and badge to go around promiscuously bothering citizens." (Batts v. Superior Court (1972) 23 Cal.App.3d 435, 439, 100 Cal.Rptr. 181, 184.)

Balancing these factors, the courts have concluded that in 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 (People v. Superior Court (Kiefer) supra, 3 Cal.3d at p. 827, 91 Cal.Rptr. 729, 478 P.2d 449), to suspect the same criminal activity and the same involvement by the person in question. 2 The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. (Terry v. Ohio, supra, 392 U.S. at p. 22, 88 S.Ct. 1868.)

The appellant herein also relies on language in Irwin to the effect that "Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful." (1 Cal.3d at p. 427, 82 Cal.Rptr. 486, 462 P.2d 14.) Although some courts have invoked this language in invalidating a stop or detention (e. g., People v. Evans (1977) 65 Cal.App.3d 924, 931-932, 134 Cal.Rptr. 436; People v. Lathan (1974) 38 Cal.App.3d 911, 918, 113 Cal.Rptr. 648), a line of decisions beginning with People v. Superior Court (Acosta) (1971) 20 Cal.App.3d 1085, 98 Cal.Rptr. 161, has sharply criticized the statement on various grounds and has declined to follow it as a rule of law. (See People v. Moreno (1977) 67 Cal.App.3d 962, 969, 146 Cal.Rptr. 35, and cases cited.) Upon analysis it appears the statement is not directly supported by the authorities cited in Irwin (1 Cal.3d at p. 427, 82 Cal.Rptr. 484, 462 P.2d 12), and moreover was not necessary to the decision therein: Irwin's detention was based totally on a hunch, and the record permitted no reasonable suspicion whatever of criminal activity on his part. (Id. at pp. 427-428, 82 Cal.Rptr. 484, 462 P.2d 12.) His conduct "was not merely 'as consistent with innocent activity as with criminal activity,' it was only consistent with innocent activity." (Barber v. Superior Court (1973) 30 Cal.App.3d 326, 330, 106 Cal.Rptr. 304, 306.) Nor has this court applied the Irwin dictum in any subsequent decision involving an investigative stop or detention; our sole references to it have been as examples and therefore also dicta in cases dealing with probable cause to arrest and search. (People v. Triggs (1973) supra, 8 Cal.3d 884, 895, 106 Cal.Rptr. 408, 506 P.2d 232; Remers v. Superior Court (1970) 2 Cal.3d 659, 664, 87 Cal.Rptr. 202, 470 P.2d 11; see also People v. Martin (1973) 9 Cal.3d 687, 692, 108 Cal.Rptr. 809, 511 P.2d 1161.)

Reconsidering the matter, we are of the view that the Irwin dictum cannot be squared with the rule that a reasonable suspicion of involvement in criminal activity will justify a temporary stop or detention. Under that standard, if the circumstances are "consistent with criminal activity," they permit even demand an investigation: the public rightfully expects a police officer to inquire into such circumstances "in the proper discharge of the officer's duties." (People v. Flores, supra, 12 Cal.3d at p. 91, 115 Cal.Rptr. at p. 228, 524 P.2d at p. 356.) No reason appears for a contrary result simply because the circumstances are also "consistent with lawful activity," as may often be the case. The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal to "enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges." (People v. Manis (1969) supra, 269 Cal.App.2d 653, 665, 74 Cal.Rptr. 423, 431.) The citizen's undoubted interest in freedom from abuse of this procedure is protected so far as it is within the law's power to do so by the correlative rule that no stop or detention is permissible when the circumstances are not reasonably "consistent with criminal activity" and the investigation is therefore based on mere curiosity, rumor, or hunch. Because the Irwin dictum is thus in conflict with the settled standards for dealing with this sensitive problem, it is disapproved.

The Attorney General invokes yet another rule, contending that the intrusion here challenged was not a "stop" or "detention" but merely a "contact" and therefore required no justification at all. While there is no talismanic import in these terms, they are convenient labels for identifying a distinction that the courts have correctly recognized: "Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrest, or injuries, or loss of life." (Terry v. Ohio, supra, 392 U.S. at p. 13, 88 S.Ct. at p. 1875.) Some of these encounters are subject to the foregoing rules, others are obviously not. The question, of course, is where to draw the line.

Again each case must be decided on its own facts, but certain guidelines have developed. It has been said that a detention occurs if the suspect is not free to leave at will if he is kept in the officer's presence by physical restraint, threat of force, or assertion of authority. (See, e. g., Restani v. Superior Court (1970) 13 Cal.App.3d...

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