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Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Mark Lee HARRIS, Defendant and Appellant.

Crim. 24550.

Decided: December 12, 1974

Joseph Shemaria, Los Angeles, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Gary R. Hahn, Deputy Attys. Gen., for plaintiff and respondent.

Defendant Mark Lee Harris was charged with burglary. His motion to suppress evidence (Pen.Code, § 1538.5) was denied. After a jury trial, he was found guilty of first-degree burglary, and placed on probation. On this appeal the only issue is whether a motion to suppress should have been granted.1


The victims, Mr. and Mrs. Marx, lived at 449 South McCadden Place, Los Angeles. They left their house one Saturday evening at 7 p. m. and returned at about 10:15 p. m. Marx parked their car in the driveway. As they approached the front door they heard a noise inside the house. Since the Marxes lived alone, they got back in their car, backed out of the driveway, and drove into a neighbor's house. While their car was in the driveway, they saw a car drive up in front of their house. The driver got out and wiped his front and rear windows. Mr. Marx backed out of the neighbor's driveway, pulled in behind the unknown car, and wrote down the license plate number.

At this point, the other driver ‘took off.’ The police arrived at about 10:30 p. m. The Marxes gave the police a description of the person they had seen as well as the license plate number of his car.

Among the officers to arrive were Ryan and Snee. The officer in charge told them that a suspect had been seen at the residence, and that a second suspect was possibly inside the house; but when it was searched no suspect was found inside. The officer in charge told Ryan and Snee that the victims had observed a suspect, described as a male Caucasian, dark hair, moustache, about 5′8″ tall, about 150 pounds and wearing a light cardigan sweater and dark pants.2 The officer in charge also told Ryan and Snee that he had heard dogs barking north of the burglarized house, and they were barking at somewhat of a succession northbound, as if the suspect were headed in that direction.

Officers Ryan and Snee headed northbound on Highland, a street that runs parallel to and a block west of McCadden. They drove two blocks north to Third Street. The area is solely residential. It was about 11 p. m. They observed defendant and one Paul Steinberg3 crossing Highland, westbound on Third Street, away from McCadden Place.

The physical description of defendant approximated that furnished the officers. Defendant was wearing a light cardigan sweater and dark clothing, possibly the same clothing as the burglary suspect.

Each suspect was interviewed separately. Defendant said he was looking for a girl named Donna who lived on McCadden Place. Steinberg said they had taken a bus to Highland and Wilshire—several blocks south of Third—and had been walking from that location, looking for a restaurant. Officer Ryan knew there was a restaurant at Wilshire and Citrus, about 300 feet west of Highland. The suspects appeared nervous. The officers were suspicious because of the conflicting statements, the restaurant story, and the suspects' nervousness.

Defendant and Steinberg were searched, handcuffed and placed in the back of the police car.4 They were taken back to the Marx residence, for possible identification by the Marxes.

Neither Mr. nor Mrs. Marx could identify either suspect. In fact, at the preliminary hearing Mr. Marx positively testified that the man he had seen outside his home was not in the courtroom.

Meantime, other officers investigating at the scene had determined that someone had entered the house through the service porch window by climbing on top of a dusty teacart. A footprint of a ripple-soled shoe was observed in the dust. The words ‘Neoprine’ and ‘Oil Resistant’ were visible. A police sergeant looked at Harris' shoes and saw that they were rippled-soled, similar in appearance to the shoe which had left its print in the dust. A police officer removed defendant's shoe, took it to the teacart and visually matched it up with the shoeprint in the dust.

Defendant and his companion were then formally placed under arrest.

The burglar or burglars had had time to take only some change and a folded $10 bill and $1 silver certificate that had been lying in a drawer.

The evidence at the trial on which defendant was convicted was, first, testimony about the suspect's and defendant's descriptions; second, that when arrested a $10 bill was removed from Steinberg's wallet and a $1 silver certificate from defendant's wallet; and, third, that defendant's shoeprint matched the shoeprint found on the teacart.


We need not spend much time on defendant's contention that the initial detention was illegal. The case he cites, People v. Mickelson, 59 Cal.2d 448, 450–451, 30 Cal.Rptr. 18, 380 P.2d 658, and several hundred following, make clear that the initial detention was reasonable. The problem is what followed. It will be recalled that in Mickelson the police had a report of a 2 a. m. market robbery. The robber was identified as a fairly tall white man of large build, with dark hair, wearing a red sweater and armed with a .45 automatic. Shortly after starting the search for the suspect, an officer saw a station wagon which defendant's companion, one Zauzig, was driving and in which defendant was a passenger. Zauzig appeared to be a large white man with dark hair, wearing a red sweater or jacket. The station wagon made several suspicious changes of direction and was eventually stopped. It was then searched and the fruits of the robbery were discovered. The occupants were arrested. In suppressing the fruits of the search, the court held that it was entirely reasonable to stop the station wagon for investigation and to take reasonable precautions for the officer's safety. He did not, however, have probable cause to arrest Zauzig. ‘Instead of interrogating Zauzig and defendant with respect to the robbery or requesting them to accompany the officers the few blocks to the market for possible identification, the officer elected to rummage through closed baggage found in the car in the hope of turning up evidence that might connect Zauzig with the robbery.’ (Id. p. 454, 30 Cal.Rptr. at p. 22, 380 P.2d at p. 662. Italics added.)

In Mickelson the Supreme Court did not say what, if anything, the police could have done had Zauzig and his companion declined the request to accompany the officers back to the market for identification. In this case the People want us to hold, in effect, that such a request would have been nothing but an unnecessary public relations gesture: for if anything is clear from the record before us, it is that defendant was compelled to accompany the officers back to the Marx residence, after his person had been searched with some thoroughness at the scene of his initial confrontation with the police. During the trip back, he was in handcuffs. Although the People have never claimed that the officers had a right to arrest defendant, that is precisely what they did.5

The legal premise on which the People urge affirmance is that a suspect, purportedly not under arrest but detained only for investigation, may be forcibly transported from the location where the investigatory detention took place and brought, handcuffed, to the scene for whatever aid his person and belongings may be in the investigation of a crime. People v. Gonsoulin, 19 Cal.App.3d 270, 96 Cal.Rptr. 548 is to the contrary. It simply and correctly characterizes a similar transportation—though purportedly consented to—as an arrest. As noted, however, in this case the prosecution went to some pains not to claim that an arrest was justified or took place.

The constitutional basis for an enforced detention, short of an arrest, was explained in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. It will be recalled that there the Supreme Court ‘emphatically’ rejected the notion that Fourth Amendment considerations are irrelevant to investigatory detentions. ‘It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.' (Id. p. 16, 88 S.Ct. p. 1877.) The court then, after carefully analyzing the facts of the case before it, decided that the police were entitled to restrict the petitioner's freedom to go wherever he pleased and to force a temporary confrontation for the purpose of investigating the suspicious situation which they had observed. It then further decided that the officers had the right to take certain limited steps for their own protection during that confrontation. This subsidiary problem—the frisk—is not what concerns us here. What we are dealing with is, rather, the People's assertion that when the on-the-spot investigation proves fruitless, the police, though lacking a right to make an arrest, may nevertheless change the venue of the confrontation to a point several blocks away.6

To justify what took place the People rely on People v. Watson, 12 Cal.App.3d 130, 90 Cal.Rptr. 483. Watson is not in point. It is a routine case involving a justifiable detention, followed by a permissible on-the-scene frisk which led to the discovery of contraband.

The People also cite People v. Shoemaker, supra, 16 Cal.App.3d 316, 93 Cal.Rptr. 921, where the police were held to have reasonably detained the defendant in front of a bar where he was sitting on the curb. At the request of the police, the defendant then voluntarily led them to an automobile in which, according to defendant's story, he had arrived at the bar. When the party arrived at the car, which was about 75 feet from the initial point of confrontation, defendant started to shed marijuana. The court held that this voluntary act was not a response to improper police conduct.

Shoemaker is obviously not in point. There is a world of difference between a suspect voluntarily leading officers to an automobile 75 feet away and his being transported involuntarily, in handcuffs, for several blocks.

Finally, the People refer us to such cases as People v. Rodriguez, 10 Cal.App.3d 18, 88 Cal.Rptr. 789, which, in spite of the so-called Wade-Gilbert rule and People v. Fowler, 1 Cal.3d 335, 344, 82 Cal.Rptr. 363, 461 P.2d 643, find no constitutional violation in an on-the-spot identification of the suspect by the victim, after the suspect has been arrested some distance from the scene of the crime. (See also, People v. Williams, 6 Cal.App.3d 274, 278, 85 Cal.Rptr. 675; People v. Burns, 270 Cal.App.2d 238, 246, 75 Cal.Rptr. 688.) This argument, too, misses the point. In the cases relied on by the People, the defendant was legally arrested. The question discussed was the legality of the confrontation with the victim at the scene of the crime, during which the arrestee was not represented by counsel and had not waived his right to such representation. Obviously, that is not the problem here where the attempted identification of defendant by Marx was negative.

Thus, there simply was no legal justification for the police to have defendant in their custody at the time when it became apparent that the physical characteristics of the shoes he wore became highly relevant to the investigation of the burglary. The case is thus on all fours with Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, where the United States Supreme Court suppressed evidence of fingerprints obtained from the suspect during an illegal custody. Defendant's formal arrest based on the comparison between the shoe print left on the premises and the shoes he was wearing was therefore illegal, as was all other physical evidence—such as the money in his possession—that was obtained as a result of the arrest. (See also, People v. Moore, 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800; People v. Sesslin, 68 Cal.2d 418, 426, 67 Cal.Rptr. 409, 439 P.2d 321; People v. Gardner, 266 Cal.App.2d 19, 22, 71 Cal.Rptr. 568; People v. Gibson, 220 Cal.App.2d 15, 26, 33 Cal.Rptr. 775.)

The judgment is reversed.


1.  By stipulation the motion was based on the transcript of the preliminary hearing and additional testimony presented at the hearing held pursuant to Penal Code section 1538.5.

2.  Mr. Marx testified that the man he saw was wearing a dark sweater and that he so described him to the police. How it became a light cardigan is obscure.

3.  The case against Steinberg was dismissed at the preliminary hearing.

4.  Specifically, Harris' shoes were removed by an officer at Third and Highland to determine whether there was money inside them. Officer Snee was unable to recall whether Harris was permitted to put them back on before the group's arrival at the Marx residence.

5.  In fact, in the trial court the People went out of their way to prove that no arrest was made until defendant's shoes were compared with the imprint left by the burglar. When one of the officers was asked whether defendant and his comparion were arrested at Third and Highland, he answered: ‘We brought the individuals back to the location.’ The other officer, when asked: ‘Were they under arrest at that time?’ answered, ‘No. They were being detained.’ He would not even admit that the suspects were ‘in custody.’It is elementary that we may not support the trial court's refusal to suppress ‘on theories . . . invented for the consumption of reviewing courts.’ (People v. Superior Court (Simon), 7 Cal.3d 186, 198, 101 Cal.Rptr. 837, 846, 496 P.2d 1205, 1214; cf. People v. Miller, 7 Cal.3d 219, 226, 101 Cal.Rptr. 860, 496 P.2d 1228; Agar v. Superior Court, 21 Cal.App.3d 24, 28–29, 98 Cal.Rptr. 148.)The People's reluctance to urge that an arrest at Third and Highland would have been justified is understandable. From the very beginning of the investigation it was questionable whether the person whom Mr. Marx observed had had anything to do with the burglary. As it turned out, he had not. Some explanation of the change of description from a dark sweater to a light cardigan would have been in order. There is the problem that defendant was on foot, not in the car Marx had observed. The officers' impression that the suspects appeared nervous, means practically nothing. (People v. Moore, 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800.) Their stories were not really conflicting and the mere fact that there was a restaurant about 300 feet west from where the suspects said they had gotten off the bus does not mean that they knew of its existence.

6.  With respect to the fact that the defendant was handcuffed during the trip back to the Marx home, the People point to evidence that handcuffing is a standard procedure for felony suspects who enter a police vehicle and that it is done for the purpose of the officer's safety. We certainly have no quarrel with a reasonable police procedure designed to protect the safety and lives of officers while transporting a suspect or prisoner. The argument, however, misses the point which is whether or not the officers had the right to transport defendant in the first place.

KAUS, Presiding Justice.


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