PEOPLE v. SMITH

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

The PEOPLE, Plaintiff and Respondent, v. Kevin Leroy SMITH, Defendant and Appellant.

Cr. 21199.

Decided: June 26, 1981

John M. Bishop, Riverside (Court-appointed), for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, John W. Runde, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

A jury's verdict found defendant Smith guilty of robbery in the commission of which he had used a deadly weapon. He had admitted two prior felony convictions. The appeal is from the judgment which was entered upon the jury's verdict and his admissions.

We had earlier affirmed Smith's judgment of conviction. But for the reasons as appear in part I, post, of this opinion we granted his petition for a rehearing. Upon reconsideration, we again affirm the judgment. Our reasons follow.

We state Smith's several appellate contentions as phrased by him.

I. Contention: “The trial court's denial of appellant's motion to suppress his confession was erroneous because the confession was a direct product of the unlawful search and arrest of appellant.”

Prior to our earlier decision on this appeal we were advised by Smith's appellate counsel that although it “is true that the particular reason for reaching this conclusion ... was not argued to the trial court ” (emphasis added), nevertheless “there seems to be no question that the point was preserved for appeal.” Applying well-known principles of appellate procedure, we declined to consider such a contention raised in this reviewing court for the first time. (See People v. Jenkins, 13 Cal.3d 749, 753, 119 Cal.Rptr. 705, 532 P.2d 857 (cert. den., 423 U.S. 860, 96 S.Ct. 115, 46 L.Ed.2d 88); People v. King, 5 Cal.3d 458, 464-465, 96 Cal.Rptr. 464, 487 P.2d 1032; People v. Gallegos, 4 Cal.3d 242, 249-250, 93 Cal.Rptr. 229, 481 P.2d 237.)

Following our earlier resolution of the appeal Smith, as noted, petitioned for a rehearing claiming, among other things, that in confirming Smith's confession's validity we had failed to consider the “legality of the search and arrest.” Despite his appellate counsel's earlier concession, we closely examined the trial record. We found that the issue was, in fact, raised by Smith's trial attorney and accordingly we granted the rehearing.

It is first noted that the trial court had, on Smith's motion to suppress as evidence the physical proceeds of the charged robbery, ruled that the “arrest and search of appellant” had been unlawful. If the evidence was in controversy we are bound by that ruling if it was supported by substantial evidence. But if the relevant evidence was uncontroverted we are not so bound. In such a situation we ourselves “measure the facts ... against the constitutional standard of reasonableness.” (People v. Lawler, 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

We find the following uncontroverted evidence in relation to the questioned arrest and search.

A City of Vallejo, County of Solano, police officer was patrolling, around 11 o'clock one evening, near a 7-11 store and parking area. Such “convenience stores” were the frequent targets of robberies. The store was open for business, and an automobile had “backed in that parking lot” in “a getaway vehicle position.” To the officer it was unusual, and “just looked strange to me and suspicious.” The car's driver's area was unattended, but a person occupied the front passenger seat. Investigating further, the officer observed a “subject”, who was apparently the car's driver, “urinating” on a side of the building. Such conduct was proscribed by section “374” or “374.5” of “a Vallejo Municipal Code Ordinance.” The subject was defendant Smith, and the offense was an “infraction.”

(Such an offender may be released forthwith by an arresting officer giving him written notice to appear in court, except when the “person could not provide satisfactory evidence of personal identification.” (Pen.Code, ss 853.5, 853.6, subd. (j)(5).) In the latter event the offender will be arrested, “booked by the arresting agency ” (Pen.Code, s 853.6, subd. (i); emphasis added), and thereafter treated in accordance with law.)

The officer accosted the subject who said his name was Smith. He then “requested some identification from him; he stated he had none.” According to the officer (and the clearly implied directions of Penal Code section 853.6); “I wanted to identify him. If he qualified, cite him for the violation of urinating in public.... Before we can cite and release somebody, they have to (have) ... good identification. (If they have none,) then they're taken to the station and eventually booked.” It was “normal procedure to seek some sort of confirmation other than just taking the person's word for it.”

At that point the officer was concerned for his safety because of the “time of night,” the “crime problem in that particular area,” “(j)ust everything; the car backed in, him alongside of the building, just his dress and everything else; I didn't want to be talking to him and him have a weapon on him.” “I patted him down for weapons before we went any further.”

The pat-down weapons search uncovered no weapon. But in Smith's rear pocket a wallet was felt. The officer “took it out and put it on the hood of the police car,” without otherwise examining it. He told Smith: “Why didn't you open your wallet and see what we have for identification.” Smith, himself, went through the wallet, apparently looking for identification. A Visa card “was in plain view when he opened his wallet, when he was going through it.” The officer asked that he remove it, which he did. He handed it to the officer who then noticed that it was in a name other than Smith.

An on-the-scene radio communication by the officer disclosed that the Visa card and the automobile driven by Smith had been reported stolen earlier that day. Smith was then arrested on probable cause to believe that he was in knowing possession of stolen property.

On the foregoing evidence the trial court observed: “I can understand the officer doing what he did for the reasons that he cited.... However, ... there was nothing threatening in his conduct whatsoever.... So it seems to me, the officer had no right, as I see, to either take out the object itself or require the defendant to take the object out.” The court thereupon suppressed, as noted, the stolen wallet and its contents including the Visa card, and the stolen automobile.

The trial court's comment must reasonably be interpreted as its conclusion that the police officer's conduct was “understandable” and thus reasonable, except for the “pat-down” weapons search because “there was nothing threatening in (Smith's) conduct whatsoever.”

We opine that it is not the law that a police officer is barred from protecting himself by a pat-down weapons search unless the person detained, or suspected, has overtly engaged in threatening conduct.

It is instead well settled that in the course of a police investigation, whether or not there be probable cause for arrest, “if circumstances warrant, the officer may conduct a precautionary pat-down search for weapons.” (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, 135 Cal.Rptr. 786, 558 P.2d 872).)

The rule permitting such pat-down searches results from judicial mindfulness of “ ‘the dangers daily faced by the men who bear the burden of policing our streets and highways, and of the fact that even a minor ... citation incident can occasionally erupt into violence.’ ” (People v. Brisendine, 13 Cal.3d 528, 537, 119 Cal.Rptr. 315, 531 P.2d 1099.) “ ‘Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties....’ The courts should do all in their constitutional powers to minimize these risks.” (People v. Superior Court (Kiefer), 3 Cal.3d 807, 829, 91 Cal.Rptr. 729, 478 P.2d 449.)

The rule will be applied where the record shows specific “factors creating a potential for danger to the officers ....” (People v. Superior Court (Brown), 111 Cal.App.3d 948, 956, 168 Cal.Rptr. 915.) Under the above-related facts of the case before us such specific factors were manifest.

The rule is also apposite in circumstances, as here, where for lack of proper identification or other reason, the subject is to be “transported to the stationhouse or other place for further disposition.” (People v. Maher, 17 Cal.3d 196, 199, 130 Cal.Rptr. 508, 550 P.2d 1044.) Where “the exigencies of the situation require that officers travel in close proximity with arrestees, a limited weapons search is permissible even though the charge will ultimately be disposed of by a mere citation.” (People v. Brisendine, supra, 13 Cal.3d 528, 537, 119 Cal.Rptr. 315, 531 P.2d 1099.)

Measuring the uncontradicted facts of the case “against the constitutional standard of reasonableness” (see People v. Lawler, supra, 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621), we conclude that the police officer was reasonably permitted, for his safety, to make the pat-down search of Smith.

But, of course, the instant constitutional inquiry is not ended. A permissible pat-down search must “ ‘be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other hidden instruments ....’ ” (People v. Hill, supra, 12 Cal.3d 731, 746, 117 Cal.Rptr. 393, 528 P.2d 1.) Seizure in the course of such a search of an article neither a weapon nor contraband, such as a wallet, will, at least ordinarily, not be permitted. (People v. Leib, 16 Cal.3d 869, 876, 129 Cal.Rptr. 433, 548 P.2d 1105.)

Nevertheless here, as always in such inquiries, we are concerned with whether the officer's conduct was reasonable. The extent of the intrusion will be balanced against the legitimate needs of law enforcement. “(T)here is ‘no ready test for determining reasonableness ....’ ” (People v. Brisendine, supra, 13 Cal.3d 528, 538, 119 Cal.Rptr. 315, 531 P.2d 1099.) “Each case must be decided on its own facts ....” (Idem.)

In the case before us the officer had a right to demand identification of Smith, whom he had observed violating a city ordinance, and who was apparently the driver of the nearby vehicle. He had been told by Smith that he had no identification. In the course of his lawful pat-down search the officer encountered a wallet, such as ordinarily contains ample identification of its possessor. We opine that it would have been reasonable and thus lawful at that point, to direct Smith to produce some means of identification such as a driver's license or credit card, from his wallet. We find little difference in substance, in the officer's removal of the wallet without looking into it and placing it before Smith with the suggestion, “open your wallet and see what we have for identification.” The added intrusion, if any there was, was minimal.

Upon a balancing of the intrusion against the statutory requirement that without “satisfactory evidence of personal identification” Smith be “booked by the arresting agency” (Pen.Code, s 853.6), few would disagree, we opine, that the balance of reasonableness would weigh heavily in favor of the decision made by the police officer.

And manifestly no constitutional grievance attended the officer's observation of the Visa card which “was in plain view when (Smith) opened his wallet, when he was going through it.” Such an observation of matters in “plain view” is neither a search nor a seizure. (People v. Mack, 27 Cal.3d 145, 150, 165 Cal.Rptr. 113, 611 P.2d 454; People v. Rios, 16 Cal.3d 351, 357, 128 Cal.Rptr. 5, 546 P.2d 293.)

Moreover, we find it to be the settled law of this state that where the police have a right or duty to, and intend to, take an arrested suspect to jail and book him, they may conduct an “accelerated booking search” in the field.

“The reasoning proceeds from the premise that a full custody search is permissible at the stationhouse prior to booking, and therefore it is not a significantly greater intrusion into the sanctity of the person of the arrestee if the search is conducted in the field. We have no quarrel with this rationale if in fact the individual is to be subjected to the booking process.” (People v. Longwill, 14 Cal.3d 943, 948, 123 Cal.Rptr. 297, 538 P.2d 753; emphasis added.) “Where it is shown that a suspect would have been jailed and thus subject to a booking search, the fact that a thorough search of the booking type occurs prior to the actual booking process does not render the search illegal, since no additional or greater intrusion on the privacy of the suspect is involved.” (People v. Bullwinkle, 105 Cal.App.3d 82, 87, 164 Cal.Rptr. 163; and see People v. Superior Court (Simon), 7 Cal.3d 186, 208-209, 101 Cal.Rptr. 837, 496 P.2d 1205; People v. Flores, 100 Cal.App.3d 221, 229-230, 160 Cal.Rptr. 839; People v. Barajas, 81 Cal.App.3d 999, 1008-1009, 147 Cal.Rptr. 195.)

Responding to his instant contention, for these several reasons we find neither unlawful arrest, nor unlawful search, of Smith.

II. Contention: “The trial court erred in excluding evidence that (the victim) had a homosexual relationship with appellant because such evidence was relevant to appellant's state of mind at the time of the offense.”

Uncontroverted evidence at the trial, apart from any conceivably tainted by Smith's several claims of error, disclosed that the robbery victim had been forced at knife point to hand over to Smith his wallet and automobile keys. (Smith, himself, did not testify.)

The claimed error consisted of the trial court's disallowance of Smith's attempted cross-examination of the robbery victim on the subject of the claimed homosexual relationship.

Smith's appellate brief advises us that his defense consisted of “denying he had the necessary specific intent to commit robbery (which) was, at bottom a question of his attitude toward (the victim) on the night of the incident. This mental state would naturally be affected by past sexual relations with (the victim). The evidence was relevant under (Evid.Code, s 210).”

The trial court found the excluded evidence to be of scant, if any, relevance or probative value; it was properly excluded under the discretionary powers conferred by Evidence Code section 352. Assuming error, but only arguendo, we would be obliged to declare it harmless under the criteria of the state's Constitution, article VI, section 13, People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243 (cert. den., 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55), and Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.

III. Contention: “Appellant's confession was involuntary as a matter of law because it occurred when police officers renewed interrogation of appellant after he had asserted his Miranda rights.” (Emphasis added.)

Upon Smith's arrest, the arresting officer explained to him his constitutional rights as delineated by Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), including his right to counsel. He indicated no desire to have an attorney at the questioning or otherwise, simply stating that “he did not want to talk” with the officer.

Smith's arrest, as noted, took place in Solano County. The Visa card, and automobile driven by him, had been reported stolen in a Contra Costa County robbery perpetrated a few hours earlier. Contra Costa County authorities were promptly notified, and they forthwith dispatched a detective sergeant to the place of Smith's confinement, the Solano County jail. The officer, having no knowledge of the previous Miranda admonition and Smith's stated wish to remain silent, again “Mirandized him.” Smith said he want to talk to the officer, and his here challenged confession ensued. There is no evidence, or even contention, of bad faith of the Contra Costa County officer in the circumstances of Smith's confession.

Following a hearing on Smith's motion to suppress his confession the superior court found no “police harassment” and concluded it to be the law that “the question of whether the confession is a product of free will ... must be answered on the facts of each case; no single fact is dispositive.” The court then found that Smith, as a matter of fact, had freely and voluntarily waived his Miranda right to remain silent when questioned by the Contra Costa County officer.

Smith argues only that by operation of People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625, and People v. Pettingill, 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108, any such continued interrogation after the suspect has once declined to waive such rights, is invalid, regardless of the circumstances and as a matter of law, unless he had himself voluntarily initiated it. The cited authority, he insists, declares such an absolute “rule for California, holding that such an examination of all the surrounding circumstances afforded insufficient assurance that such statements would be voluntary, and involved a waste of both trial and appellate court time in dissecting the surrounding facts.”

We conclude that Smith incorrectly construes Fioritto, Pettingill and the related law of Miranda.

It is true that a “heavy burden” rests upon the prosecution at all times “to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination ....” (Miranda v. Arizona, supra, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694.)

It is “a relatively absolute rule against further interrogation where the right to remain silent has once been asserted and the defendant has remained in custody, unless the further interrogation is initiated at the request of the suspect.” (People v. Borba, 110 Cal.App.3d 989, 996, 168 Cal.Rptr. 305; emphasis added.) But nevertheless, under such circumstances, whether the defendant did on the second occasion waive his Miranda rights is not a question of law but instead remains a question of fact for the trial court (People v. Lara, 67 Cal.2d 365, 392, 62 Cal.Rptr. 586, 432 P.2d 202 (cert. den., 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407); In re Eduardo G., 108 Cal.App.3d 745, 756, 166 Cal.Rptr. 873; People v. McFarland, 17 Cal.App.3d 807, 816, 95 Cal.Rptr. 369; People v. Brockman, 2 Cal.App.3d 1002, 1008, 83 Cal.Rptr. 70), to be determined upon the entire record (People v. Lara, supra, p. 376, 62 Cal.Rptr. 586, 432 P.2d 202; In re Steven C., 9 Cal.App.3d 255, 268, 88 Cal.Rptr. 97; People v. Nunez, 7 Cal.App.3d 655, 660, 86 Cal.Rptr. 707; People v. Brockman, supra, p. 1008, 83 Cal.Rptr. 70), and after consideration of all of the facts and circumstances (In re Eduardo G., supra, p. 756, 166 Cal.Rptr. 873; In re Steven C., supra, p. 268, 88 Cal.Rptr. 97; People v. Brockman, supra, p. 1008, 83 Cal.Rptr. 70).

Among the factors to be considered by the trial court in determining whether upon such a second interrogation an accused voluntarily and intentionally waived his Miranda right to remain silent are: whether the police exerted pressure on defendant to confess, or he “knew his rights (and) had asserted them when first arrested,” or in “the interim he had an opportunity to carefully consider his predicament and to seek any support needed personal or professional to continue asserting his rights, if he so chose.” (People v. Mack, supra, 27 Cal.3d 145, 154, 165 Cal.Rptr. 113, 611 P.2d 454.) Other such factors have been stated as: “(1) the period of time intervening after questioning is first terminated ...; (2) whether the subsequent interrogation is initiated by the police solely to obtain a statement or is also motivated by outside factors ...; (3) the extent of subsequent warning and explanation of rights before a second questioning commences ...; (4) whether police conduct involves only reinstituted questioning or also includes an inducement to confess, albeit, a proper one; and (5) the circumstances under which the first warning of Miranda rights was given and the rights asserted ....” (People v. Lopez, 90 Cal.App.3d 711, 718-719, 153 Cal.Rptr. 541, and see authority there collected.)

The purpose of the Fioritto rule is to prevent the police from “increasing the pressures on the suspect to confess in order to end his forced isolation and ‘get them off my back.’ ” (People v. Pettingill, supra, 21 Cal.3d 231, 249, 145 Cal.Rptr. 861, 578 P.2d 108.) In effectuating such a purpose the police and trial courts will consider “the letter and spirit of these laws....” (Id., p. 243, 145 Cal.Rptr. 861, 578 P.2d 108.) And when the total facts and circumstances of the second interrogation “show clearly and convincingly ” (People v. Brockman, supra, 2 Cal.App.3d 1002, 1008, 83 Cal.Rptr. 70; emphasis added) that the accused did relinquish his rights “knowingly, intelligently and voluntarily” the prosecution will have met the heavy burden imposed upon it.

And we consider the above mentioned recent case of the state's high court, People v. Mack, 27 Cal.3d 145, 165 Cal.Rptr. 113, 611 P.2d 454. There, after an accused had declined to waive his Miranda rights, a confession under subsequent police interrogation uninitiated by him but following his clear and convincing waiver of such rights, was found constitutionally valid.

We find a clearly implied confirmation of this principle in the recent high court case of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). There Edwards, upon a police officer's Miranda admonition, had “invoked both his right to remain silent and his right to counsel ....” The next morning, Edwards not having been furnished counsel, colleagues of the officer endeavored to see him. He “replied that he did not want to talk to anyone.” He was told “ ‘he had’ ” to talk with the officers, who then informed him once more of his Miranda rights. This time, without further ado, Edwards talked to the officers, and implicated himself in the crime of which he was later convicted.

The Edwards court chose not to consider whether Edwards had, upon the second Miranda admonition, “knowingly, intelligently and voluntarily” waived his right to remain silent. Instead, relied upon was its earlier authority which had “strongly indicated that additional safeguards are necessary when the accused (as had Edwards) asks for counsel; ...” It reconfirmed Miranda's “ ‘rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights ...’ ... to remain silent and to be free of interrogation ‘until he had consulted with a lawyer,’ ” unless he has in some uncoerced way expressly “initiated the meeting,” and waived that right. (—- U.S. at ——, 101 S.Ct. at 1885.) Nowhere did the court modify or change the above-noted rule, here applied by the superior court, that whether an accused upon a second Miranda admonition, knowingly and intelligently waived the right to remain silent he had invoked at the first, is a question of fact to be affirmatively established under a heavy burden of proof.

Contrary to Smith's contention we conclude that this state's Fioritto rule is not an absolute, requiring as a matter of law that all police interrogation uninitiated by an accused who had previously declined to waive, but subsequently did waive, his Miranda rights, be deemed invalid. Nor in such a case will trial and appellate courts refuse, as urged by Smith, to consider “the surrounding facts” in order to determine whether the subsequent waiver was truly free, voluntary and intentional.

“ ‘(T)he trial court's ruling on a Miranda issue may not be set aside by us unless it is ”palpably erroneous.“ ‘ ” (In re Eric J., 25 Cal.3d 522, 527, 159 Cal.Rptr. 317, 601 P.2d 549.) Under this test we find no merit in the instant contention.

IV. Contention: “The judgment must be reversed because the trial court failed to find the confession was voluntary beyond a reasonable doubt.”

People v. Jimenez, 21 Cal.3d 595, 609, 147 Cal.Rptr. 172, 580 P.2d 672, made certain the standard for determining voluntariness of a confession as that of proof beyond a reasonable doubt. And the court further held that “given the uncertainty as to the appropriate standard of proof (at the time of its decision), we do not think it can be presumed that the trial court applied the correct standard in those cases in which the record is silent in this regard.” The court's obvious purpose was that in view of the past uncertainty of the proper evidentiary standard, it would not presume then or until the uncertainty might reasonably be deemed removed from, as here, a silent record, that the proof beyond a reasonable doubt standard had been followed.

People v. Jimenez had been decided and published approximately 18 months before Smith's trial, and its rule had become well settled. In such a case “it is presumed that the trial judge applied the appropriate standard and no articulation is required.” (In re Fred J., 89 Cal.App.3d 168, 175, 152 Cal.Rptr. 327; and see Ross v. Superior Court, 19 Cal.3d 899, 914-915, 141 Cal.Rptr. 133, 569 P.2d 727.)

We observe no purpose to depart from the long-established principle that a ruling of a trial court will ordinarily be presumed correct and in accordance with existent legal principles and authority. (See Denham v. Superior Court, 2 Cal.3d 557, 564-565, 86 Cal.Rptr. 65, 468 P.2d 193; Minardi v. Collopy, 49 Cal.2d 348, 353, 316 P.2d 952; People v. Sparks, 262 Cal.App.2d 597, 600-601, 68 Cal.Rptr. 909.) “ ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court, supra, p. 564, 86 Cal.Rptr. 65, 468 P.2d 193.) We presume that the trial court properly adhered to People v. Jimenez.

The judgment is affirmed.

I respectfully and reluctantly dissent, opining that when the trial court rightly concluded that the wallet seizure and search and resultant arrest were illegal, the confession also should have been excluded. It in my view (1) was a direct product of impermissible intrusion and (2) was obtained in violation of California's stringent self-incrimination protections.

I

The Wallet Seizure

Unquestionably, once it is shown that a suspect would have been jailed, and thus subjected to a booking search, the fact that a search of that type occurs prior to the booking process does not render the search illegal. (People v. Bullwinkle (1980) 105 Cal.App.3d 82, 87, 164 Cal.Rptr. 163; People v. Barajas (1978) 81 Cal.App.3d 999, 1008, 147 Cal.Rptr. 195.) Here, however, according to his own testimony, Officer Tucker never formed or expressed any intent to arrest the defendant until his possession of a reportedly stolen credit card was established by the premature removal of Smith's wallet.

The detention and weapons pat-down are not challenged on this appeal, nor could they be found unreasonable. (Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Szabo (1980) 107 Cal.App.3d 419, 430, 165 Cal.Rptr. 719.) When, however, the officer detected that which he recognized to be a wallet, rather than a weapon, and withdrew it from defendant's pocket, he exceeded the limits imposed by controlling cases. (Sibron v. New York (1968) 392 U.S. 40, 65, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917; People v. Leib (1976) 16 Cal.3d 869, 875, 129 Cal.Rptr. 433, 548 P.2d 1105; People v. Brisendine (1975) 13 Cal.3d 528, 544, 119 Cal.Rptr. 315, 531 P.2d 1099; People v. Mosher (1969) 1 Cal.3d 379, 394, 82 Cal.Rptr. 379, 461 P.2d 659.)

“Unless the officer feels an object which a prudent man could believe was an object useable as an instrument of assault, the officer may not remove the object from the inside of the suspect's clothing, require the suspect to take the object out of his pocket, or demand that the suspect empty his pockets.” (People v. Mosher, supra, 1 Cal.3d at p. 394, 82 Cal.Rptr. 379, 461 P.2d 659.)

It might seem sensible to approve the wallet seizure and search as a quest for evidence of identification, but the holdings in point disallow such rationale. In People v. Collins (l970) 1 Cal.3d 658, 665, 83 Cal.Rptr. 179, 463 P.2d 403, a suspect's lack of identification did not justify bypassing a pat-down for a more extensive intrusion. In People v. Millard (1971) 15 Cal.App.3d 759, 763, 93 Cal.Rptr. 402 (disapproved on other grounds in Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 589, 156 Cal.Rptr. 198, 595 P.2d 975) the identification purpose was found inadequate to justify removal and inspection of a wallet belonging to a defendant who had been arrested for public drunkenness.

I agree with my colleagues that Officer Tucker had valid grounds (public urination and failure to produce identification) upon which he could have arrested and conducted an incidental search of appellant's person. The actual arrest, however, was for unlawful possession of stolen property, now sought to be justified by what the impermissible intrusion produced. The trial judge having heard the evidence, rejected the suggestion that defendant probably would have been arrested in any event, with “inevitable discovery” of all evidence, as overly speculative.

The inadmissibility of appellant's next morning confession to Sergeant Hisey therefore appears to be compelled by People v. Johnson (1969) 70 Cal.2d 541, 545, 75 Cal.Rptr. 401, 450 P.2d 865, cert. den. 395 U.S. 969, 89 S.Ct. 2120, 23 L.Ed.2d 758, disapproved on other grounds, People v. DeVaughn (1977) 18 Cal.3d 889, 899, 135 Cal.Rptr. 786, 558 P.2d 872: “... where a confession is induced by illegally seized evidence, the confession is subject to exclusion as fruit of the poisonous tree.” (Wong Sun v. United States (1963) 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441.) There were no evident attenuating circumstances here sufficient to purge the taint of the illegal search.

“Attenuation,” the trial court's reason for admitting the confession, refers to the purging of a taint. In Brown v. Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, there was a listing of the factors to be considered when determining in any given case whether there has been sufficient attenuation: 1) temporal proximity between illegality and the challenged evidence; 2) presence or absence of intervening circumstances, and 3) purpose and flagrancy of official misconduct. No single factor suffices in itself, including Miranda warnings alone, following an illegal arrest. (Brown v. Illinois, supra, at p. 601-2, 95 S.Ct. at 2260-61.)

Under California law the improper introduction into evidence of a confession, as distinguished from an admission, is reversible error per se, no matter how overwhelming other evidence of guilt may be. (People v. Randall (1970) 1 Cal.3d 948, 958, 83 Cal.Rptr. 658, 464 P.2d 114; People v. McClary (1977) 20 Cal.3d 218, 230, 42 Cal.Rptr. 163, 571 P.2d 620.)

II

Self-Incrimination

As an additional ground for attack upon the admission of the confession into evidence, defendant points to his express invocation of his privilege against self-incrimination when Officer Tucker commenced interrogation following the arrest. (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)

In this context observations from In re Roland K. (1978) 82 Cal.App.3d 295, 299 and 301, 147 Cal.Rptr. 96, are pertinent: “In a long line of cases the California Supreme Court has held that once a suspect has indicated directly or indirectly that he does not wish to waive his privilege against self-incrimination, the police cannot lawfully continue or renew the interrogation, even though he is again given his Miranda warnings prior to the new or subsequent interrogation, and any statement elicited thereafter is inadmissible because in violation of the principles of Miranda and the privilege against self-incrimination of the California Constitution. (People v. Pettingill, 21 Cal.3d 231, 238, 243 (145 Cal.Rptr. 861, 578 P.2d 108) ...; People v. McClary, 20 Cal.3d 218, 226 (142 Cal.Rptr. 163, 571 P.2d 620) ...; People v. Enriquez, 19 Cal.3d 221, 237-238 (137 Cal.Rptr. 171, 561 P.2d 261) ...; People v. Disbrow, 16 Cal.3d 101, 104-106 (127 Cal.Rptr. 360, 545 P.2d 272) ...; People v. Superior Court (Zolnay), 15 Cal.3d 729, 735-737 (125 Cal.Rptr. 798, 542 P.2d 1390) ...; People v. Superior Court (Keithley), 13 Cal.3d 406, 412 (118 Cal.Rptr. 617, 530 P.2d 585) ...; People v. Carr, 8 Cal.3d 287, 297 (104 Cal.Rptr. 705, 502 P.2d 513) ...; People v. Burton, 6 Cal.3d 375, 384 (99 Cal.Rptr. 1, 491 P.2d 793) ...; People v. Randall, 1 Cal.3d 948, 955-958 (83 Cal.Rptr. 658, 464 P.2d 114) ...; People v. Ireland, 70 Cal.2d 522, 535-536 (75 Cal.Rptr. 188, 450 P.2d 580) ...; People v. Fioritto, 68 Cal.2d 714, 719 (68 Cal.Rptr. 817, 441 P.2d 625) ...)”

In People v. Pettingill (1978) 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108, it was held that the California Constitution imposes a stricter standard than is required by Michigan v. Mosley (1975) 423 U.S. 96, 102, 96 S.Ct. 321, 325, 46 L.Ed.2d 313, when police seek to interrogate a suspect who has previously refused to waive his Miranda rights. “... (t)he Fioritto rule, rather than the Mosley test, will remain the rule of decision in all state prosecutions in California.'' (People v. Pettingill, supra, at p. 251, 145 Cal.Rptr. 861, 578 P.2d 108.)

People v. Lopez (1979) 90 Cal.App.3d 711, 153 Cal.Rptr. 541, cited by the majority, looked to Mosley to uphold a confession's admissibility after assertion of Miranda rights, where the second interrogation was not a continuation of the first, was with a different officer on another subject, the second officer was unaware of the earlier invocation, there was no subterfuge, and the suspect again had been fully advised of Miranda rights.

Differing resolutions of this issue are developing both within and between appellate districts and divisions. People v. Borba (1980) 110 Cal.App.3d 989, 996, 168 Cal.Rptr. 305 declined to follow Lopez : “We are further persuaded that we read our Supreme Court correctly by the recent case of People v. Mack (1980) 27 Cal.3d 145 (165 Cal.Rptr. 113, 611 P.2d 454) .... (P) In Mack, the defendant was arrested for receiving stolen property. He was given his Miranda warning and declined to make a statement. He was released from custody. Five or six days after he was released from custody, he was arrested on a charge of murder. He was again given a Miranda warning and confessed. The confession was admitted at trial; defendant was convicted of murder and appealed. (P) The Supreme Court, reaffirming its views in Pettingill, distinguished it from the case at bench on the sole ground that in Pettingill the appellant had been ‘in custody continuously for three days before finally waiving his Miranda rights,’ whereas Mack had been out of custody five or six days before he was rearrested and confessed. (Id., 27 Cal.3d at p. 154, italics added (165 Cal.Rptr. 113, 611 P.2d 454))”

I would hold with Borba. Here, as in In re Roland K., supra, 82 Cal.App.3d 295, 147 Cal.Rptr. 96, because a law officer conducted an interrogation on the morning following an incarcerated defendant's exercise of his Fifth Amendment privilege, the confession then obtained was inadmissible. Its admission was prejudicial per se, and should compel reversal. (People v. Burton (1971) 6 Cal.3d 375, 384, 99 Cal.Rptr. 1, 491 P.2d 793.) The per se classification, logical or no, precludes consideration of the harmless error test of California Constitution, Article VI, section 13.

My interpretation of Edwards v. Arizona (1981),** 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 also is at odds with that of my colleagues. The similarities between that case and this one are striking: 1) Each suspect expressly invoked his Miranda rights. 2) The next morning, while still in custody, each was readvised per Miranda and reinterrogated. 3) Neither Edwards nor Smith suggested or requested the second questioning. 4) Neither had interim access to counsel. 5) Each then confessed, “... but what prompted this action does not appear.... His statement ... did not amount to a valid waiver and hence was inadmissible. (Fn. omitted.)” (Edwards v. Arizona, supra, —-U.S. at p. ——, 101 S.Ct. at 1886; emphasis added.)

For these reasons I would reverse.

FOOTNOTES

FOOTNOTE.  FN** Advance Report Citation: 49 U.S.L.Week 4496.

ELKINGTON, Acting Presiding Justice.

NEWSOM, J., concurs.