COTTON v. PEOPLE

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Court of Appeal, Second District, Division 1, California.

Carlo LaVante COTTON, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, The PEOPLE of the State of California, Real Party in Interest.

Civ. 58294.

Decided: June 11, 1980

Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, Dale C. Frailey and John Hamilton Scott, Deputy Public Defenders, for petitioner. No appearance, for respondent. John K. Van de Kamp, Dist. Atty., Donald J. Kaplan and Sterling S. Suga, Deputy Dist. Attys., for real party in interest.

Carlo LaVante Cotton petitioned this court for a writ of mandate pursuant to Penal Code section 1538.5, subdivision (i), following the denial of his motion to suppress evidence in the superior court.

Petitioner is charged in an information filed September 28, 1979, with a violation of Penal Code section 187 (murder) in count 1 and with a violation of Penal Code section 211 (robbery) in count 2.

On December 10, 1979, petitioner moved to suppress evidence pursuant to Penal Code section 1538.5, and a hearing on the motion was conducted on December 13, 1979.

At the hearing on petitioner's motion, it was stipulated that the court could read and consider the transcripts of petitioner's preliminary hearing in this matter as if the witnesses who testified therein were called, sworn, and testified at the hearing in the superior court with the same force and effect.

It was further stipulated at the suppression-of-evidence hearing that the trial court might hear and consider additional testimony as offered by either side, and both petitioner and the prosecution presented such additional testimony.

Petitioner maintains that the evidence adduced at the hearing established that he was unlawfully arrested by a Pasadena City Police Officer and a San Marino City Police Agent, and that as a result of the illegal arrest petitioner made certain inculpatory statements and assisted the police in obtaining certain items of physical evidence which petitioner anticipates will be offered as evidence by the People at his forthcoming trial. Because he believes respondent court erred in denying his motion to suppress such evidence, this petition for writ of mandate seeks an order directing said court to make a new and different order granting his section 1538.5 motion.

I

STATEMENT OF FACTS

Petitioner's motion to suppress evidence under Penal Code section 1538.5 was submitted upon the transcript of petitioner's preliminary hearing held on September 12 and 13, 1979, and upon additional testimony offered by petitioner and by the prosecution. The facts as shown in the preliminary hearing transcript are as follows:

On Thursday, August 9, 1979, shortly before 3 p. m., two men arrived at the Shoemaker Arco Service Station at 840 Huntington Drive, in San Marino, California. They asked the owner, Mr. Maurice Shoemaker, whether they could use the rest room, and they were told it was open to the public. Although Shoemaker did not look closely at the two people, he did observe that they were male and of a “dark” race.

Around the same time of day Mr. George Lambakis, a 15-year-old employee of Mr. Shoemaker, entered the men's room at Shoemaker Arco Service to check and clean the room. He saw two men in the room putting nylon stockings over their faces. Although Lambakis did not get a good look at the men, he did notice that they were both black and one had something below his nose which may have been a mustache. Mr. Lambakis felt something stabbing in his back, and one of the men pointed a gun at his head. The men then asked Lambakis how many people were inside the gas station, and questioned him regarding the location of the safe and as to who knew the combination of the safe. Mr. Lambakis answered these questions as best he could, and was then taken into the back of the station. The two men shoved Lambakis and a co-worker named Ray into a storeroom, and told Ray to call the manager.

Ray called for Mr. Shoemaker, who went to the stockroom where he was confronted by a man in a stocking mask. The man was about five foot six inches to five foot eight inches in height, was black, and was holding a gun on Shoemaker. The man told Mr. Shoemaker to go to the safe. As Shoemaker began to walk towards his office, where the safe was located, he heard a gun go off behind him. Shoemaker and the armed man went to the office where $265.50 was removed from the safe and $1,700 was taken from Mr. Shoemaker's person.

In the storeroom, after hearing Ray call to Shoemaker, Lambakis heard a pop-like sound. He then saw Mr. Julius Goodson, another employee at the station, pushed towards him. Mr. Goodson fell to the ground holding his side or his leg. Mr. Lambakis was then told to lay on the floor and put his hands on his head.

After Mr. Shoemaker gave the money to the man with him in the office, he was taken to the storeroom and told to take his pants off. He did so, and the man slammed the door and ran. Shoemaker saw Goodson lying on the floor looking very pale. He later learned that Mr. Goodson had died. In an autopsy performed on August 11, 1979, it was determined that Goodson had died as the result of a gunshot wound to the chest.

Neither Mr. Shoemaker nor Mr. Lambakis could identify either of the two men seen on August 9, 1979. Shoemaker did not hear or see any person other than the two men he described who appeared to be involved in the robbery, nor did he hear or see any automobile which appeared to be connected with the incident. However, after the incident an Aspen soda pop can was found on top of the paper towel dispenser in the men's room. Mr. Lambakis had not seen this can in the bathroom when he had checked it at about 10 a. m. and about noon on August 9. Neither Mr. Lambakis nor Mr. Shoemaker had seen any employee drinking out of that type of can on August 9.

Mr. Shoemaker called the police shortly after 3 p. m. He was told that the call went in at 3:08. There had been some delay in making the call, due to a phone being ripped out and confusion regarding the police telephone number. On August 9, 1979, at 2:56 p. m., Robert Waters was engaged in his employment as a bus driver for the Southern California Rapid Transit District. Mr. Waters recalled the exact time as he had checked his watch because he was running ahead of schedule. At that time he was driving eastbound on Huntington Drive at the intersection of St. Albans in San Marino, California. This intersection is approximately 0.49 miles east of the Shoemaker Arco Service Station.

Mr. Waters was stopped at a red light. When it turned green, and as he started to drive his bus forward, he saw a car headed southbound on St. Albans pull part way out into the intersection against the red light. He noticed that the car was of a dark color, and had damage to the left front fender. The car turned onto Huntington Drive and proceeded eastbound (the same direction as the bus was traveling). At that time, Mr. Waters noticed that there were three young black males in the car, two in the front seat and one in the back. The person in the front seat was changing his shirt. Waters noted that the license number on the car was “COTTON 3.”

As the bus and the automobile drove eastbound towards Virginia Road, Mr. Waters saw two San Marino police vehicles driving westbound on Huntington Drive with their sirens on. Waters also saw other automobiles on the road, and at the intersections. The last he saw of the automobile in question, it was waiting to turn northbound on Virginia Road. At about 9 p. m. on August 9, 1979, Mr. Waters heard a television news report of a shooting in San Marino at approximately the time he had seen the automobile. He called the San Marino Police Department and spoke to Captain Yeske. Waters told the police that he had seen a dark colored sports-type car with damage to the left front fender, license number “COTTON 3.” He gave no further description of the occupants other than that there were three black males, one of whom was changing a shirt.

At approximately 11:30 p. m. on August 9, 1979, Agent Hal D. Havens of the San Marino Police Department received the information provided by Mr. Waters. Agent Havens stated that the information he received was that a bus driver had seen a black vehicle, possibly a Camaro or Firebird, with a dent in the left front fender, at the intersection of St. Albans and Huntington Drive, which proceeded eastbound on Huntington Drive to Virginia. The car contained three male blacks, one and possibly two of whom were changing clothes inside. The license plate was “COTTON 3.” Havens then caused a check to be made with the California Department of Motor Vehicles regarding the registration of the vehicle.

The DMV informed Agent Havens that license plate “COTTON 3” was registered to a 1978 Datsun owned by Allen Cotton in Richmond, California, in the San Francisco Bay area. A driver's license check revealed that Allen Cotton was a male Negro, 24 years old, of average height and weight. A record check showed that Allen Cotton had been convicted of burglary, and had been recently paroled from federal custody at Leavenworth Prison, Leavenworth, Kansas. Havens obtained Allen Cotton's address, but did not check with the Richmond police to determine whether Cotton was in that area, nor did he check whether or not the Datsun owned by Cotton was a sports car or of dark color.

On August 10, 1979, in the morning hours, a telephone conversation took place between Agent Havens and Pasadena City Police Officer Marylyn Diaz. Agent Havens told Officer Diaz about the car that had been seen in the area of the robbery and homicide of the day before, and gave her the license plate number “COTON 3.” Officer Diaz checked with another Pasadena police officer, who advised her that he recalled a license number “COTON 3” as being registered to a car in the Pasadena area. Officer Diaz then ran that number through her records bureau, which provided her with a printout showing such a license number registered to a vehicle owned by a Kathryn or Kathline Cotton, living at 1723 Mentone Avenue in Pasadena. Officer Diaz also learned that Carlo Cotton had been previously contacted by police.

Officer Diaz telephoned Agent Havens and told him of the vehicle with license number “COTON 3” and provided him with the Mentone Avenue address. Agent Havens then told Officer Diaz that the vehicle had been seen in the area of the robbery-homicide. He further told her that there was no probable cause to go to anyone's house, but that if the vehicle was seen on the street he wanted it stopped and the driver or occupants detained for him. Havens wished to “interview the driver,” whom he considered a “possible suspect.” Havens testified that his purpose in doing so was twofold: elimination of an innocent person or investigation of a possible suspect.

Officer Diaz made a radio broadcast to all the field units to stop and detain the “COTON 3” automobile, as it was possibly involved in the San Marino robbery-homicide. She then went to the address to which she had been informed the car was registered, accompanied by Pasadena Officer Dave Foster. She arrived at the address shortly after 9 a. m. on August 10, 1979. Seeing an automobile with license plate “COTON 3” in the driveway, Diaz parked the police vehicle and began a surveillance of that car. She intended to place anyone she saw driving the car into custody. In about 15 minutes, somebody got into the car and drove it southbound on Mentone. Absent an arrest or search warrant, Officer Diaz stopped the vehicle.

Officer Diaz ordered the driver (and sole occupant of the vehicle) to pull over to the curb, either by siren, lights, or horn. She got out of her car with her pistol drawn and pointed at the driver. Officer Foster also got out of the police car, and pointed a shotgun at the driver. The driver was ordered to get out of the car and walk to a parkway area. He was then ordered to lie down with his hands behind him. The driver did so, and was handcuffed by Officer Diaz. During this proceeding, the driver was held at gunpoint by either Officer Diaz or Officer Foster.

Diaz then searched the man, who was found not to be armed. Officer Diaz next asked the man who he was; he stated that he was Carlo Cotton. Officer Diaz obtained his driver's license which verified that information. Diaz identified Carlo Cotton as the defendant in court (petitioner herein).

Officer Diaz then informed petitioner that he was not under arrest, but was being detained for investigation of a robbery which had occurred in San Marino. She told him that a San Marino officer would come to talk with him, and that the San Marino police would decide whether or not to release him as she had very little information about the actual crime. Petitioner was not free to leave. Petitioner was allowed to sit on the curb, and later in his car; but he was kept in handcuffs and was in Officer Diaz' custody until the arrival of Agent Havens and Captain Yeske. The San Marino police officers arrived approximately 21 minutes after petitioner was placed into custody.

While holding petitioner in her custody, and absent any “Miranda” warning, Officer Diaz asked petitioner if he had been driving in San Marino the day before. Petitioner stated he had driving through San Marino on his way to East Los Angeles College. Officer Diaz also searched petitioner's car for weapons before he was allowed to sit in the car. Nothing was apparently discovered during this search.

Shortly after petitioner was handcuffed, Officer Diaz spoke to her police dispatcher via radio and requested the dispatcher to call the San Marino Police Department to inform Agent Havens that she had stopped the driver of the “COTON 3” automobile. Agent Havens and Captain Yeske arrived in about 21 minutes. Havens was met by Officer Diaz who handed him petitioner's driver's license. Captain Yeske told Agent Havens that Officer Diaz had told him that she had told petitioner he was stopped because his car had been seen in San Marino and that she had asked petitioner if he was there and why he was there.

Agent Havens then approached petitioner and, without advising petitioner of his “Miranda” rights, began to question him. Havens asked petitioner if he was Carlo Cotton and if the car was his. Petitioner responded that it was his car, although it was registered to his mother. Agent Havens told petitioner that his car had been seen in San Marino the previous day. Petitioner replied that he had been in San Marino in the afternoon, that he had driven south on Los Robles to Huntington Drive, and on Huntington Drive to a market. Havens asked if somebody was with petitioner, and petitioner said he was with a friend named Jim. Havens asked petitioner what he was doing in the area and why he was driving around. Petitioner replied that he was just driving around looking at houses, and had gone to a market and bought Aspen soda pop. Agent Havens knew that an Aspen soda pop can was found in the men's room at Shoemaker Arco Service, and he told petitioner that he was under arrest for suspicion of robbery and homicide.

Following this arrest, petitioner was taken to the San Marino Police Department, where he was formally advised of his “Miranda” rights. Thereafter he made statements tending to show his involvement in the August 9 robbery-homicide. He also assisted the police in obtaining items of evidence from his automobile and from his home.

The additional facts presented at the superior court hearing and the findings of the trial court in denying the motion are as follows:

Pasadena Police Officer Marylyn Diaz testified that the area in which petitioner resided was populated primarily by members of the black race. When she went to the Mentone address to investigate regarding the “COTON 3” vehicle, she knew Carlo Cotton by name and knew that he was a young black man. However, she intended to stop any person she saw driving that automobile.

San Marino Police Agent Hal Havens testified that no blacks live within the City of San Marino. But he noted it is not unusual to see blacks driving through the city on Huntington Drive, which is a major six-lane boulevard, with a twenty-foot median divider. At the intersection of St. Albans and Huntington Drive, the traffic control signals show red in all four directions for a period of time before they turn to green.

Carlo Cotton, petitioner, testified that after he was taken into custody by Officer Diaz he asked whether he could leave to register in school. He was told that he was not free to leave, but that he had to wait for the San Marino police officers.

Mr. Don Terry testified that he had personally measured the distance between the Shoemaker Arco Service Station and the intersection of Huntington Drive and St. Albans. The distance is 0.49 miles.

II

IT WAS IMPROPER FOR OFFICER DIAZ AND AGENT HAVENS TO HOLD PETITIONER IN CUSTODY FOR THE PURPOSE OF QUESTIONING HIM UNLESS THEY DID SO WITH PROBABLE CAUSE TO BELIEVE HE HAD COMMITTED A CRIME

Petitioner was directed to stop by Officer Diaz, was ordered out of his car at gunpoint, was handcuffed and searched, and was thereafter held in Officer Diaz' custody for approximately 20 minutes awaiting the arrival of Agent Havens. After Havens arrived, petitioner remained in custody while he was questioned by Havens. At the preliminary hearing and in the trial court the prosecution argued that this activity constituted a detention of petitioner, but not an arrest, and that such a detention could be made without probable cause. This contention cannot be sustained.

“An arrest is taking a person into custody, in a case and in the manner authorized by law.” (Pen. Code § 834.) “An arrest is made by an actual restraint of the person, or by submission to the custody of an officer.” (Pen. Code § 835.) “The essential elements of an arrest are: (1) taking a person into custody; (2) actual restraint of the person or his submission to custody.” (People v. Hatcher, 2 Cal.App.3d 71, 75, 82 Cal.Rptr. 323, 325.) “[C]ustody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived.” (People v. Arnold, 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 121, 426 P.2d 515, 521.) “Custody is an objective condition, and is not solely dependent upon the subjective intent of the interrogator to arrest the suspect.” (People v. Parker, 85 Cal.App.3d 439, 443, 148 Cal.Rptr. 513, 515; People v. Herdan, 42 Cal.App.3d 300, 306, 116 Cal.Rptr. 641.) The fact that police officers have made a formal arrest following an investigation commenced after a suspect has been taken into custody does not dictate the conclusion that the original custody did not itself constitute an arrest. (People v. Freund, 48 Cal.App.3d 49, 55-56, 119 Cal.Rptr. 762.

In the present case it cannot be disputed that petitioner was placed into custody. This was admitted by Officer Diaz. Officer Diaz and Officer Foster held petitioner at gunpoint until he was handcuffed, and thereafter he was not free to leave. This is obviously more than the narrow intrusion permitted under California authority for a temporary restraint of movement incident to an investigation. (Cf. People v. Hatcher, supra, 2 Cal.App.3d at p. 75, 82 Cal.Rptr. 323.) Under all statutory and case authority, this was an arrest. An arrest may not be made without a warrant unless it is made with probable cause to believe that the arrestee has committed a crime. (Pen. Code, § 836, subd. 3; People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577.)

However, even if the police did not “arrest” petitioner when they took him into custody, it is clear that he was being detained in order that the police might question him about the crime that had been committed the day before while he remained in custody. This seems to have been the finding of the trial court, since it concluded that petitioner had been “held for questioning” in connection with its ruling that the police had had probable cause to do so. That petitioner was being detained for custodial interrogation is shown by Agent Havens' testimony—his purpose in having the automobile petitioner was driving stopped by Officer Diaz was to enable Havens to “interview the driver” who was a “possible suspect.” Moreover, Officer Diaz told petitioner that she would not release him until the San Marino officers had “come out to talk with him.”

As was apparently recognized by the trial court, the United Stated Supreme Court has determined that a detention made for the purpose of custodial interrogation, whether or not characterized as an arrest, is subject to the traditional safeguards against illegal arrest. That is, such a detention may not be made without probable cause to believe the detainee has committed a crime. (Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824; cf. Davis v. Mississippi, 394 U.S. 721, 728, 89 S.Ct. 1394, 1398, 22 L.Ed.2d 676; Brown v. Illinois, 422 U.S. 590, 602, 605, 95 S.Ct. 2254, 2261, 2262, 45 L.Ed.2d 416.) Although the detainee in Dunaway was not only detained but then transported to the police station; that does not appear to have been a determinative factor in the court's reasoning. The Supreme Court noted in Dunaway that the exception to the probable cause requirement provided in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, was severely limited, and applied only to a limited, on-the-street frisk for weapons (cf. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612), to an extremely brief detention for very limited questioning (cf. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607). (Dunaway v. New York, supra, 442 U.S. 200, fn. 12, 99 S.Ct. 2248, 60 L.Ed.2d 824).

It is clear from Dunaway that the Supreme Court has concluded that the police must have probable cause to take citizens into custody or to extend such custody beyond the limited exceptions provided in Terry. Inasmuch as petitioner's detention cannot reasonably be characterized as a limited frisk for weapons, nor as a brief detention for limited questioning, his detention falls outside the permissible limits of the Terry exceptions and hence within the perimeters of the Dunaway decision. Thus, whether petitioner had been “arrested” or was merely “detained for questioning,” he was in unlawful custody unless there was probable cause for his detention. California law governing brief investigatory stops is the same as the federal law. (See In re Tony C., 21 Cal.3d 888, 893-895, 148 Cal.Rptr. 366, 582 P.2d 957; United States v. Chamberlin (9th Cir. 1979) 609 F.2d 1318, 1321.)

III

PETITIONER WAS UNLAWFULLY TAKEN INTO CUSTODY BY OFFICER DIAZ WITHOUT PROBABLE CAUSE TO BELIEVE HE HAD COMMITTED A CRIME, AND NO OFFICER INVOLVED IN PETITIONER'S DETENTION ACTUALLY BELIEVED THAT THERE WAS SUCH PROBABLE CAUSE

As has been shown above, whether petitioner's custodial situation is deemed an “arrest” or a “detention,” its scope and extent clearly exceeded the minimal sort of intrusion which Terry v. Ohio, supra, allows to be made without probable cause. Accordingly, unless there was probable cause for Officer Diaz to take petitioner into custody, her actions were unlawful. “Probable cause exists where ‘the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed [by the person to be arrested.]” (Brinegar v. United States, 338 U.S. 160-188, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879.) United States v. Chamberlin, supra.

Officer Diaz acknowledged she knew nothing about this case sufficient for her to arrest or detain petitioner, but did so upon direction of Agent Havens. If Agent Havens could have appropriately taken petitioner into his own custody, then it was proper for him to direct Officer Diaz to do so. (People v. Hunt, 250 Cal.App.2d 311, 314-315, 58 Cal.Rptr. 385; Restani v. Superior Court, 13 Cal.App.3d 189, 195-196, 91 Cal.Rptr. 429).

In the present case it has never been contended by the police or the People that Agent Havens did have probable cause to arrest petitioner, as indeed he did not. Havens admitted that he did not have sufficient information to believe petitioner had been involved in the San Marino robbery. The prosecutor at the preliminary hearing argued that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, did not apply to Havens' initial questioning of petitioner because there was not probable cause to arrest him at that point.

Contrary to the ruling of the trial court, Agent Havens' lack of belief that he had probable cause to arrest petitioner is sufficient alone to show that it was illegal to take petitioner into custody, if the detention effected by Diaz could not be made absent probable cause. It is well established that before any inquiry is made as to the reasonableness of a police officer's belief that he has probable cause to arrest, the officer's subjective belief in the existence of probable cause must be demonstrated. (Mestas v. Superior Court, 7 Cal.3d 537, 542, 102 Cal.Rptr. 729, 498 P.2d 977; Agar v. Superior Court, 21 Cal.App.3d 24, 28-29, 98 Cal.Rptr. 148.) This rule applies to detentions as well as actual arrests. (In re Tony C., 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.) Thus, since petitioner was arrested by Officer Diaz, or at least was detained by her for custodial interrogation, and since neither Officer Diaz nor Agent Havens subjectively believed there was probable cause for petitioner's arrest or detention for custodial interrogation, petitioner was in unlawful custody.

Further, it is clear that the ruling of the trial court that petitioner was taken into custody by Officer Diaz with probable cause was erroneous.

The People rely, in the main, upon People v. Harris, 15 Cal.3d 384, 124 Cal.Rptr. 536, 540 P.2d 632, to justify the detention of petitioner.

In Harris, the officer had reason to believe that a burglar (or burglars) had just left the scene of the crime and were given a description of one of the suspected burglars. The defendants were observed on the street about three blocks away. The officers interviewed each defendant, and the defendants gave conflicting stories as to why they were in the neighborhood. Both appeared nervous. The defendants were searched, handcuffed and placed in back of the police car. They were driven by the police to the scene of the burglary. The owners of the home were unable to identify either defendant but police did find a footprint by the side of the house. The police took one of the defendant's shoes and matched it to the footprint.

The Supreme Court in Harris found that the detention was proper but that the transportation of the defendants to the scene of the crime was improper. As to the detention, the People conceded insufficient probable cause to arrest at the time of initial questioning but did claim that there was sufficient cause for detention. The Supreme Court agreed. “However, in the instant case, the circumstances did disclose a reasonable possibility that defendant and his companion were involved in the burglary. These circumstances included their presence in a residential area at 11 p. m., and the general similarity between defendant's appearance and the Marx' description of one of the suspects, thus meeting the requisite but lesser detention standards of ‘good faith suspicion,’ and ‘rational belief of criminal activity,’ expressed by us in [People v.] Flores [12 Cal.3d 85, 115 Cal.Rptr. 225, 524 P.2d 353].” (15 Cal.3d at p. 389, 124 Cal.Rptr. at p. 539, 540 P.2d at p. 635.)

It appears that the initial detention here far exceeds the procedure employed in Harris. While the police could no doubt order petitioner from his car and pat-down for weapons, the intrusion here was far more substantial. While the police had grounds for detention and questioning here, the procedure used here appears unreasonable given the limited information possessed by police when petitioner was first stopped.

The totality of the information available to Agent Havens at the time petitioner was originally taken into custody was that a robbery-homicide had been committed by two unidentified black men on Huntington Drive in San Marino. Around the same time as this incident and in the same general area, an R.T.D. bus driver saw an automobile with the license “COTTON 3,” in which there were three young black men one of whom was changing his shirt. The car turned off Huntington Drive at Virginia. The automobile license “COTTON 3” belonged to an ex-convict residing in Richmond, California—a one-day drive from San Marino. An automobile with the license number “COTON 3” was registered to a woman in Pasadena. As was admitted by the police officer and by the prosecuting attorney at preliminary hearing, this was clearly not such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that petitioner was guilty of a crime. (People v. Ingle, supra 53 Cal.2d at p. 412, 2 Cal.Rptr. 14, 348 P.2d 577.)

No attempt was made in the trial court to show that petitioner's confession or his assistance in obtaining physical evidence were acquired other than by exploitation of his illegal detention and/or arrest. The mere fact that he was finally advised of his “Miranda” rights does not serve to attenuate the taint of the illegal police conduct. (People v. DeVaughn, 18 Cal.3d 889, 898, 135 Cal.Rptr. 786, 558 P.2d 872.) That being so, petitioner's confession should have been suppressed (People v. Johnson, 70 Cal.2d 541, 553, 75 Cal.Rptr. 401, 450 P.2d 865), and the physical items seized should have also been excluded from evidence. (People v. Superior Court (Zolnay), 15 Cal.3d 729, 734-735, 125 Cal.Rptr. 798, 542 P.2d 1390; People v. Maxwell, 78 Cal.App.3d 124, 133, 144 Cal.Rptr. 95.)

IV

EVEN IF OFFICER DIAZ DID NOT NEED PROBABLE CAUSE IN ORDER TO TAKE PETITIONER INTO CUSTODY, AGENT HAVENS ILLEGALLY ARRESTED PETITIONER WITHOUT PROBABLE CAUSE FOR DOING SO

After interrogating petitioner while he was in custody on the Pasadena street, Agent Havens formally arrested petitioner. Havens did so without probable cause.

The prosecution conceded at the preliminary hearing that Agent Havens did not have probable cause to arrest petitioner before he questioned him. Havens learned little more in questioning petitioner than he already knew. At the time he arrested petitioner he knew that petitioner had been driving an automobile with license number “COTON 3” in San Marino around the time of a robbery-homicide and he may have been seen in the area by a bus driver. He knew that an Aspen can had been found at the scene of the robbery-homicide, and petitioner stated that he had bought some Aspen (a popular soft drink beverage) in San Marino. This was insufficient evidence upon which to base an arrest.

From the evidence available to Agent Havens, it would have been reasonable to assume only that it was petitioner's vehicle which was seen by the R.T.D. bus driver, and that petitioner had been in the general area of the robbery-homicide on August 9, 1979, as has been found by the trial court. However, it was clear from the testimony of bus driver Waters that petitioner's car was not the only car seen in the area, as he saw many cars along Huntington Drive, and at intersections. Further, there was no evidence available to Agent Havens to indicate that the people who had committed the robbery had, in fact, used a motor vehicle during the crime. None was seen or heard. Thus, even if it is assumed that petitioner was driving in the area of the crime at about the time it was committed, that alone cannot supply probable cause to believe that he committed the crime. If there had been evidence the robbers had left in an automobile, and that automobile traffic was minimal at that time and place, that might have been sufficient along with other proven circumstances to allow an arrest. (Cf. In re Louis F., 85 Cal.App.3d 611, 149 Cal.Rptr. 642.) No such factors were shown in the present case. Although characterized by the trial court as “unusual movements,” there was nothing to show that the movements of the vehicle were in any way out of the ordinary.

Other than the inference that petitioner was in the area of the robbery-homicide at about the time it occurred, the only evidence known to Havens when he arrested petitioner was that an Aspen soda pop can had been found at the service station restroom which was an “important factor” in the case, and that petitioner had bought Aspen in San Marino. While this information may have arguably have provided grounds for a temporary detention for questioning at that point (although petitioner was already in custody), it was hardly sufficient to provide probable cause for arrest. There was no testimony that Aspen soda pop is a particularly unique or rare item to be found in San Marino, nor was there any basis for believing that the Aspen can found in the service station restroom was somehow unique in itself; nor was there any possible basis for connecting that soda pop can with petitioner, other than the most general speculation.

The California Supreme Court examined a similar situation in People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33. In that case the defendant was seen walking in the area of a reported burglary not long after it had allegedly taken place. Further there was a tenuous connection of the defendant with the crime, as he matched the description of the burglar in that he was black and was wearing the same type of clothing. Nevertheless, the Supreme Court held that there was nothing unique about defendant's appearance, and ruled that while a short investigative detention may have been proper, there was not probable cause to arrest the defendant. (70 Cal.2d at p. 358, 74 Cal.Rptr. 713, 450 P.2d 33; cf. People v. Mickelson, 59 Cal.2d 448, 454, 30 Cal.Rptr. 18, 380 P.2d 658.)

As petitioner's arrest was based not upon any specific facts leading to a reasonable strong suspicion that he had committed a crime, but was rather based upon the barest speculation raised by insubstantial evidence, his arrest was unlawful. The evidence acquired through the exploitation of this illegal arrest should have been suppressed and excluded by the trial court.

V

DISPOSITION

The record establishes that petitioner's original custodial detention by Officer Diaz was an “arrest” as that term has been defined by California statute and judicial authority. But even if petitioner was not arrested, it is clear that he was at least detained for the purpose of custodial interrogation. In either event, Officer Diaz' action was unlawful unless she (or the officer directing her to take petitioner into custody) believed that there was probable cause to believe petitioner had committed a crime, and unless that belief was reasonable.

The record also establishes that no police officer believed that there was such probable cause at the time petitioner was initially taken into custody. The trial court erred in its ruling that petitioner's detention was justified if such probable cause appeared objectively and independently, notwithstanding the contrary belief of the police officers. Absent such a subjective determination on the part of the police, petitioner's detention and/or arrest was unlawful and the fruits of that arrest should have been suppressed under Penal Code section 1538.5.

Let a writ of mandate issue directing respondent court to vacate its order of December 13, 1979, denying petitioner's motion to suppress evidence, and to enter a new and different order granting petitioner's said motion.

Although I agree with the majority opinion, I deem it necessary to write separately to express my views regarding this case and an idea set forth in the dissent.

The dissent comments that the vacating of the trial court's order “very probably will result in the ultimate release of a defendant charged with murder in the course of a robbery and robbery.” I do not agree with this view expressed—that the question of whether a defendant's constitutional rights have been invaded by law enforcement authorities should turn upon an appellate court's determination of whether its ruling will result in the release of a person charged with serious crimes. I must express my disapproval of a view that seems to imply that the interpretation of the federal and state Constitutions should vary in accordance with the nature of the crimes charged against defendants who are asserting constitutional rights. I consider that the probable result of a specific interpretation and definition of a constitutional right of a person upon whether the prosecutorial officials can succeed in a successful prosecution of that person is a totally irrelevant consideration.

There are factors present in this case which lead rather patently to a conclusion that ugly racial overtones have existed from the very inception of this case. Thus, we have the factor of the actions of a vigilante-type bus driver who makes note of the license number of a vehicle which he observed committing a traffic violation. Would this bus driver have taken note of the vehicle's license number had the vehicle been occupied by three white males rather than three male blacks in the San Marino area of Los Angeles County—an area in which there was testimony that no blacks resided? I doubt it. The bus driver had no information at the time he saw the particular vehicle commit what he considered to be a traffic violation, that any more serious law violation had taken place recently in the community by any person at all, let alone the occupants of the vehicle the license number of which he took particular note.

This kind of surveillance of blacks observed on streets where all citizens have a right to be—regardless of the racial makeup of the particular neighborhood—should not be condoned. On the contrary, this vigilante-type of racial surveillance action by citizens should be condemned and abhorred with all the strength and determination at one's disposal.

My reading of the record in the case before us leads me unequivocally to the conclusion that, had this defendant-petitioner been of a racial background other than black, he would not have received the blatantly unconstitutional kind of detention and arrest treatment which he received at the hands of the police authorities.

We are concerned here with protecting every citizen's personal security from a particularly abhorrent governmental invasion. “[T]he 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.” (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 368, 582 P.2d 957, 959.)

I dissent. I would discharge the alternative writ and deny the peremptory writ of mandate. I cannot on the basis of the evidence before Judge Tuthill in the superior court join in vacating an order that very probably will result in the ultimate release of a defendant charged with murder in the course of a robbery and robbery.

The charge in the concurring opinion that my decision herein turns on the fact that defendant is accused of serious crimes could not have been more carelessly made. It must be at once obvious from a fair reading of this dissenting opinion that my determination that law enforcement authorities did not invade defendant's constitutional rights rests solely on the substantial evidence before the trial court pointing to the validity of the detention and the legal authorities supporting it. Nor can I allow to stand unchallenged the accusation in the concurring opinion “that ugly racial overtones have existed from the very inception of this case.” (Emphasis added.) This is an unfounded indictment of all who have had anything to do with this case starting with the bus driver who is so unfairly criticized by the concurring opinion for noting the license number of defendant's car in the vicinity of the crimes shortly after they occurred, progressing to the law enforcement officers, prosecutors, the magistrate and Judge Tuthill and ending with this writer. The only “racial overtones” I have encountered in this case are those created in the concurring opinion itself; surely none can be found in a fair reading of the record before us. The evidence does disclose that the three occupants of the vehicle were black, but does not reveal the race of the bus driver, indeed he well may be, and the victim, too, may have been black; however, it does firmly reflect that the bus driver did not take the license number of defendant's car because the occupants were black, as asserted in the concurring opinion, but because of the manner in which the vehicle came into the intersection against the red light in front of the bus, the damaged left front fender, its speed of about 40 miles per hour and the unusual activity of one of the occupants in the front passenger seat of changing his shirt. Nor does the record show he noted the license plate number because of his concern with a traffic violation; it is rather obvious that he did it because of the suspicious circumstances surrounding the vehicle of which he was reminded later that day when he learned from the television of the shooting that had occurred in the vicinity. I can only interpret the actions of the bus driver as those of an alert law-abiding citizen acting in the best interests of protecting the community against crime, and commend such conduct in aid of law enforcement, for certainly it cannot be wrong in any sense of the word nor prohibited by any law or the constitution. Finally, contrary to the implication in the concurring opinion, I would no more think of upholding as valid law enforcement conduct because of the race of the defendant (cf. People v. Level, 103 Cal.App.3d 899, 162 Cal.Rptr. 682, hg. den. [see majority opinion by Lillie, J.]) than I would think of releasing him from criminal charges because of his race.

The unnecessary discussion in the concurring opinion of the motives of those involved in this case does not detract from the very significant issue here which is the right of police officers, who have a rational belief that the suspect is connected with a crime of violent nature (robbery-homicide) committed by use of handguns and that there is a risk of personal danger to them, to take precautionary measures for their own safety in circumstances short of probable cause to arrest.

The standard for detention for reasonable investigative procedures is of lesser degree than that applicable to an arrest. (People v. Harris, 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 540 P.2d 632.) The People concede, and I agree, that the circumstances are insufficient to furnish reasonable cause to arrest defendant at the time Officer Diaz stopped his vehicle. However, the following facts and circumstances known to Officer Diaz, a Pasadena police officer, at the time she was required to act fully warranted defendant's detention for investigative reasons.

Shortly before 3 p. m. on August 9, two blacks in their early twenties, 5 feet 6 inches-5 feet 8 inches, weighing 170 pounds, wearing stocking masks which they put on in the restroom of an Arco station in San Marino and holding handguns, entered the station, robbed the premises, shot and killed an employee, and fled. About that time in the vicinity of the Arco station a bus driver observed a dark vehicle with a damaged left front fender and occupied by three young blacks enter an intersection against the red light in front of the bus; as the vehicle turned east going 40 mph, one of the front passengers was changing his shirt; the vehicle bore license number “Cotton 3.”1 “Cotton 3,” belongs to a 1970 Datsun owned by a party in Richmond. However, a black Dodge Aspen owned by Kathryn Cotton on Mentone Avenue in Pasadena and bearing license number “Coton 3” was often seen in the Pasadena area; it had been involved in a police grand theft investigation a month before, and one of the suspects was Carlo Cotton (defendant herein) a black male at the same address. When Officer Diaz informed Agent Havens, San Marino police, of this, Agent Havens told her that persons using the Dodge Aspen bearing license “Coton 3” could be involved in the robbery-homicide the day before; he asked her to detain the driver if seen driving the vehicle so that he could interview him. At 9 a. m. on August 10, Officer Diaz drove to the Cotton address where she observed the vehicle parked in the driveway; in 15 minutes a man who answered the general description of the robbery-homicide suspect entered the vehicle; she followed it and effected a stop.

The foregoing known to Officer Diaz at the time she stopped defendant met the requisite but lesser detention standards of “good faith suspicion” and “rational belief of criminal activity” articulated in People v. Harris, 15 Cal.3d 384 at pages 388-389, 124 Cal.Rptr. 536, 540 P.2d 632. The circumstances are such as would indicate to a reasonable man in a like position that such a course was necessary to the proper discharge of the officer's duties (People v. Flores, 12 Cal.3d 85, 91-92, 115 Cal.Rptr. 225, 524 P.2d 353; People v. Moore, 69 Cal.2d 674, 682-683, 72 Cal.Rptr. 800, 446 P.2d 800).

Upon stopping the vehicle, Officers Diaz and Foster approached defendant with weapons drawn and told him to step out of the vehicle and keep both hands in plain sight; she announced that he was not under arrest, he was being detained for investigation of a robbery that had occurred in San Marino, a San Marino officer would come out to talk to him and it would be up to him to hold or release him; she ordered him to lie down on the grass with his hands to his back; defendant did so and he was handcuffed and searched for weapons (none was found); the officers returned their weapons to their holsters. At the time Officer Diaz stopped defendant, she was aware of the robbery-homicide the day before and the general description of the suspects, and that handguns had been used in the murder, defendant matched the description of the murder suspect, his vehicle “Coton 3” had been seen at the time and in the vicinity of the murder and she believed defendant might be the murder suspect; based on this belief and because of the violence of the crime and the use of handguns in its commission, she felt it necessary to secure her safety as well as that of the other police officer, and at that time made a field judgment to use the “felony stop” procedure—weapon drawn concomitant to ordering driver out of car.

At her request, defendant produced his driver's license; she asked him if he had driven in San Marino the day before and he answered in the affirmative, that he had been driving to East Los Angeles College. Defendant remained handcuffed and was permitted to sit in his own car parked at the curb to await arrival of Agent Havens.

Given the totality of the circumstances, it was objectively reasonable for Officer Diaz to suspect that defendant was connected with or involved in the robbery-homicide the day before. The propriety of a request by an officer that the driver alight from the vehicle in order to insure the safety of the officer, if the circumstances warrant it, has long been recognized. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110-111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331; People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Beal, 44 Cal.App.3d 216, 220, 118 Cal.Rptr. 272; People v. Knight, 20 Cal.App.3d 45, 49-50, 97 Cal.Rptr. 413.) Not every detention for investigative procedures is converted into an arrest merely because the suspect is handcuffed. In People v. Harris, 15 Cal.3d 384, 124 Cal.Rptr. 536, 540 P.2d 632, the suspects were stopped, interrogated, searched, handcuffed, placed in the back of the police car, and transported to the scene of the burglary. (Page 387, 124 Cal.Rptr. 536, 540 P.2d 632.) The court held the initial detention to be proper but that it was the transportation to the burglarized residence under the circumstances there that extended the detention beyond constitutional bounds. (Page 392, 124 Cal.Rptr. 536, 540 P.2d 632.) However, just as there are circumstances short of probable cause to arrest that may justify transportation to the crime scene for further interrogation or possible identification (People v. Harris, 15 Cal.3d 384, 391, 124 Cal.Rptr. 536, 540 P.2d 632), there are circumstances that may warrant hand-cuffing the suspect. The violent nature of the robbery-homicide with use of handguns the day before, the rational belief on her part that defendant was connected with the crime and her belief that there was a risk of danger to them made it reasonably necessary under the circumstances for Officer Diaz to order defendant to the ground and handcuff him as a precautionary measure and search him for weapons. (People v. Waters, 30 Cal.App.3d 354, 360, 106 Cal.Rptr. 293.)

At the outset, Officer Diaz radioed Agent Havens of defendant's detention; 15 to 20 minutes later he arrived and Officer Diaz handed him a driver's license. Agent Havens asked defendant if he was Carlo Cotton and if the car was his; defendant responded it was, although registered to his mother but he alone drove it. Havens told defendant the vehicle was seen in the San Marino area the day before, he answered that he drove down Huntington Drive to a market; asked if someone was with him, defendant said his friend Jim was with him; asked what he was doing in the area that day, defendant replied he and Jim drove in the San Marino area between 3 and 4:30 p. m. and he was “just driving around looking at the houses and had gone to a market and bought Aspen soda pop.” Agent Havens was aware that an Aspen soda pop can had been found immediately after the murder, in the restroom of the Arco station in which two black males had put on stocking masks,2 and at this point Agent Havens advised defendant he was under arrest.

There arises under the foregoing set of facts, the issue of the reasonableness of the duration of the detention. Gleaned from cases dealing with this issue (People v. Harris, 15 Cal.3d 384, 390, 124 Cal.Rptr. 536, 540 P.2d 632; People v. Gale, 9 Cal.3d 788, 798-799, 108 Cal.Rptr. 852, 511 P.2d 1204; People v. Grace, 32 Cal.App.3d 447, 452, 108 Cal.Rptr. 66; People v. Rosenfeld, 16 Cal.App.3d 619, 622-623, 94 Cal.Rptr. 380; Pendergraft v. Superior Court, 15 Cal.App.3d 237, 242, 93 Cal.Rptr. 155, 158; Willett v. Superior Court, 2 Cal.App.3d 555, 559, 83 Cal.Rptr. 22), is the test of what is reasonably necessary under the circumstances. The court in Pendergraft v. Superior Court, 15 Cal.App.3d 237, 93 Cal.Rptr. 155, 158 observed that “[n]o hard and fast rule can be formulated for determining the reasonableness of the period of time elapsing during a detention. The dynamics of the detention-for-questioning situation may justify further detention, further investigation, search, or arrest.” (Page 242, 93 Cal.Rptr. page 158.) In this context, the courts look to the initial purpose of the detention, any events transpiring after the initial stop and whether the time was reasonably necessary to carry out the purpose of that detention (People v. Wickers, 24 Cal.App.3d 12, 17, 100 Cal.Rptr. 732) and complete the infield investigation (see People v. Rosenfeld, 16 Cal.App.3d 619, 622, 94 Cal.Rptr. 380).

This is not a case in which the police stopped defendant for a vehicle violation or minor infraction and, absent any suspicious circumstances other than those justifying the initial stop either out of unprovoked curiosity or on an unarticulated hunch, continued to hold him for the purpose of checking for warrants or questioning him in an entirely unrelated matter. This is a case in which defendant was detained in Pasadena by Pasadena police officers in connection with a murder committed in San Marino to await the arrival of a San Marino police officer for an in-the-field investigation concerning that murder. Agent Havens' purpose of asking Officer Diaz to stop defendant so he could question him “was two-fold. It would be elimination of an innocent person or investigation of a possible suspect”; the reason for the detention beyond the initial stop was to permit investigative inquiry by Agent Havens of San Marino where the murder was committed because a suspect had been stopped in Pasadena by Officer Diaz who had “very little information about the actual crime,” and so advised him. Fifteen to twenty minutes elapsed between the time defendant was stopped and Agent Havens arrived. After his arrival, it was only a matter of minutes before he effected defendant's arrest. The totality of the circumstances compels the conclusion that both the police conduct in detaining the defendant and the time involved therein were reasonably necessary to carry out the purpose of the detention.

Probable cause is shown when the facts known to the arresting officer would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty. (People v. DeVaughn, 18 Cal.3d 889, 895, 135 Cal.Rptr. 786, 558 P.2d 872.) It is not contended that Agent Havens did not have probable cause to arrest defendant at that time. In any case, I would uphold the validity of the arrest.

FOOTNOTES

FOOTNOTE.  

1.  The bus driver later identified this vehicle from a photograph as the vehicle involved herein.

2.  The evidence shows that no Aspen soda pop was sold on the premises, no one was seen drinking from such a can, before the arrival of the murder suspects no Aspen soda pop can had been in the restroom but such a can was there immediately after the murder.

SCHWARTZ,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

JEFFERSON, Presiding Justice, concurring.LILLIE, Associate Justice, dissenting.