PEOPLE v. McKELVY

OPINION

TAMURA, J.

Defendant was charged with possession of a restricted dangerous drug (Health Saf. Code, § 11910). Following denial of a Penal Code, section 1538.5 motion to suppress, defendant pleaded guilty to the charge as a misdemeanor and was granted probation. His purported appeal from the "judgment" will be treated as an appeal from the order granting probation.

Following denial of his motion to suppress, defendant filed a petition for writ of prohibition or mandamus from this court to review the order denying the motion to suppress. We denied the petition on the ground "the record lodged with this court in support of said petition is incomplete and inadequate" (4th Civ. No. 10971) and defendant's petition for hearing by the Supreme Court was denied. The record thus discloses that denial of defendant's petition for a pretrial writ under Penal Code, section 1538.5, was not on the merits. But even if the record did not affirmatively so indicate, denial without opinion of such pretrial petition for a writ cannot be deemed a conclusive decision on the merits and defendant is entitled to a reviewing court's determination of the validity of the search and seizure on a subsequent appeal from a judgment of conviction. ( People v. Medina, 6 Cal.3d 484, 492-493 [ 99 Cal.Rptr. 630, 492 P.2d 686].)

The sole issue is the legality of the seizure of the contraband which formed the basis for defendant's conviction.

Officer Lingren of the San Bernardino Police Department was the only witness at the hearing on the motion to suppress. His testimony was in substance as follows:

In the early morning hours of April 11, 1970, Lingren, accompanied by three other officers, was on patrol duty in a marked police unit in the west side area of San Bernardino. As a result of a race riot, a curfew had been imposed which forbade loitering between 11:45 p.m. and 6 a.m.

The ordinance provided in pertinent part: "1. No person shall loiter in or about any public street or other place . . . between the hours of 11:45 p.m. on August 10, 1970 and 6:00 a.m. on August 11, 1970."

About 3 a.m. Lingren saw defendant proceeding north along Muscott Street, walking across front lawns of residences. The officer considered this to be "peculiar" because "there [were] sidewalks through the area." The officers put the spotlight on defendant, and as they did so, defendant glanced back and was seen to place "a small dark-colored object" he was holding in his hand into his front pants pocket. The officers stopped the patrol car and Lingren, armed with a shotgun, approached defendant. At the same time the other three officers, each carrying either a shotgun or carbine, moved "into position" to cover the police unit and each other. Lingren testified this was normal police procedure because of the possibility of "Molotov cocktails."

Lingren's initial purpose in stopping defendant was to find out why he was out on the street. When the officer asked defendant where he was going, defendant replied he was going to his home on Ramona Street. Lingren testified the answer was suspicious because "going home" was the common answer he received from "95% of the people we stopped and talked to." Without further inquiry Lingren asked defendant to hand over the object he had placed in his pocket. Defendant complied and handed the officer a small brown bottle containing white and pink tablets. Defendant was thereupon placed under arrest. Lingren testified he arrested defendant for a curfew violation.

The People urge that the order denying the motion to suppress may be upheld on several theories: (1) Voluntary consent to seizure; (2) search incident to lawful arrest for a curfew violation, (3) search incident to a valid detention for investigation. It is our conclusion that seizure of the contraband cannot be justified on any of the proffered theories.

I

The order denying the motion to suppress cannot be sustained on the basis of an implied finding of voluntary consent.

(1) Once it is established that a search or seizure was made without a warrant, the burden is on the prosecution to show proper justification. ( People v. Marshall, 69 Cal.2d 51, 56 [ 69 Cal.Rptr. 585, 442 P.2d 665].) (2) Where the government relies upon consent, it has the burden of presenting "substantial evidence of consent to the search." ( Castaneda v. Superior Court, 59 Cal.2d 439, 444 [ 30 Cal.Rptr. 1, 380 P.2d 641].) The burden has been characterized as a "heavy" one. ( Parrish v. Civil Service Commission, 66 Cal.2d 260, 270 [ 57 Cal.Rptr. 623, 425 P.2d 223].) The government must show "that the consent was, in fact, freely and voluntarily given" and the "burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." ( Bumper v. North Carolina, 391 U.S. 543, 548-549 [20 L.Ed.2d 797, 802, 88 S.Ct. 1788, 1792].) The People must show that consent was "uncontaminated by any duress or coercion, actual or implied." ( Channel v. United States (9th Cir. 1960) 285 F.2d 217, 219; Judd v. United States, 190 F.2d 649, 651 [89 App.D.C. 64]; see People v. Cruz, 264 Cal.App.2d 437, 442 [ 70 Cal.Rptr. 249].)

(3) "`To protect his right to object to an unreasonable search or seizure a defendant need not forcibly resist an officer's assertion of authority to . . . search . . . his person [citations], but if he freely consents to . . . [a] search, or voluntarily produces evidence against himself, his constitutional rights are not violated and any search or taking of evidence pursuant to his consent is not unreasonable. [Citations.]'" ( Lane v. Superior Court, 271 Cal.App.2d 821, 825 [ 76 Cal.Rptr. 895]; Castaneda v. Superior Court, supra, 59 Cal.2d 439, 442; People v. Shelton, 60 Cal.2d 740, 746 [ 36 Cal.Rptr. 433, 388 P.2d 665]; People v. Michael, 45 Cal.2d 751, 753 [ 290 P.2d 852].) (4) Whether in a particular case an apparent consent was voluntarily given or was in submission to an express or implied assertion of authority, is ordinarily a question of fact to be determined from all the circumstances. ( Castaneda v. Superior Court, supra, 59 Cal.2d 439, 442; People v. Shelton, supra, 60 Cal.2d 740, 746.) But where the undisputed facts clearly reveal that an apparent consent was not freely and voluntarily given but was in submission to an assertion of authority, a reviewing court is not bound by a finding of consent by the trial court. ( Lane v. Superior Court, supra, 271 Cal.App.2d 821, 825-826; see Parrish v. Civil Service Commission, supra, 66 Cal.2d 260, 270.)

(5) Applying the foregoing principles to the present case, the uncontroverted facts were that defendant was standing in a police spotlight, surrounded by four officers all armed with shotguns or carbines. In these circumstances no matter how politely the officer may have phrased his request for the object, it is apparent that defendant's compliance was in fact under compulsion of a direct command by the officer. (See People v. Hubbard, 9 Cal.App.3d 827, 831 [ 88 Cal.Rptr. 411]; Stern v. Superior Court, 18 Cal.App.3d 26, 30 [ 95 Cal.Rptr. 541] (consent at gunpoint following arrest cannot validate search).) The evidence established "no more than acquiescence to a claim of lawful authority." Any implied finding that defendant handed over the object voluntarily is not supported by substantial evidence.

II

(6a) Nor can the seizure be justified as a search incident to a lawful arrest for a curfew violation.

Because of tensions engendered by race riots, the Mayor of the City of San Bernardino, pursuant to a civil disaster ordinance, promulgated curfew regulations which included a prohibition against loitering "in or about any public street or other public place" between prescribed hours. Officer Lingren testified he arrested defendant for a curfew violation because he was "evasive more or less in his answers" and that "he had actually no purpose in the area." While the riot situation and the lateness of the hour may have been reasonable justification for stopping and temporarily detaining defendant for the purpose of requesting his identity and his reason for being on the street, the evidence does not support a finding of probable cause to arrest for loitering in violation of the curfew regulations.

The amended curfew regulations promulgated by the mayor were as follows:
"Under the state of civil disaster now existing in San Bernardino, California, and pursuant to the authority vested in me by Ordinance No. 1931 to make and issue rules and regulations on matters reasonably related to the protection of life and property as affected by such disaster, I hereby make and issue the following rules and regulations subject to confirmation by the Common Council at its next meeting:
"1. No person shall loiter in or about any public street or other public place in the City of San Bernardino between the hours of 11:45 p.m. of August 10, 1970, and 6:00 a.m. of August 11, 1970 and between the hours of 6:00 p.m. of August 12, 1970 and 6:00 a.m. of the following day.
"2. No person shall conduct or participate in a meeting, assembly or parade, or use a voice or sound amplifier, in or upon the public streets or highways or other public place in the City of San Bernardino at any time during the presently proclaimed state of civil disaster.
"3. Any violation of these rules and regulations shall be punished as provided by Ordinance No. 1931."
The record reveals that the only difference between the amended curfew regulations, quoted above, and the original ordinance is the period of time involved which is not pertinent to our case.

(7) The validity of the curfew regulation imposed in the instant case has not been questioned nor need we reach that issue in order to resolve the issues posed by the present appeal. But it is proper to note that because such regulations drastically curb an individual's freedom, only a clear showing of emergent necessity can justify its imposition. (See Judicial Control of the Riot Curfew, 77 Yale L.J. 1560.) Freedom of movement is a fundamental right and its exercise may be restricted only where necessary to further the most compelling state interest. ( Carroll v. United States, 267 U.S. 132, 153-154 [69 L.Ed. 543, 551-552, 45 S.Ct. 280]; People v. Superior Court ( Kiefer) 3 Cal.3d 807, 815 [ 91 Cal.Rptr. 729, 478 P.2d 449]; People v. Horton, 14 Cal.App.3d 930, 933-934 [ 92 Cal.Rptr. 666]; Wirin v. Horrall, 85 Cal.App.2d 497, 501 [ 193 P.2d 470].) And the regulations must be narrowly circumscribed in order to withstand a constitutional challenge for overbreadth and vagueness. ( In re Hoffman, 67 Cal.2d 845, 852-853 [ 64 Cal.Rptr. 97, 934 P.2d 353]; Ames v. City of Hermosa Beach, 16 Cal.App.3d 146, 151-152 [ 93 Cal.Rptr. 786]; People v. Horton, supra; Mandel v. Municipal Court, 276 Cal.App.2d 649, 657-663 [ 81 Cal.Rptr. 173].)

(8) Mere presence on the street during the prohibited hours cannot constitute "loitering" within the meaning of penal statutes or police regulations. ( Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 163 [31 L.Ed.2d 110, 116, 92 S.Ct. 839].) As a proscribed criminal conduct, the word "loiter" has been held to connote "lingering in the designated places for the purpose of committing a crime as opportunity may be discovered." ( In re Cregler, 56 Cal.2d 308, 312 [ 14 Cal.Rptr. 289, 363 P.2d 305]; People v. Caylor, 6 Cal.App.3d 51, 56 [ 85 Cal.Rptr. 497]; see also In re Hoffman, supra, 67 Cal.2d 845, 853.) In sustaining an ordinance making it unlawful for a person to roam or be upon a public street during certain hours "without having and disclosing a lawful purpose," the Oregon Supreme Court held that a person "must be deemed innocent unless his voluntary conduct overcomes the apparent and presumed innocence of his movements by disclosing a purpose to violate some law other than the ordinance in question." ( City of Portland v. Goodwin, 187 Or. 409, 431 [ 210 P.2d 577, 586] (opn. denying rehg.).)

In defining the elements necessary to sustain a conviction for loitering under subdivision (e) of Penal Code, section 647, it has been held that the prosecution must establish: "(1) that the accused was loitering or wandering without apparent reason or business; (2) that, although requested by an officer, he refused to identify himself and account for his presence, and (3) that public safety considerations reasonably indicated a necessity for the defendant's identification." ( People v. Caylor, supra, 6 Cal.App.3d 51, 56; People v. Bruno, 211 Cal.App.2d Supp. 855, 859 [27 Cal.Rptr. 458].)

As pertinent, Penal Code, section 647, provides:
"Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor:
". . . . . . . . . . . . . . . . .
"(e) Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification."

Penal Code, section 647, subdivision (e), was designed and drafted in an attempt to avoid the challenge of vagueness and to provide a reasonable formula for the accommodation of the legitimate interest of the state in crime prevention and the right of a citizen to be free from arbitrary or dictatorial police intrusion into his affairs. (22 Assem. Interim Com. Report No. 1, pp. 14-18; see People v. Weger, 251 Cal.App.2d 584, 590-591 [ 59 Cal.Rptr. 661]; People v. Bruno, supra, 211 Cal.App.2d Supp. 855, 859-860.) While the curfew regulations promulgated by the mayor in the instant case did not define the proscribed conduct of loitering with the specificity of Penal Code, section 647, subdivision (e), the regulation must, in order to avoid the challenge for vagueness, be interpreted as requiring proof of the essential elements required for conviction of loitering under the Penal Code section.

The constitutionality of subdivision (e) of Penal Code, section 647, was upheld in People v. Weger, 251 Cal.App.2d 584 [ 59 Cal.Rptr. 661]. Whether that decision can be reconciled with the recent decision of the United States Supreme Court in Papachristou v. City of Jacksonville, supra, 405 U.S. 156, striking down a Jacksonville vagrancy ordinance is a question we need not and do not reach in the instant case.

Admittedly, the issue is not whether the facts known to the officer would have been sufficient to support a conviction for loitering; the question is whether the officer had reasonable cause to believe that the offense was being committed in his presence. (Pen. Code, § 836.5, subd. (a).) (9) But "the test for determining whether reasonable cause exists for an arrest is objective and not dependent upon the arresting officer's subjective good faith. . . ." ( People v. Superior Court, 15 Cal.App.3d 146, 152 [ 92 Cal.Rptr. 916].)

(6b) Turning to the facts of the instant case, assuming that the officer reasonably believed that considerations of public safety indicated a necessity for temporary detention for investigation, there is nothing in the record to indicate defendant either refused to identify himself or to account for his presence. The record is devoid of any inquiry by the officer other than his initial question as to what defendant was doing in the area. Defendant stated that he was "going home," and that his home was on Ramona Street. The officer conceded that defendant was walking in the proper direction to reach Ramona Street. Defendant's response can hardly be characterized as "evasive" or "suspicious." The officer testified the answer was suspicious because "going home" was the "common answer that we received from 95% of the people we stopped and talked to." But there was no attempt on the part of the prosecution to show that like responses by the 95 percent of the people the officer had talked to turned out to be false. Moreover, even if it was the usual response and was usually false, defendant ought not to suffer the consequences of others' false responses. To deprive one of his freedom on such flimsy evidence smacks of totalitarianism; it hardly comports with our commitment to the concept of individual justice. If the officer felt the answer was suspect, he should have questioned defendant further to ascertain the truthfulness of the response. This he neglected to do. Without further inquiry, he ordered defendant to "hand me what you had in your hand."

In a further attempt to "articulate" his reasons for believing defendant was "loitering" in violation of the curfew ordinance, the officer alluded to the fact that defendant was walking on the lawns of the residences rather than on the "sidewalks through the area." However, the record fails to show just how close to the residences defendant was walking, or even whether there was a sidewalk on that side of the street. While the fact that defendant was walking across lawns, coupled with the lateness of the hour, may have justified an investigation, those facts alone did not provide probable cause to arrest for "loitering." One of the essential elements of the offense is unexplained presence in the area. Evidence of that element was entirely lacking in the instant case.

In People v. Caylor, supra, 6 Cal.App.3d 51, defendant suddenly appeared "out of nowhere," in a dark residential area at 11:30 p.m. where there had been numerous complaints of prowlers and burglaries. The officers stopped defendant and asked him for his identity and his reason for being in the neighborhood. After the officers asked him six, or more, times for his name and some identification, defendant finally said, after looking surreptiously through a billfold, that he had none on him and the officers would have to take him to his "pad" if they wanted to find out about him. He refused to give his address or provide a rational explanation for his presence in the area even though he was given ample opportunity to do so. Other cases in which probable cause to arrest for loitering was found to exist reveal similar evidence of persons being in a suspect area at a late hour coupled with flight, furtive action, or evasive responses to requests for identification and explanation for being in the area. ( People v. Superior Court, supra, 15 Cal.App.3d 146, 154.)

The record in the present case discloses no lingering, aimless wandering, peering at houses, furtive or evasive conduct, lack of cooperation, or refusal to answer questions concerning identity or reasons for presence in the area.

(10) "The decision as to whether the facts and circumstances known to the officer at the time he made the arrest were sufficient to lead a man of ordinary care and prudence to believe and conscientiously to entertain a strong suspicion that the law was being violated or had been violated must be made independently by the judicial branch of the government regardless of the characterization or label attributed to the defendant's conduct by the arresting officer." ( People v. Superior Court, supra, 15 Cal.App.3d 146, 152; People v. Boyles, 45 Cal.2d 652, 656 [ 290 P.2d 535].) (6c) The uncontroverted facts in the instant case fail, as a matter of law, to show the existence of probable cause to arrest defendant for loitering in violation of the curfew ordinance. The search cannot be justified as an incident to a valid arrest.

III

(11a) As an alternative ground for justifying the seizure of the contraband, the People rely upon the right of an officer to conduct a limited search for weapons when he has reason to believe that the person detained for investigation under circumstances short of possible cause to arrest is armed or dangerous.

(12) The scope of such a search, however, has been narrowly drawn. ( Irwin v. Superior Court, 1 Cal.3d 423, 428 [ 82 Cal.Rptr. 484, 462 P.2d 12].) Although the officer need not be absolutely certain that the individual is armed, a reasonably prudent man in the circumstances must have been warranted in believing that his safety or that of others was in danger. ( Sibron v. New York, 392 U.S. 40, 65 [20 L.Ed.2d 917, 936, 88 S.Ct. 1889].) (13) And the search so authorized is limited to a patdown of the outer clothing of the suspect for concealed objects which might be used as an instrument of assault. "Unless the officer feels an object which a prudent man could believe was an object usable as an instrument of assault, the officer may not remove the object from the inside of the suspect's clothing, require the suspect to take the object out of his pocket, or demand that the suspect empty his pockets. If the officer obtains contraband from the suspect's clothing, the trial court, in order to justify the search and the introduction of the fruits of the search into evidence, must find that the object could have felt like an object usable as an instrument of assault. (See Sibron v. New York, supra, 392 U.S. 40, 64-66 [20 L.Ed.2d 917, 935-936]; People v. Britton, supra, 264 Cal.App.2d 711, 717 [ 70 Cal.Rptr. 586].) A box of matches, a plastic pouch, a pack of cigarettes, a wrapped sandwich, a container of pills, a wallet, coins, folded papers, and many other small items usually carried in an individual's pockets do not ordinarily feel like weapons. A more intensive or broad search `violates the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable instrusions [ sic] on the part of all government agents.' ( Sibron v. New York, supra, 392 U.S. 40, 65-66 [20 L.Ed.2d 917, 936].)" ( People v. Mosher, 1 Cal.3d 379, 394 [ 82 Cal.Rptr. 379, 461 P.2d 659].)

(11b) In the instant case, there was a paucity of evidence from which a prudent man could reasonably have believed that defendant was armed or dangerous. Officer Lingren consistently described the item defendant was seen to place in his pocket as being "small"; he did not testify he believed the object to be a weapon but merely that it "could have possibly been a rock" or that the object "might have been a weapon; possibly been a weapon." But even assuming that out of an abundance of caution the officers were justified in taking precautions against the possibility that defendant was armed, all that was authorized was a patdown search. If they then felt an object which a prudent person could believe was an object usable as an instrument of assault, they could have removed it or requested defendant to do so. In the present case, the officers did not conduct a patdown; they simply demanded that defendant hand over the object he had placed in his pocket. In so doing they exceeded the permissible scope of a search for weapons incident to a detention for investigation.

It is suggested that under the circumstances the officers were excused from conducting the traditional limited patdown because to approach defendant under the explosive "riot" situation might have endangered the lives of the the officers. However, there was no evidence of rioting or violence that night, either in the area where defendant was arrested or elsewhere in the city. Moreover, the officers were not confronted with a menacing crowd. All we have is a lone man standing in a police spotlight surrounded by four officers armed with shotguns and carbines. There was no factual justification for excusing a patdown. If a patdown had been conducted, it is not likely that the small "container of pills" would have felt like a weapon. (See People v. Mosher, supra, 1 Cal.3d 379, 394.)

The circumstances of People v. Fry, 271 Cal.App.2d 350 [ 76 Cal.Rptr. 718], are distinguishable. In that case the officer saw an oblong bulge in the suspect's left front pants pocket which looked like a large knife. When the officer asked what he had in his pocket, the suspect replied it was a "knife" and voluntarily removed a 4-inch folding blade knife. The reviewing court held that the evidence supported the alternative conclusions that defendant either voluntarily produced the object or did so in response to the officer's request but that in either case the action of the officer was proper. The court reasoned that even a cursory patdown would have revealed that the object was a knife.

We conclude that the seizure of the evidence which formed the basis for defendant's conviction was invalid. While the state of emergency stemming from the race riots may have justified the imposition of the curfew ordinance and called for extra vigilance on the part of the officers, it did not abrogate a citizen's Fourth Amendment right to be free from unreasonable police intrusion. Excessive police zeal under such circumstances can only tend to exacerbate rather than ease racial tensions.

The order granting probation is reversed.

Gabbert, J., concurred.