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

The PEOPLE, Plaintiff and Respondent, v. Roger Bruce BEST, et al., Defendants and Appellants.

Cr. 11829.

Decided: June 09, 1981

Quin A. Denvir, State Public Defender, under appointment by the Court of Appeal, Victoria Sleeth, Deputy State Public Defender and Carolyn Sutton, Panel Atty., San Diego, for defendants and appellants. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Jesus Rodriguez, Deputy Attys. Gen., for plaintiff and respondent.

Appellants Best and Helzer appeal their convictions based on pleas of guilty after motions to suppress evidence were denied.   Pursuant to individual plea bargains, Best was convicted of receiving stolen property (Pen.Code, § 496.1) and Helzer was convicted of burglary (Pen.Code, § 459).   Both contend the evidence sought to be suppressed was the product of an unlawful arrest.

 In Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 96–97, 154 Cal.Rptr. 454, the Court of Appeal for the Fifth District advocated suppression motion pleadings wherein the defense opens, alleging specifically described evidence seized without warrant, the prosecution pleads justification and the defense replies.   The propriety of the whole Wilder scheme, conforming pleading to allocation of burden of proof, is not now before us in the present case.   We are, however, confronted with the question of the minimum requisites of the initial defense pleading.   We hold the defense must identify the evidence to be suppressed and the unlawful invasions of Fourth Amendment rights relied upon with sufficient particularity to advise the court and the People what warrantless searches and seizures the prosecution must justify and for what fruits they must show an independent origin.

On the afternoon of February 7, 1980, San Diego Police Detectives Patrick Flavin and Gregory Clark observed appellant Helzer, a man named Macky Ames, and one other male in a beige truck pull up and park in a Food Basket parking lot.   Their suspicions were aroused because Officer Flavin had previously arrested Helzer in 1978 for burglary and had previously conducted an investigation into Ames' background.   The officers observed a male and a female in a van pull into the lot and park next to the truck.   Officer Clark was able to see three of the men empty the contents of a scarf or bandana into the bed of the truck.   Clark walked by the truck and observed appellant Helzer and the other subjects looking at a large quantity of pennies spread over the bed of the truck.   The truck was followed to 3604 Hondo Drive and then to an apartment at 3177 Elm Street.   Flavin verified the Elm Street address as Helzer's.   The truck and van proved to be registered to individuals with prior records for burglary.

Flavin personally drove by the Elm Street address several times between February 7 and 15.   On one occasion, appellant Best was seen outside the apartment with Macky Ames.

On February 15, a five-officer team staked out Helzer's apartment.   All officers were in radio contact with each other.   At 10:20 a. m. Best drove up, knocked at the apartment door and was admitted.   Ten minutes later, Helzer, Best, and a woman left the residence.   Their car was followed first to a residence where a known narcotics dealer resided and then to a canyon near Parrot and Cedar Streets.   There the occupants appeared to prepare and inject some substance into their arms.   Officer Warnberg reported these observations to the other officers over the police radio.   After seven to ten minutes, the trio returned to the Elm Street residence.

Shortly thereafter, Best and Helzer left the residence and drove to the vicinity of Mission Gorge Road and Zion, where Best dropped Helzer and drove off alone.   Helzer went into the area of an apartment complex.   Best was followed as he drove around the neighborhood and parked in a shopping center parking lot across from the apartment complex.   Within 15 to 20 minutes Helzer came out of the apartment building with his pockets bulging and waited for about five minutes until Best returned to pick him up.   Officers Clark, Reid, Flavin and Puente separately followed the car to a gas station at 40th and El Cajon Boulevard.   Officer Warnberg was dispatched to the apartment building to investigate whether any apartments had been burglarized.

Clark, who was about a block away, reported over the radio that Helzer had gotten out to make a telephone call.   Clark watched for about ten minutes, then circled the block and got tied up in traffic.   Puente was also caught in traffic.   Reid radioed Flavin that Best and Helzer were bending over in the car examining something.   Warnberg reported by radio he had not yet found any burglaries.   Reid then reported to Flavin that Best and Helzer appeared to be getting read to depart.

Flavin, fearful of losing appellants, asked which officer was closest and could stop the car from leaving the station.   In response, Reid drove his car up next to the driver's side of Best's car, pointed his gun directly at Best and announced “Police officer.   Don't move, put your hands on the dash.”   Best testified he also said “You're under arrest for burglary.”   Within seconds, Officers Clark, Puente and Flavin arrived.

Officer Flavin approached the passenger side of the car, intending only to detain Best and Helzer for further investigation.   Inside the vehicle he observed in plain view in Helzer's lap a bandana containing coins.   A screwdriver, a knife and a white sock were on the center console.   More coins were on the floorboard at Helzer's feet.   Flavin knew screwdrivers were common tools among burglars and socks were used to cover the hands to avoid leaving fingerprints.   At that time Flavin ordered Best and Helzer to be taken out of the car and arrested.   Officer Puente and others patted them down and handcuffed them.   At some point in the proceedings, Officer Clark noticed that Helzer was wearing a gold-colored wrist watch.   Appellants suggest the watch was seized during the booking process, but their record citation does not support the proposition.   A bandana, a piece of cloth and a pair of initialled gold cuff links were seized from Helzer's person, but it does not appear when.   A house key, a bandana, fingernail clippers, currency, coins, a screwdriver, a knife and a sock came from the car, but again it is uncertain when they were seized.   Officer Clark advised Best of his Miranda rights at the scene of the arrest.   Best admitted the car was his but denied knowing Helzer, claiming he had picked Helzer up as a hitchhiker 15 minutes earlier.   Best said he had coins in his pocket which were Helzer's and that Helzer had offered to sell some to him.   Officer Clark either removed seven silver coins from Best's pocket, or Best pointed them out and Clark took them.

Five or ten minutes after the arrest, Officer Warnberg advised Flavin a burglary had in fact occurred at the apartment complex visited by Helzer.   He further informed him that a pair of cuff links, a gold watch, a coin purse and some coins were taken.

Appellants moved to suppress evidence pursuant to Penal Code section 1538.5.   The trial court found the appellants' arrests were unlawful because the officers lacked probable cause to believe a burglary had occurred, but that a detention of Best and Helzer was proper.   The court applied the inevitable discovery doctrine and denied the motions to suppress.   The rationale was that the officers could have legally detained Best and Helzer until Warnberg confirmed a burglary had occurred in the apartments.   At that time, the officers could have lawfully arrested the appellants and the search incident to that arrest would inevitably have produced the same evidence.

Best and Helzer contend we should reverse the denial of the suppression motion because the trial court found they were unlawfully arrested at the moment their automobile was surrounded by police.   They rely upon the teaching that we must uphold the trial court's factual determinations, if supported by substantial evidence, and that we should not lightly challenge its legal conclusions.   We accept the invitation and do uphold the finding of an unlawful arrest, as well as the apparently uncontested conclusion that a detention would have been proper at the outset.   However, because of the murky state of the record, we are left far short of a resolution of the issues presented by this appeal.

 Penal Code section 1538.5, subdivision (a), contemplates the moving defendant shall have the burden of identifying the “tangible and intangible things” he seeks to suppress.   In appropriate circumstances this burden can also be discharged by a collective reference to all the property of the defendant seized in a single specified search.  (People v. O'Brien (1969) 71 Cal.2d 394, 401–402, 79 Cal.Rptr. 313, 456 P.2d 969;  see also People v. Superior Court (Pierson) (1969) 274 Cal.App.2d 228, 231–232, 78 Cal.Rptr. 830;  Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 96, 154 Cal.Rptr. 494.)   In the case at bench the motion specified neither the search objected to nor the evidence to be suppressed.   The omission was fatal to a tender of the decisive issues to the trial court and to a claim of error here.

Wong Sun v. United States (1963) 371 U.S. 471, 484–485, 83 S.Ct. 407, 415–16, 9 L.Ed.2d 441, is the seminal authority for the proposition that indirect as well as direct products of “unlawful invasions” of Fourth Amendment rights are to be excluded from evidence.  Katz v. United States (1967) 389 U.S. 347, 351, 88 S.Ct. 508, 511, 19 L.Ed.2d 576, taught us that the Fourth Amendment protects persons, not places, and that it is what a person seeks to keep private that is protected.

In the instant case Best and Helzer assert their arrests occurred when the officers surrounded their car;  that that arrest was unlawful and was so found by the trial court;  and that the fruits of the unlawful arrest must be suppressed.   The trial court also correctly found a detention would have been lawful at the time of the arrest.   The unlawful invasion of the defendants' Fourth Amendment rights consisted of the substitution of the arrest for the detention.   Since a search other than a weapon pat-down may be made incident to an arrest, but not a detention, the fruits of any search or seizure made incident to the initial arrest might be subject to suppression.

Almost immediately after the initial arrest, the officers made additional observations in the automobile, upon which they and the prosecutor relied to provide probable cause for arrest.   These observations would have been identical had the occupants of the automobile been merely detained, rather than arrested.   They are not a product of an unlawful invasion of defendants' Fourth Amendment rights.   Defendants have not tendered, and the trial court did not explicitly decide, the question whether there was probable cause for arrest after these observations.

The trial court found that after the officers learned there had in fact been a burglary, an arrest was lawful.   Apart from their overbroad assertion that everything following an illegal arrest is inadmissible, defendants do not contest this finding.   Unless an arrest following receipt of information of the burglary would be tainted by the previous arrest in lieu of detention, searches and seizures based upon such an arrest would be lawful.   The trial court's reasoning implies a finding that knowledge of a burglary added to the information available when the car was surrounded would justify the arrest.   The information there had in fact been a burglary was in no way a “fruit” of the unlawful arrest.   The intervening events therefore could not taint searches or seizures made after the officers learned of the burglary.

Defendants' moving papers in the court below did not specify the evidence sought to be suppressed.   It is unclear from the record whether the wrist watch was seized at all or just when it was observed.   The cuff links were seized, but is unknown whether at the scene or during booking.   It is uncertain whether Best's statements were made and the coins from his pocket were “volunteered” before or after the police learned of the burglary.   It does not appear when the items seen in the car were seized.

The pleadings and the record in the instant case are inadequate.   The finding of the trial court that there was an unlawful arrest is supported by substantial evidence and is sustained.   The crucial question is whether that poisonous tree bore fruit.   On that issue the defense has not pleaded or proven facts to put the People to their burden of justification.   It is not enough to show merely that searches and seizures came later in time than an unlawful arrest.

It should not be assumed the state of the record reflects adversely upon the representation afforded by defense counsel.   On the contrary, counsel by focusing the attention of the trial court upon the initial apprehension and the doctrine of inevitable discovery appears to have selected his client's strongest position.   Exploration of the details would probably only have weakened it.   This was a good try for which defense counsel should not be faulted.   The fault, if any, lies in the failure of the courts to adopt and enforce effective rules of pleading and practice.   Such rules will enhance the formulation and presentation of the issues in justicable form.   They also will save defense counsel from the necessity of embarking on such gambits as this simply because the system allows them.

The judgments are affirmed.

LANGFORD, Associate Justice (Assigned).

COLOGNE, Acting P. J., and WORK, J., concur.