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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Bernard E. DUNN, Defendant and Appellant.

Cr. 18148.

Decided: June 19, 1980

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, John H. Sugiyama, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Quin Denvir, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Harriet Wiss Hirsch, Tanya Neiman, Deputy State Public Defenders, San Francisco, for defendant and appellant.

The appellant, Bernard Dunn, after his motions to suppress were denied, pled guilty to having had sexual intercourse with two women under 18.  (Pen.Code, § 261.5.)   Dunn's arrest was based solely on information given the Berkeley Police by the two women.   The women made their accusatory statements after being arrested for failing to show proper identification when they were stopped on the street because they looked young and looked like prostitutes.   Dunn challenges the stop as unconstitutional 1 and argues that the women's statements should have been suppressed.   Finding these contentions meritorious, we reverse.

 Advance report citation:  48 U.S.L.W. 3797.



On the evening of August 31, 1977, Berkeley Police Officers John Houpt and John Whitson were specifically assigned “to concentrate on the prostitution problem on University Avenue.”   Whitson had been with the vice squad for 21 months.   He asserted that prostitution in Berkeley is centered on University Avenue between Seventh Street and San Pablo Avenue.

At approximately 10 p. m., Officer Houpt observed two young women walking down University Avenue somewhere between Seventh and Ninth Streets.   From his patrol car he observed them walk for a “block, half a block” and then stopped them.   He stopped them “based on an intangible that led me to believe that they were prostitutes.   Also the fact that they looked fifteen years of age and not eighteen or over.”   The officer did not suggest that the women were in any way engaged in soliciting customers when he observed them.   In fact the testimony indicated that the women, who were staying at a nearby motel, were not working that night but were on their way to meet a friend.

Officer Whitson came upon the scene shortly after the stop.   He described the women as looking 16 to 17, one “a blonde, approximately five foot tall, rather buxom with a whitish top and dark trousers,” and the other “approximately five foot seven, dark hair, wearing, as I recall, an orange blouse, buxom also, with dark trousers.”   He stated:  “In my opinion, I was unable to understand how young ladies their age, sixteen or seventeen, would be in an area such as that at that time of night without any male escorts.   And I believed them to be engaged in prostitution.”

On cross-examination Whitson conceded that there were restaurants on the south side of University Avenue below San Pablo that might have been open, that a Foster Freeze one block above San Pablo was a popular hangout for high school students during the summer months and, most important, that if one walked north or south on Seventh Street from University Avenue one would immediately be in a residential neighborhood of “one, two, and three-family private homes on both sides of the street” in which children as well as elderly persons lived.   The officer testified:  “It is not unusual to see minors walking to and from the area, but all circumstances considered, it is unusual, yes.”

The Detention and Arrest

The officers asked the young women for identification and they produced cards “of the type distributed by a private agency,” easy to procure, that had been issued one day previously.   Nothing “clearly fraudulent” was observed about the cards, however.

Each officer took one young woman aside for questioning.   The woman Whitson took aside identified herself as Mimi Red and claimed she was from Manhattan.   He obtained permission to search her purse, found eye drops with the name J.R. on it and found a telephone book.   An officer at headquarters called a number from the book and reached a person who said that the young woman's description fit that of her granddaughter, J.R., who had run away from a reformatory.   Whitson arrested J.R. for having misidentified herself and because he had found pills in her purse that he suspected, on what basis he could not say, had been obtained illegally.2

The second young woman, identified later as K.G., was arrested on the basis of her unofficial I.D. card, her misspelling of “Bronx,” and her association with J.R.

The Statements

Within 30 minutes of the stop, just after their arrival at the hall of justice, J.R. and K.G. admitted their real names, their ages (fifteen) and the fact that they had escaped to San Francisco on August 24 from a Boonville reformatory.   They reported that a friend had introduced them to Bernard Dunn, and that Dunn had given them food, shelter and clothing, had expected them to work for him as prostitutes in exchange, and had had sexual intercourse with them.   The women had had two and three customers, respectively.   They moved with Dunn to Berkeley on August 30 and were arrested the next night.

Dunn was arrested, charged with two counts of pandering (Pen.Code, § 266i) and two counts of statutory rape (Pen.Code, § 261.5).   When his suppression motion under Penal Code section 1538.5 was denied he pled guilty to the latter two counts and the first two were dropped.   He was sentenced to three years, and given probation on the condition that he serve one year in the county jail.



 Dunn challenges the stop and arrest of the young women as violative of the search and seizure clauses of the federal and state constitutions.   Under state law he has standing to do so.  (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 155–156, 161, 98 Cal.Rptr. 649, 491 P.2d 1;  People v. Martin (1955) 45 Cal.2d 755, 761, 290 P.2d 855;  People v. Farley (1979) 90 Cal.App.3d 851, 865, 153 Cal.Rptr. 695.)

 The governing legal principles have been articulated repeatedly and recently by the California and United States Supreme Courts.   First, “[w]hen the officers detained [the women] for the purpose of requiring [them] to identify [themselves], there is no question but that “they performed a seizure of [the women's] person[s] subject to the requirements of the Fourth Amendment.”  (Brown v. Texas (1979), 443 U.S. 47, 49, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357.)   As the California Supreme Court has explained:

“[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.  (See, e. g., People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 815, 91 Cal.Rptr. 729, 478 P.2d 449, [45 A.L.R.3d 559] and cases cited.)  ‘A police officer may not use the authority of his uniform and badge to go around promiscuously bothering citizens.’  (Batts v. Superior Court (1972) 23 Cal.App.3d 435, 439, 100 Cal.Rptr. 181 [184].)”  (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 368, 582 P.2d 957, 959.)

Thus, “the courts have concluded that in order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.   Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so:  the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience (People v. Superior Court (Kiefer) supra, 3 Cal.3d at p. 827 [91 Cal.Rptr. 729, 478 P.2d 449]), to suspect the same criminal activity and the same involvement by the person in question.   The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful even though the officer may be acting in complete good faith.  (Terry v. Ohio, supra, 392 U.S. [1] at p. 22 [88 S.Ct. 1868 at p. 1880] [20 L.Ed.2d at pp. 906–907].)”

(In re Tony C., supra, 21 Cal.3d at 893, 148 Cal.Rptr. at 368, 582 P.2d at 959 (footnote omitted);  accord, Brown v. Texas, supra, 443 U.S. at 49, 51, 99 S.Ct. at 2640, 2641.)

The courts have vigorously enforced their own rules.   In Brown v. Texas officers observed two men walk away from each other in an alley located in an area with a high incidence of drug traffic and believed the men had been together or were about to meet until the patrol car appeared.   This “looked suspicious” to the officers and they approached the defendant and asked to see identification.   He refused and was arrested.   The Supreme Court, per Chief Justice Burger, reversed the conviction, holding:

The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct.   In short, the appellant's activity was no different from the activity of other pedestrians in that neighborhood.   When pressed, officer Venegas acknowledged that the only reason he stopped appellant was to ascertain his identity.   The record suggests an understandable desire to assert a police presence;  however that purpose does not negate Fourth Amendment guarantees.

In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference.   The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers:  prevention of crime.   But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it.   When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits.

(99 S.Ct. at 2641.)

The California Supreme Court has been equally circumspect in four recent cases.   In People v. Bower (1979) 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115 an officer observed one white male and several black males leaving a housing project populated by blacks.   It was night, the area was a high crime area, the officer had seen white individuals in that neighborhood at night only for the purpose of purchasing narcotics, and the men dispersed as the officer approached.   The Court held that the reasons cited to support the investigative stop were too flimsy, emphasizing that a person's race, the hour of the night, and the nature of a neighborhood are not specific enough to connect individuals to crime.   The court also warned that an officer's experiences with prior arrestees does not automatically implicate anyone else fitting categories formulated as the result of such experiences.  (24 Cal.3d at 645, 156 Cal.Rptr. 856, 597 P.2d 115.)

In People v. McGaughran (1979) 25 Cal.3d 577, 159 Cal.Rptr. 191, 601 P.2d 207 the Court held that detention exceeding the time required to cite the defendant for the traffic violation he was pulled over for could not be based on the fact that the driver and his passenger were not local residents, that they appeared to be lost in the vicinity of a high school that was a major center of narcotics transactions, and that they made a “furtive movement” when pulled over.  (25 Cal.3d 588–90, 159 Cal.Rptr. 191, 601 P.2d 207.)

In In re Tony C. (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957, officers saw two black youths on a street corner during the school day in a neighborhood in which three black males had been reported as having committed a burglary the previous day.   One youth briefly departed, leaving the other, the officer thought, to stand as lookout.   The court reversed a conviction based on an identification made of the defendant as the result of an investigatory detention by the suspicious officer.

In short, viewed either singly or collectively the circumstances known to Officer Joy did not support a reasonable suspicion that Tony and his companion were involved in criminal activity when he observed them walking along the sidewalk.   Rather, as the officer testified with regard to his “lookout” theory, at most he “thought possibly” that the two youths might have been engaged in some kind of larcenous conduct.   The ensuing investigative stop was thus based entirely on a combination of hunch and curiosity, and hence was no less unlawful than the intrusions we condemned in Irwin [v. Superior Court (1969) 1 Cal.3d 423, 82 Cal.Rptr. 484, 462 P.2d 12], [People v.] Moore, [(1968) 69 Cal.2d 674, 72 Cal.Rptr. 800, 446 P.2d 800] and [People v.] One 1960 Cadillac Coupe [(1964) 62 Cal.2d 92, 41 Cal.Rptr. 290, 396 P.2d 706].

(21 Cal.3d at 898, 148 Cal.Rptr. at 372, 582 P.2d at 963.)

Finally, and most recently, the court held that an officer could not signal a car to stop merely because he believed the three occupants were juveniles and because the time was 2 a. m.   These facts were held insufficient to make reasonable the suspicion that the occupants were violating an ordinance forbidding minors from “wander[ing]  ․ ․ ․  the public streets [after] 10 p. m. [except to return]  ․ ․ ․  directly home from [e. g.] a  ․ ․ ․  recreational activity  ․ ․ ․ .”  (People v. Teresinski (1980) 26 Cal.3d 457, 462 fn. 2, 162 Cal.Rptr. 44, 46, 605 P.2d 874, 876.) 3

 The investigatory stop of the young women on University Avenue, when judged by the principles and precedents set forth above, cannot be justified.   The women were stopped, according to the testimony, because the officers believed they were prostitutes.   Yet the officers did not claim, nor could they claim, given the evidence, that the women were soliciting customers (Pen.Code, § 647, subd. (b)) when they were observed.4  No conduct at all was alleged here.   The threshold question, therefore, is whether a nonworking prostitute has a per se identifiable appearance such that police officers can distinguish sophisticated members of the Berkeley High Annex student body who stay out late, from young University Avenue prostitutes out walking rather than working?   If so, and the burden is on the police to support the claim with specific facts, the basis for such a distinction does not appear in this record.

The officers' belief that the young women were prostitutes, was based on the following facts:  an “intangible”;  the women were buxom;  the women were in an area of Berkeley in which prostitution activity is centered;  it was night.   As the cases discussed above make clear,5 these do not constitute “specific and articulable facts” rendering the officers' suspicion “objectively reasonable.”  (In re Tony C., supra, 21 Cal.3d at 893, 148 Cal.Rptr. 366, 582 P.2d 957.)   The initial claim that it was unusual to see unescorted women on the block in question compels no different conclusion.   The claim was considerably undermined by the subsequent concessions that the block was in the midst of a truly residential neighborhood, that several restaurants were probably open nearby, and that a high school hangout was one block, albeit a long one, away.6

The fact that 15 year olds were the detainees here is of course a fact that gives us pause before applying prior decisions.   But the Supreme Court has recently observed that the enforcement of search and seizure laws when minors are involved, instead of being “inconsistent with the state's interest in child welfare  ․ ․ ․  helps ensure that the factfinding process conforms with standards of due process.  [¶] Justice should not be compromised by well-intentioned aims to correct transgressing youths, and the rehabilitative value of treating juveniles with fairness must not be underrated.”  (In re Scott K. (1979) 24 Cal.3d 395, 402, 155 Cal.Rptr. 671, 674–675, 595 P.2d 105, 108–109.)

The Court took care in In re Tony C. to note that its decision was not intended to inhibit an officer from engaging “in one of ‘those innumerable miscellaneous tasks which society calls upon police to do which have nothing to do with the detection of crime’ (Batts v. Superior Court (1972) 23 Cal.App.3d 435, 438, 100 Cal.Rptr. 181, [183]), such as giving aid to persons in distress, mediating domestic quarrels, assisting the elderly or the disabled, furnishing traffic advice or directions, and generally preserving the peace and protecting persons from harm or annoyance.”  (21 Cal.3d at 895–96, 148 Cal.Rptr. at 370, 582 P.2d at 961.)   But the stop here is not included within that category.  “If the individual is stopped or detained because the officer suspects he may be personally involved in some criminal activity, his Fourth Amendment rights are implicated and he is entitled to the safeguards of the rules set forth above.”  (Id. at 895, 148 Cal.Rptr. at 370, 582 P.2d at 961.)   That the Fourth Amendment protection is one afforded to juveniles is manifest in the fact that Tony C. itself involved a juvenile.  (See also People v. Teresinski, supra.)   Since Officers Whitson and Houpt admitted that suspicion that the young women were engaged in criminal activity was the basis of the challenged stop,7 Tony C. leaves no choice but to deem the stop unlawful.

The exclusionary rule is triggered by the illegality.   While Dunn's person, under federal law, cannot be considered a suppressible “fruit of the poisonous tree” and the illegal detention would not, by itself, bar prosecution of him (see United States v. Crews (1980) 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537), evidence obtained as a result of the unlawful detention, here the incriminating testimony of the young women, could not be admitted against him.  (Dunaway v. New York (1979) 442 U.S. 200, 215–217, 99 S.Ct. 2248, 2258, 60 L.Ed.2d 824, 838–39;  Teresinski, supra, 26 Cal.3d at 464–65, 162 Cal.Rptr. 44, 605 P.2d 874.)

The taint of the illegality was not attenuated by subsequent events.   This was not a case in which the incriminating evidence was discovered by “pure happenstance” (People v. McInnis (1972) 6 Cal.3d 821, 825, 100 Cal.Rptr. 618, cert. den. 409 U.S. 1061, 93 S.Ct. 562, 34 L.Ed.2d 513) or was communicated to the police prior to the illegal seizure.  (Crews, supra.)   The teenagers incriminated Dunn only after being illegally stopped, questioned individually, arrested, and brought to juvenile hall.   In that context their incriminating statements, though not the result of overbearingly “oppressive circumstances” and though in some sense “[voluntarily] rendered,  ․ ․ ․  are not exempt from attack on constitutional grounds.”   (People v. Bilderbach (1965) 62 Cal.2d 757, 767, 44 Cal.Rptr. 313, 319, 401 P.2d 921, 927.)  “[I]nduced by  ․ ․ ․  factors inherent in the situation” created by the illegal seizure that made their “consent less than an act of free will” (Mann v. Superior Court (1970) 3 Cal.3d 1, 8, 88 Cal.Rptr. 380, 384, 472 P.2d 468, 472, cert. den. (1971) 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635;  see People v. Haydel (1974) 12 Cal.3d 190, 200–201, 115 Cal.Rptr. 394, 524 P.2d 866) the statements were obtained by “exploitation” of the initial illegality, not “by means sufficiently distinguishable to be purged of the primary taint.”  (Wong Sun v. United States (1963) 371 U.S. 471, 487–488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441;  People v. Caratti (1980) 103 Cal.App.3d 847, 851, 163 Cal.Rptr. 265.)

 Nor was the arrest here an intervening independent event that disengaged the subsequent incriminating statements from the illegal stop.   J.R. and K.G. were technically arrested under Penal Code section 647, subdivision (e), which provides:

Every person who commits any of the following acts is 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 person that the public safety demands such identification.

If there were no objectively reasonable basis to believe the young women were prostitutes, then “surrounding circumstances” were not “such as to indicate to a reasonable person that the public safety demand[ed] such identification.”   Thus this statute gave no authority to the police to approach the women and to elude the mandate of In re Tony C.8

Dunn's motion to suppress should have been granted.   The judgment is reversed.

Hearing denied; CLARK, RICHARDSON and MANUEL, JJ., dissenting.



1.   Dunn also challenges Penal Code section 261.5 as violative of equal protection.   However, while this case was pending, the California Supreme Court rejected the identical argument.  (In re Michael M. (1979) 25 Cal.3d 608, 159 Cal.Rptr. 608, 601 P.2d 572, cert. granted (No. 79–1344 June 9, 1980) ––– U.S. ––––, ––– S.Ct. ––––, 64 L.Ed.2d ––––.** )

2.   Inexplicably the trial court sustained a relevancy objection to further questions regarding the pills as a basis for the arrest.

3.   See also these cases in which detentions were held unlawful:  United States v. Palmer (8th Cir. 1979) 603 F.2d 1286, 1288 (no reasonable suspicion to ask youths question re gang fights even though racial violence that day, and reports that residents are arming themselves);  United States v. Beck (5th Cir. 1979) 602 F.2d 726, 729 (nothing suspicious about two black men sitting outside market with motor running);  People v. Glover (1979) 93 Cal.App.3d 376, 155 Cal.Rptr. 592 (roadblock based on description of boots);  People v. Davis (1979) 88 Cal.App.3d 732, 734–35, 152 Cal.Rptr. 92 (two men in motel parking lot at 4:30 a. m. in area where restaurants open).   Compare these cases in which stops were permitted:  People v. Perry (1979) 100 Cal.App.3d 251, 262–63, 161 Cal.Rptr. 108 (three men with television, guitar, clothes, leather bag, put down television and quicken pace when patrol car comes near);  People v. Rico (1979) 97 Cal.App.3d 124, 130–31, 158 Cal.Rptr. 573 (shooting had just occurred late at night on relatively deserted freeway);  People v. Gardner (1979) 90 Cal.App.3d 42, 49, 153 Cal.Rptr. 160 (caravan of previously identified suspect vehicles sighted traveling in right direction at high speed on little-used road).

4.   The California Supreme Court has stated that solicitation requires a “personal petition,” not merely “waving at a passing vehicle, nodding to a passing stranger, or standing on a street corner in a mini-skirt.”  (People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 343, 345–46, 138 Cal.Rptr. 66, 69, 562 P.2d 1315, 1318.)Also distinguish the “prostitute stroll” observed in In re Nancy C. (1972) 28 Cal.App.3d 747, 751, 105 Cal.Rptr. 113.

5.   See In re Tony C., supra, 21 Cal.3d at 898, 148 Cal.Rptr. 366, 582 P.2d 957;  People v. McGaughran, supra, 25 Cal.3d at 588, 159 Cal.Rptr. 191, 601 P.2d 207;  People v. Bower, supra, 24 Cal.3d at 645, 156 Cal.Rptr. 856, 597 P.2d 115.

6.   Given our holding that the officers offered no objectively reasonable basis for their belief that the women were prostitutes, we need not reach what logically would have been the next question, namely whether In re Tony C. would permit a stop merely on the basis of a belief that a person generally earns his or her living by prostitution.

7.   Tony C. cautions that:“By analogy to the rule in the case of warrantless arrests and searches (see Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23), if the prosecution contends that a stop or detention was for a purpose other than to investigate the defendant as a suspect in criminal activity, it has the burden of proof on the issue.”  (21 Cal.3d at 896, fn. 3, 148 Cal.Rptr. at 370, 582 P.2d at 961.)

8.   Distinguish Michigan v. DeFillippo (1979) 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343, in which arrest under a similar statute was upheld even though the statute had subsequently been declared unconstitutional.   The stop there was fully justified.

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

WHITE, P. J., and FEINBERG, J., concur.