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

PEOPLE of the State of California, Plaintiff and Respondent, v. Jackie Lee BOWER, Defendant and Appellant.

Cr. 16062.

Decided: November 29, 1977

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Philip A. Schnayerson, Philip M. Brooks, Deputy State Public Defenders, San Francisco, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Thomas A. Brady, Alvin J. Knudson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Defendant Jackie Lee Bower, an ex-felon, pleaded guilty to possession of a firearm capable of being concealed upon the person, in contravention of Penal Code section 12021's proscription. His appeal relates only to the superior court's adverse ruling on his Penal Code section 1538.5 motion to suppress evidence of the handgun upon which the charge against him depended.

Uncontradicted evidence before the superior court on Bower's section 1538.5 motion established the following factual context.

Two police officers were parked in a marked police vehicle “speaking with some kids” in a high crime area of San Francisco where one of the officers, over a period of three and a half years, had made at least 500 arrests mostly involving “narcotics, weapons or robbery . . ..” The time was approximately 8:37 p. m. and the date, December 22, 1975. The elevator door of a nearby apartment house opened at street level, and a group consisting of one white and several black persons exited therefrom. The experience of one of the officers was such that with the exception of two “white victims who were victims of armed robberies or strong armed robberies there,” he had “never observed a white person in the projects or around the projects on foot in the hours of darkness or (sic ) for innocent purpose.” The group appeared to observe the marked police car, and then everyone “in the group turned about, tried to make it back into the elevator.” But they could not, as it “seemed the elevator was closed.” “At this point a huddle was taking place during which every so often people would be looking towards (the officers') direction and then back into the huddle.” “Two people started walking away from the group,” but they “were called back” by one of the men. At about this point the officers stepped out of their vehicle, and as they “got maybe two steps from the group or two steps from the patrol car, the group started to move apart.” The white man, who was defendant Bower, “in a very quick walk, almost a run,” attempted “to exit the area through a passageway” leading to another street. One of the officers, following Bower, “detained him as he was trying to go out (of the) alleyway onto” the other street. The officer “patted him down for (his) own safety, it being this hour in the projects, for any weapons.” The pat-down disclosed a loaded “six shot .38 Special revolver.”

Asked: “Why did you detain him?” the officer testified: “I wanted to see what was in fact happening, it didn't seem right to me the actions of the whole group. I thought something was wrong, some criminal activity was taking place.”

Bower contends that he was the victim of a constitutionally improper police detention and pat-down search.

We consider first the concept of what constitutes a police detention of constitutional significance. Such a detention will occur where there has been no arrest, but as a result of some display of police authority one is physically deprived of his freedom of action in any significant way, in order to allow a temporary police investigation. (People v. Villareal, 262 Cal.App.2d 438, 445, 68 Cal.Rptr. 610.)

But not “all police contacts are detentions . . ..” (People v. Ramos, 26 Cal.App.3d 108, 112, 102 Cal.Rptr. 502.) “(A)s long as (a police officer's) conduct is reasonably consistent with his overall duties of protecting life and property and aiding the public in maintaining lives of relative serenity and tranquillity, his contact is not necessarily a ‘detention.’ . . . .” (Batts v. Superior Court, 23 Cal.App.3d 435, 439, 100 Cal.Rptr. 181, 184.) “There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.” (Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889, (conc. opn. of Mr. Justice White); People v. Manis, 268 Cal.App.2d 653, 662-663, 74 Cal.Rptr. 423.) And in order that “the rules of detention” may be applied there must have been “a sufficient show of authority” by the police officer. (Flores v. Superior Court, 17 Cal.App.3d 219, 223, 94 Cal.Rptr. 496, 498.) Nor is “the mere speaking to an individual by a police officer . . . a sufficient intrusion into that individual's life to put into effect the rules of detention, . . .” (Flores v. Superior Court, supra, p. 223, 94 Cal.Rptr. p. —-.)

In accordance with these rules it is now firmly established that: “There is nothing unreasonable in an officer's questioning persons outdoors at night.” (People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57, 58; People v. Chapman, 34 Cal.App.3d 44, 47, 109 Cal.Rptr. 840; see also People v. Villareal, supra, 262 Cal.App.2d 438, 444, 68 Cal.Rptr. 610; People v. Sackett, 260 Cal.App.2d 307, 310, 67 Cal.Rptr. 157.)

From the foregoing it becomes patent that the officers' act in leaving the police car and walking over toward Bower and the group constituted no police detention. Nor do we observe from Bower's appellate briefs that he makes any substantial contrary contention.

Instead, the essence of Bower's argument appears to be that the officer's pursuit and “pat-down search of appellant was unlawful, because he could neither specify nor articulate any facts to support a rational belief that appellant was armed and dangerous.” The contention is found to be devoid of merit, and for the reasons we now state.

The circumstances under which police detention is constitutionally permissible were most recently reiterated in People v. Harris, 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 538, 540 P.2d 632, 634 (cert. den., 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed.2d 175): “ ‘Where there is a rational belief (or good faith suspicion) of criminal activity with which the suspect is connected, a detention for reasonable investigative procedures infringes no constitutional restraint.’ ”

No merit is seen in Bower's contention that the proper standard for police detention is that stated in Irwin v. Superior Court, 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 486, 462 P.2d 12, 14: “Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful.” We are of the opinion that had such been the applicable rule the police detention of Bower, following his flight, was nevertheless constitutionally proper. But as we recently opined in People v. Moreno, 67 Cal.App.3d 962, 134 Cal.Rptr. 322 (hg. in Supreme Ct. den.), the correct rule is restated in People v. Harris, supra.

The case of People v. Martin, 46 Cal.2d 106, 293 P.2d 52, illustrates the rule's proper application. The court said (p. 108, 293 P.2d p. 53): “Although the presence of two men in a parked automobile on a lover's lane at night was itself reasonable cause for police investigation . . ., their sudden flight from the officers and the inference that could reasonably be drawn therefrom that they were guilty of some crime . . ., left no doubt not only as to the reasonableness but as to the necessity for an investigation.” Patently, in the instant case, the officers had “reasonable cause for police investigation” and detention of Bower, upon his taking flight into the nearby passageway.

Where a police officer in the light of his experience concludes that a person with whom he is dealing may be armed and presently dangerous he is entitled for the protection of himself and others to conduct a carefully limited search of the outer clothing of such person in an attempt to discover weapons which might be used to assault him. (Terry v. Ohio, supra, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Hill, 12 Cal.3d 731, 744, 117 Cal.Rptr. 393, 528 P.2d 1 (overruled on other grounds, People v. DeVaughn, 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872); People v. Martin, supra, 46 Cal.2d 106, 108, 293 P.2d 52; People v. Juarez, 35 Cal.App.3d 631, 636-637, 110 Cal.Rptr. 865; People v. Turner, 2 Cal.App.3d 632, 635-636, 82 Cal.Rptr. 763.) “The law in many instances draws a sharp distinction between the controls which may be exercised by peace officers during the nighttime and those to which they are limited during daylight hours, and most of the cases upholding temporary detention for investigation and questioning have arisen out of incidents which occurred at night.” (People v. Henze, 253 Cal.App.2d 986, 989, 61 Cal.Rptr. 545, 547; People v. Chapman, supra, 34 Cal.App.3d 44, 47, 109 Cal.Rptr. 840.)

Again, the case of People v. Martin, supra, 46 Cal.2d 106, 293 P.2d 52, illustrates the point. After reciting the above quoted circumstances giving rise to the permissible police detention of that case, the court continued (p. 108, 293 P.2d p. 53): “Under these circumstances the officers were justified in taking precautionary measures to assure their own safety on overtaking the suspects, and it was therefore reasonable for them to order the suspects to put their hands in front of them and to get out of the automobile to be searched for weapons before being questioned.”

As in People v. Martin, supra, from the sudden flight of the instant case the officer could reasonably infer that Bower was guilty of some crime, and subject, at least, to investigation and temporary detention. Under the circumstances, the officer was justified in taking the precautionary measures that he did. An officer who under such circumstances customarily conducted himself otherwise would in our opinion substantially shorten his life expectancy. “ ‘The realities of present day law enforcement dictate that the failure to make such a search, in many cases, might mean death to policemen.’ ” (People v. Turner, supra, 2 Cal.App.3d 632, 636, 82 Cal.Rptr. 763, 765; People v. Kraps, 238 Cal.App.2d 675, 679-680, 48 Cal.Rptr. 89.)

We are unpersuaded, and uninfluenced, by Bower's insistent argument that he, or his friends, were somehow the victims of race prejudice, or discrimination, by the officers, one of whom noted that the exodus of one white and several black persons from the apartment house elevator in the nighttime initially aroused his suspicion.

The judgment is affirmed.

I respectfully dissent. On the record presented, I cannot agree with the majority's implied conclusion that no detention occurred and its determination that the “pat-down” search was lawful.

A closer inspection of the record1 reveals the following salient facts and circumstances: the “area” alluded to by the witness represents a sector of San Francisco roughly “30 blocks long . . . (and) 4 blocks wide,” and was described as being “predominantly black.” During the officer's three and one-half years' duty in this area, he had never observed a white person afoot, during “hours of darkness or for innocent purposes”; other than arrests, his only “contact” in the area with white persons was either as robbery victims or as suspected purchasers of narcotics.

The “group” placed under surveillance upon exiting a project building elevator, consisted of appellant and two black men and one black woman. The officer's attention was drawn to appellant because “he was white with a group of blacks.” He observed the group attempt to reenter the elevator, then engage in conversation during which time one of them would occasionally look towards him (seated in a parked patrol car about 50 yards distant) and point in different directions.

As a result of those brief observations, the officer concluded that some criminal activity was taking place, “either narcotics or weapons”; after radioing for assistance, he and his partner started walking towards the group which had already begun to disperse in different directions. The officer then decided to detain appellant, who was then quickly walking towards a building passageway leading to a public street, in order to determine “what was in fact happening . . . .” He “instructed” appellant to stop and turn around, which he did. The officer then conducted the challenged pat-down search for his own safety, feeling certain “he should have a weapon on him, being in a situation that he (appellant) was in,” explaining he expected appellant to be armed during a suspected narcotics purchase.

Against this factual background, the appropriate inquiry is not whether a detention occurred but rather whether the uncontroverted act of detention, and resultant search, were lawful. The officer, having predetermined that some mischief was afoot, intended to and did detain appellant based upon an assumption he was involved in narcotics activity and/or was armed with a weapon. While it is not unreasonable for an officer to question someone outdoors (Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 20 L.Ed.2d 889), at night (People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57), a command to halt and turn around immediately followed by the pat-down search, amounted to a good deal more than merely “speaking to an individual” by the officer. (Flores v. Superior Court, 17 Cal.App.3d 219, 223, 94 Cal.Rptr. 496.) Manifestly, the circumstances evidenced a complete act of submission to an asserted “show of authority” (id. p. 223, 94 Cal.Rptr. 496) for the conceded purpose of testing a previously aroused suspicion of wrongdoing. In almost illustrative response to the rhetorical question posed in Flores (supra, at p. 224, 94 Cal.Rptr. 496), appellant “stood his ground” and was, without any attempt to question, promptly subjected to a pat-down search which (typically in contested seizure cases) yielded the contraband.

Unlike the circumstances of flight reflected in the cases relied upon by the majority (People v. Martin, 46 Cal.2d 106, 293 P.2d 52 (sudden flight from scene and subsequent high speed chase); Flores v. Superior Court, supra, 17 Cal.App.3d 219, 224, 94 Cal.Rptr. 496 (defendant ran when the officer called “come here”)) there was no credible evidence that appellant attempted flight either before or after the officer's order to halt. All that appears is that following an animated conversation among four people who had just exited an apartment building, each walked off in varying directions, appellant at a brisk pace heading towards a nearby street. While under some circumstances such activity, without more, might be viewed subjectively as unusual, under generally accepted rules of detention the record must also show that such “ ‘unusual activity was related to crime’.” (Irwin v. Superior Court, 1 Cal.3d 423, 426-427, 82 Cal.Rptr. 484, 486, 462 P.2d 12, 14; People v. Henze, 253 Cal.App.2d 986, 988, 61 Cal.Rptr. 545.) The circumstances and events justifying an investigative detention must be assessed objectively and cannot be based upon purely “subjective feelings of the detaining officer.” (Irwin v. Superior Court, supra, 1 Cal.3d at p. 426, 82 Cal.Rptr. at p. 486, 462 P.2d at p. 14; People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531.) In similar context, the Irwin court stated (1 Cal.3d at p. 427, 82 Cal.Rptr. at p. 486, 462 P.2d at p. 14) that “ ‘(A) detention based on ‘mere hunch’ is unlawful (People v. Nailor, 240 Cal.App.2d 489, 493, 49 Cal.Rptr. 616 . . . (cert. den., 385 U.S. 1030, 87 S.Ct. 763, 17 L.Ed.2d 678), even though the officer may have acted in good faith (Terry v. Ohio, supra, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 . . .). There must be a ‘rational’ suspicion by the peace officer that some activity out of the ordinary is or has taken place . . . some indication to connect the person under suspicion with the unusual activity. . . . (and) some suggestion that the activity is related to crime. (Citation.)' ”

The “rational” suspicion relied on herein consisted of the officer's perception of a commonplace event subjectively assessed as suspicious by reason of the racial mix of four persons engaged in a conversation punctuated by ambiguous gestures. Such innocuous activity, without more, can hardly be described as “unusual” within the context of the rules pertaining to detentions. Moreover, the record is barren of any evidence to connect such activity with criminal wrongdoing. Aside from the activity described, no additional circumstance or event is presented to warrant a suggestion that any of the four was then involved in a narcotics or weapons violation or other nefarious activity. Herein, the suspicion was clearly premised upon the officer's conditioned yet remarkable belief that a white person's presence in the subject area could only be for an evil purpose (there was no evidence he believed appellant to be a robbery victim, the only other category of white he had experienced contact with in the projects area). In short, the officer reasoned2 from past experience that only a white person bent on criminal misdeeds would be present anywhere in that area during nightfall. The implications of such an astonishing revelation are profoundly disturbing. If such subjective determination by the officer were all that is required to justify a detention, then conceivably any white citizen observed in such large urban area after sunset, no matter how innocent the purpose, would be subject to police detention. Moreover, the corollary and equally startling implication of such inflexible reasoning (that any black person associating at night with a white person must either be attempting a robbery or sale of narcotics) is intolerable. The language of People v. Simon, supra, 45 Cal.2d 645, at pages 650-651, 290 P.2d 531, at page 534, is most appropriate: “Under these circumstances, to permit an officer to justify a search on the ground that he ‘didn't feel’ that a person on the street at night had any lawful business there would expose anyone to having his person searched by any suspicious officer no matter how unfounded the suspicions were. Innocent people, going to or from evening jobs or entertainment, or walking for exercise or enjoyment, would suffer along with the occasional criminal who would be turned up.”

Nor could appellant's act of leaving the group as the officers approached transform an otherwise innocent activity into a suspected evil one. (Cf. People v. Moore, 69 Cal.2d 674, 72 Cal.Rptr. 800, 446 P.2d 800.) Clearly, under oft-recited principles justifying reasonable detention for questioning (People v. Harris, 15 Cal.3d 384, 388-389, 124 Cal.Rptr. 536, 540 P.2d 632; Irwin v. Superior Court, supra, 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 462 P.2d 12; People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 94-96, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Henze, supra, 253 Cal.App.2d 986, 988, 61 Cal.Rptr. 545), the detention of appellant was constitutionally impermissible.

Assuming for sake of argument that such circumstances warranted a limited detention “for initial questioning” (People v. Harris, supra, 15 Cal.3d 384, 388, 124 Cal.Rptr. 536, 540 P.2d 632), in fact no such questioning was even attempted. Instead, having speculatively concluded that appellant must be armed, the officer promptly conducted the pat-down search. Essentially the same ground offered to justify the detention is advanced to support the search itself, namely: the officer's suspicion that appellant was then armed. But the record fails to demonstrate the necessary “specific and articulable facts” to justify the search in these circumstances. (Terry v. Ohio, supra, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Lawler, 9 Cal.3d 156, 161, 107 Cal.Rptr. 13, 507 P.2d 621.) In order to permit the limited search for reasons of the officer's safety, he must have “reason to believe that he (was) dealing with an armed and dangerous individual.” (People v. Scott, 16 Cal.3d 242, 249, 128 Cal.Rptr. 39, 44, 546 P.2d 327, 332.) There is nothing in the record before us to support a reasonable conclusion that appellant was “armed and dangerous.” On the contrary, the officer testified he searched appellant simply because he felt he had to be armed, an assumption factually unsupported. It is axiomatic that a “mere hunch,” whether vindicated (as here) or not, cannot legally justify a limited search; nor can such a constitutionally impermissible search be justified by its result. (See Cunha v. Superior Court, 2 Cal.3d 352, 85 Cal.Rptr. 160, 466 P.2d 704; see also Witkin, Cal. Evidence (1977 Supp.) ch. II, §§ 100-100D.)

Implicit in the conclusion that such tainted evidence must be excluded, is the knowledge that in some instances the criminal may thereby gain freedom. But “inherent in the Fourth Amendment is the determination . . . that evidence shall not be obtained illegally and that rejection of illegal searches will permit some criminals to escape.” (Dis. opn., Peters, J., Krauss v. Superior Court, 5 Cal.3d 418, 430, 96 Cal.Rptr. 455, 463, 487 P.2d 1023, 1031.) That inevitable consequence is a part of the constitutional design itself which places greater emphasis on protecting a free people from overzealous police surveillance than the escape of a guilty few. (See United States v. Di Re, 332 U.S. 581, 585, 68 S.Ct. 222, 92 L.Ed. 210.)

Unquestionably a legitimate concern for the safety of the officer in the performance of his duties requires that he undertake reasonable precautions to prevent serious injury to himself which, under appropriate circumstances, will justify a limited search independent of probable cause to arrest. (Terry v. Ohio, supra, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889.) But in order to lawfully justify such limited intrusion, requisite specific and articulable facts must be shown (cf. People v. Turner, 2 Cal.App.3d 632, 634-635, 82 Cal.Rptr. 763 (search of a panel truck, involved in a recent armed robbery-kidnapping, for a third suspect); People v. Kraps, 238 Cal.App.2d 675, 679-680, 48 Cal.Rptr. 89 (quoting language of People v. Stewart, 189 Cal.App.2d 176, 10 Cal.Rptr. 879, cautioning against failure to conduct a pre-transportation weapons search after an arrest) (weapons search incident to a valid arrest); People v. Martin, supra, 46 Cal.2d 106, 108, 293 P.2d 52 (weapons search of suspects detained for questioning following high-speed automobile chase)) to support a reasonable belief on the part of the officer that he is confronted with an “armed and dangerous individual.” (People v. Scott, supra, 16 Cal.3d 242, 249, 128 Cal.Rptr. 39, 546 P.2d 327.) For the reasons previously discussed, that showing is absent.

The motion to suppress should have been granted. The harmless error doctrine being inapplicable herein (see People v. Rios, 16 Cal.3d 351, 358, 128 Cal.Rptr. 5, 546 P.2d 293), I would reverse the judgment with directions to permit appellant to withdraw his guilty plea, and grant the motion to suppress.


1.  The evidence consisted of the transcript of the direct examination of the arresting officer (Povey) at the preliminary hearing and his testimony at the suppression hearing.

2.  The syllogistic reasoning implicitly pursued was: (1) any white person in this predominantly black-populated area during nighttime was either a victim or perpetrator of crime; (2) appellant did not appear to be a victim; (3) therefore, appellant must be involved in crime (“either narcotics or weapons”).

ELKINGTON, Associate Justice.

WEINBERGER, J. (Retired judge of the superior court sitting under assignment by the Chairperson of the Judicial Council), concurs.

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