Wilson v. Superior Court, Los Angeles County

CourtCalifornia Court of Appeals
Writing for the CourtL. THAXTON HANSON; L. THAXTON HANSON; L. THAXTON HANSON; DALSIMER; L. THAXTON HANSON; A major share is for extra court hearings and elaborate new red tape in every criminal case--most of which are misdemeanors. This will require more courts; Tobriner
Citation134 Cal.App.3d 1062,185 Cal.Rptr. 678
PartiesClerow WILSON aka Flip Wilson, Petitioner, v. SUPERIOR COURT OF the State of California, For the COUNTY OF LOS ANGELES, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 64102.
Decision Date23 July 1982

Page 678

185 Cal.Rptr. 678
134 Cal.App.3d 1062
Clerow WILSON aka Flip Wilson, Petitioner,
v.
SUPERIOR COURT OF the State of California, For the COUNTY OF LOS ANGELES, Respondent,
PEOPLE of the State of California, Real Party in Interest.
Civ. 64102.
Court of Appeal, Second District, Division 1, California.
July 23, 1982.
As Modified Aug. 20, 1982.
For Opinion on Hearing, see 195 Cal.Rptr. 671, 670 P.2d 325.

Page 679

Paul F. Moore II and Thomas P. Allen III, Los Angeles, for petitioner.

John K. Van de Kamp, Dist. Atty., Harry B. Sondheim, Head, Appellate Division, Donald J. Kaplan, Roderick W. Leonard and Suzanne Person, Deputy Dist. Attys., for real party in interest.

No appearance for respondent.

Quin Denvir, State Public Defender, and Charles M. Sevilla, Chief Deputy State Public Defender, as amicus curiae on behalf of petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., Shunji Asari, Deputy Attys. Gen., as amicus curiae on behalf of respondent.

INTRODUCTION

L. THAXTON HANSON, Associate Justice.

Petitioner/defendant Clerow Wilson aka Flip Wilson (hereinafter defendant and/or Wilson) seeks a peremptory writ mandating respondent court to vacate its ruling denying his motion pursuant to Penal Code section 1538.5 (hereinafter section 1538.5) to exclude as evidence contraband (hashish oil and cocaine) found in his attache case at the Los Angeles International Airport after he deplaned from a flight from Miami, Florida.

The determinative issue of this case is whether or not defendant Wilson was improperly initially subjected to a "detention" at the airport in violation of his "Fourth Amendment" rights as referred to in the federal Constitution and the parallel provision in California's Constitution guaranteeing against unreasonable "seizures."

Superimposed on the determinative issue, and of no little significance, is our duty to

Page 680

determine the effect on this case, if any, of the passage on June 8, 1982, of Proposition 8 entitled "Criminal Justice--Initiative Statutes and Constitutional Amendment" now enacted in article I, section 28, of the California Constitution commonly referred to as the "Victims' Bill of Rights," (hereinafter Proposition 8) and specifically section 28, subdivision (d), of the initiative entitled "Right to Truth-in-Evidence" (hereinafter "Truth-in-Evidence" provision). Proposition 8 became effective on June 9, 1982, while the instant case was pending before this court.
PROCEDURAL HISTORY

On April 30, 1981, defendant Wilson was charged in a two-count information with possession of cocaine in violation of Health and Safety Code section 11350, a felony (count I) and possession of hashish oil (concentrated cannabis) in violation of Health and Safety Code section 11357(a), a felony (count II).

On May 13, 1981, the defendant pled not guilty and made a motion pursuant to section 1538.5 to exclude as evidence the narcotics found in his possession.

On October 16, 29 and 30, 1981, defendant's motion to suppress the evidence was heard and denied.

On November 30, 1981, defendant filed with this court a "Petition For Writ of Prohibition (Stay) and Writ of Mandate" seeking to have the superior court's ruling on his motion annulled and vacated.

On January 22, 1982, this court summarily denied the petition (per Lillie, Acting P.J., and Hanson, J.; with Dalsimer, J., voting to grant the petition.)

On February 1, 1982, defendant Wilson filed a "Petition in the Alternative for Writ of Mandate and/or Writ of Prohibition" with the California State Supreme Court essentially containing the same supporting documentation previously supplied this Court of Appeal.

On February 18, 1982, the State Supreme Court made the following order:

"Petition for hearing GRANTED. The matter is transferred to this court and retransferred to the Court of Appeal, Second District, Division One, with directions to issue an alternative writ to be heard before that court when the proceeding is ordered on calendar. (See People v. Bower, 24 Cal.3d 638, 643, 156 Cal.Rptr. 856, 597 P.2d 115, and In re Tony C., 21 Cal.3d 888, 895-896, 148 Cal.Rptr. 366, 582 P.2d 957.)"

On March 26, 1982, this court in compliance with the above order issued an "Alternative Writ of Mandate," and the matter was heard on May 25, 1982, and submitted.

On June 8, 1982, before our decision was rendered, the California electorate passed Proposition 8 containing the "Right to Truth-in-Evidence" provision (§ 28(d)) which became effective on June 9, 1982.

On July 1, 1982, after first vacating the May 25, 1982, submission order and receiving and considering supplementary written briefs from counsel limited to the issue of the effect, if any, of the passage of Proposition 8 upon issues relevant to this case, this court heard additional oral argument and resubmitted the matter. Amicus curiae briefs were invited, received and considered from the offices of both the State Attorney General and the State Public Defender, and representatives from those offices were granted permission, and did, orally argue their respective positions at the hearing.

FACTS

We view the evidence in the light most favorable to the order denying suppression as required by the familiar rule governing appellate review. (People v. Leyba (1981) 29 Cal.3d 591, 174 Cal.Rptr. 867, 629 P.2d 961.)

Defendant Wilson's motion to suppress evidence was hotly contested during a three-day hearing in the superior court. (Hon. Edward A. Hinz, J. presiding.)

At the hearing, Officer Roy (Roi) Kaiser of the Police Department of the City of Los Angeles assigned to the Narcotics Division testified that he had been a narcotics officer

Page 681

for about ten years engaged exclusively in major drug peddling suppression within the City of Los Angeles, and that for approximately four and one-half years he had been specifically assigned to the Los Angeles International Airport Narcotics Bureau. Officer Kaiser stated that he had participated in excess of a thousand narcotics investigations and made hundreds of arrests of persons involved in violation of the state and federal narcotics laws; that he had lectured extensively across the United States at various drug enforcement agency seminars; and that he had testified as an expert in both state and federal courts across the United States.

Officer Kaiser testified that on March 10, 1981, at approximately 11:30 or 11:45 o'clock, a.m., while at the Satellite area of Pan American Airlines at the Los Angeles International Airport and dressed in casual street attire, he observed defendant Wilson deplaning carrying an attache case. The defendant was accompanied by another black male person (established as defendant's nephew Rashon Wilson) who was carrying a box that had the name "Flip Wilson" written on it. Officer Kaiser, whose duty was to monitor in a general fashion in-bound Florida flights on a daily basis, did not expect defendant Wilson to get off of that particular airplane but had prior information that he (Wilson) might be arriving on a flight from Florida on that date.

Officer Kaiser monitored the movement of the defendant and Rashon Wilson and "observed the two of them to be looking about inside the arrival area," and that on at least two specific occasions Rashon Wilson made eye contact with him (Officer Kaiser) in the arrival area. Officer Kaiser testified that in the past such behavior, eye contact and looking about after deplaning these flights, was engaged in by other persons he had arrested for transporting narcotics. (On cross-examination the officer testified that the specific type of eye contact he had with Rashon Wilson was similar to the eye contact he had with others who were drug carriers.)

Officer Kaiser walked behind the defendant and his companion down the escalator into the concourse to the terminal building. About midway in the concourse, the officer observed Rashon Wilson look to his rear in the officer's general direction, then immediately turn and appear to speak to defendant Wilson who also looked back in the officer's general direction.

Officer Kaiser followed the two to the end of the concourse where they met defendant's wife, Mrs. Wilson. The three then walked out onto the sidewalk in front of the terminal building where Rashon Wilson handed the defendant the box Rashon Wilson was carrying. Defendant Wilson then went to the curb and placed the attache case he was carrying and the box handed to him in the rear passenger section of a vehicle parked at the curb. He and Mrs. Wilson entered the vehicle.

Officer Kaiser observed Rashon Wilson converse with the occupants inside the vehicle and then go to the baggage room of Pan American Airlines. Officer Kaiser followed Rashon Wilson to the baggage room and saw him get two pieces of luggage off the rack, exit the baggage room and walk in the direction of the vehicle at the curb. At the same time Officer Kaiser saw his partner, Officer Gary Frederick of the Los Angeles Sheriff's Department, approach Rashon Wilson and have a conversation with him. Officer Kaiser did not enter into this conversation. The three then walked back to the vehicle parked at the curb.

When Officer Kaiser arrived back at the vehicle, he observed defendant Wilson standing at the rear of the vehicle by the open trunk. Officer Kaiser told the defendant he was a police officer and produced police identification. The officer then asked defendant Wilson if he "might have a minute of his time" to which the defendant replied "Sure." The officer then advised the defendant that he was conducting a narcotics investigation and that information had been received that he (defendant Wilson) would be arriving from Florida carrying a lot of drugs and asked if he (Officer Kaiser) could search the luggage at the curb and the box inside the vehicle. Defendant Wilson said "Sure. I don't have

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any drugs that I...

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2 practice notes
  • Gonzalez v. Superior Court, Los Angeles County
    • United States
    • California Court of Appeals
    • 24 February 1983
    ...the passage of Proposition 8. On July 1, 1982 the instant cases were argued at the same time as the case of Wilson v. Superior Court, 134 Cal.App.3d 1062, 185 Cal.Rptr. 678 which presented similar On September 24, 1982 the July 1, 1982 submission was vacated since a petition for hearing on ......
  • People v. Challoner, Cr. 41042
    • United States
    • California Court of Appeals
    • 21 October 1982
    ...initiative facially constitutional in Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30. In Wilson v. Superior Court (1982) 134 Cal.App.3d 1062, 185 Cal.Rptr. 678, this court, in addition also to concluding that Proposition 8 was constitutional, held that the "Truth-in-Evidence" pro......
2 cases
  • Gonzalez v. Superior Court, Los Angeles County
    • United States
    • California Court of Appeals
    • 24 February 1983
    ...the passage of Proposition 8. On July 1, 1982 the instant cases were argued at the same time as the case of Wilson v. Superior Court, 134 Cal.App.3d 1062, 185 Cal.Rptr. 678 which presented similar On September 24, 1982 the July 1, 1982 submission was vacated since a petition for hearing on ......
  • People v. Challoner, Cr. 41042
    • United States
    • California Court of Appeals
    • 21 October 1982
    ...initiative facially constitutional in Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30. In Wilson v. Superior Court (1982) 134 Cal.App.3d 1062, 185 Cal.Rptr. 678, this court, in addition also to concluding that Proposition 8 was constitutional, held that the "Truth-in-Evidence" pro......

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