PEOPLE v. CALLOWAY

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Court of Appeal, Second District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Appellant, v. Eric Nathaniel CALLOWAY, Defendant and Respondent.

Cr. 42255.

Decided: July 14, 1982

Ira K. Reiner, City Atty. by Ray L. Hart, Deputy City Atty., for plaintiff and appellant. Randolph & Levanas by Donald C. Randolph, Los Angeles, for defendant and respondent.

We caused this matter to be transferred to us (Cal.Rules of Court, Rules 62–63) after the Appellate Department of the Los Angeles Superior Court had affirmed a Municipal Court's order suppressing the proofs of defendant Eric Calloway's guilt and dismissing the action that had charged him with possessing phencyclidine (PCP) in violation of Health and Safety Code section 11377.

The determinative facts were never in dispute.   At approximately 9 p. m. on June 10, 1980, Los Angeles Police Officer Jesse Givens and his partner were engaged in routine patrol activities in the area of Figueroa and 91st Place in Los Angeles when they observed in a dark parking lot a car occupied by three males positioned approximately 25 feet from the entrance to a closed market.   While the officers were conducting a traffic stop nearby they saw one of the men exit the car, purport to briefly use a public telephone and then return to lean against the hood of the vehicle.   When the officers chanced to make a second traffic stop approximately 45 minutes later, they noticed that the same car was still present and that again one of the occupants was by the telephone.

Realizing that a burglary might be in progress, and since the parking lot was located near “Colden Avenue [a street] well known throughout the City of Los Angeles as Sherm Alley where probably the largest amount of Sherman cigarettes or PCP cigarettes are sold,” Officer Givens' interest was aroused.   He circled the block and when the car and its occupants made no move to depart he drove his official unit into the lot and parked two to three feet “[o]ffset to the rear of it.” 1  Even as he silently approached the vehicle he could readily detect the unique and pungent odor of PCP wafting from its open window.2  He, therefore, directed the beam of his flashlight upon its two occupants and instructed them to exit.   Defendant responded by vainly attempting to conceal three clear plastic bags containing PCP soaked cigarettes under the carpeting on the vehicle's front floorboard.   This contraband was recovered and forms the basis for the present prosecution.

 The trial court quite properly found no flaw in any action taken by Officer Givens after he had recognized the PCP's unmistakable bouquet.   Rather, it held that merely by coming within smelling distance of a citizen in a public place the officer had perpetrated a constabulary wrong of constitutional dimensions.   This conclusion, of course, was erroneous.   Few, if any, of the myriad rules concerning police conduct are more well established than that which holds that observations made by an officer from a place where he has a right to be do not amount to a search in the constitutional sense.   (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634, 108 Cal.Rptr. 585, 511 P.2d 33.)

To date, at least, the men and women we employ to maintain the peace and to prevent crime as well as to apprehend criminals after the fact, are not regarded as trespassers when they venture forth in public places.   They certainly need not establish “probable cause” in order to justify their presence upon the parking lot of a market whose security they are duty bound to protect.   Conversely, a citizen who elects to publicly traffic in a contraband as malodorous as PCP cannot reasonably expect others to maintain an olfaction-free zone of sufficient dimension to insure the privacy his illicit operation necessarily requires.3

For reasons not apparent from the present record the trial court and the appellate department of the Superior Court expended considerable effort pondering what constitutes a “detention” and whether or not the presence of three men near a telephone in a closed market's darkened parking lot for 45 minutes warranted any official nosiness.4  While we have no doubt that it does, and that no “detention” here occurred, such questions, though engaging, are not relevant to any issue presently tendered.

 Concededly, it has long been established that when officers are illegally threatening to arrest and search a suspect, and he attempts to divest himself of incriminating evidence that he reasonably believes will inevitably be discovered in any event, his efforts do not constitute such an “abandonment” or voluntary exposure as would waive his constitutional rights.  (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23.)   The present highwater mark in the application of this doctrine appears to be the enigmatic decision in People v. Menifee (1979) 100 Cal.App.3d 235, 160 Cal.Rptr. 682.   There certain police officers and certain possessors of narcotics were known to each other from past contacts.   The court held that in the instance there under consideration, it was possible to uphold a trier of fact's conclusion that when the former pursued the latter, the latter's attempt to conceal their drugs was but a reasonable response to some threatened, but unspecified, police action.

Unfortunately, the Menifee decision does not inform the reader what facts stemming from the past confrontations of the parties warranted the suspects in so believing, i.e., that a search of their persons was imminent.   In the ordinary situation, of course, the mere approach of a police officer would not produce such a sense of hopelessness in a citizen that he would, or rationally could, conclude that it was necessary to rapidly jettison his personal property.   Even a true “detention” for purposes of questioning would not suggest that the privacy of one's pockets was about to be invaded.

Even more hoary than the rule of Badillo, supra, is that announced in People v. Michael (1955) 45 Cal.2d 751, 754, 290 P.2d 852:  “[I]t is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes.   Such inquiries, although courteously made and not accompanied with any assertion of a right to enter or search or secure answers, would permit the criminal to defeat his prosecution by voluntarily revealing all of the evidence against him and then contending that he acted only in response to an implied assertion of unlawful authority.”   Or as elsewhere phrased:

“ ‘There can be no doubt that a police officer in the performance of his duties shares the right of all persons to address another on the public streets, or at least that there is no constitutional proscription of his so doing.  “There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.”  [Citation.]  And so long as his conduct does not constitute a “detention,” a police officer may talk to anyone in a public place, “something that any person would lawfully be permitted to do, or try to do.”  [Citation.]  Unless there is some sort of a temporary restraint or holding in custody, there is no detention.   [Citations.]’  [Citation.]”  (In re Danny E. (1981) 121 Cal.App.3d 44, 49, 174 Cal.Rptr. 123.)

 However, as we have heretofore noted, such decisions and the entire question of whether or not the officers' mute approach here could conceivably be classified as a detention or a “threatened detention” 5 are not relevant to the present proceeding.   This is so because here the fragrant ether fumes that floated forth from defendant's vehicle were not the result of any action he or his companions took in response to Officer Givens' public appearance.6  The aromatic nature of products soaked with PCP is an innate characteristic of that deadly contraband.   Therefore, its presence in the evening air preceded the officer's nosy propinquity and, consequently, could not have been the “fruit,” i.e., the product, of any police action licit or no.

The order of dismissal and the order granting defendant's motion to suppress are reversed.

FOOTNOTES

1.   Officer Givens testified that the car “was in the driveway.   It wasn't blocking the sidewalk.   It was just to the west of the sidewalk.   The front bumper was almost to it, to the sidewalk itself.   But you could drive behind the vehicle and go out the driveway ․”

2.   Officer Givens described his approach in the following manner:“A. As I approached the vehicle, I observed that there were two male occupants inside the vehicle.   One seated in the right front and the defendant seated at the counsel table seated in the right rear.   The window to the vehicle, the right front door, was down.   And I could smell the strong odor of PCP emitting from within the vehicle itself.“Q. Now at this time when you smelled this odor, had you said anything to the defendants?“A. Not at that time.   No, sir.“Q. Did you make any motions to the defendants or any motions in any way, any hand commands or anything like that?“A. Prior to?“Q. At the moment that you smelled—in other words, did you—let me rephrase that, Officer.  [¶]  Did you have any contact at all in any shape, way, or form with the defendants when you made that—when you smelled?“A. Up until the time I smelled the PCP coming from the vehicle, I had not spoken or made any type of hand signal of any type to the defendant.“Q. At the time you approached him, did you have any intention of making any arrests?“A. No, sir.“Q. Before you smelled it?“A. No, sir.“Q. Were you there merely for investigation?“A. That is correct, sir.”

3.   See People v. Mayberry (1982) 31 Cal.3d 335, 341, 182 Cal.Rptr. 617, 644 P.2d 810.

4.   The questions posed by the appellate department in its order of certification were:“1. What contact between a police officer and another person is sufficient in law to constitute a detention cognizable under the Fourth Amendment to the United States Constitution and the California equivalent of that amendment?  [¶]  2. If criminal evidence is observed as the result of a peace officer approaching a person to investigate that person's possible involvement in criminal activity, there being no objectively reasonable basis for suspecting such activity beyond the subjective hunch or suspicion of the officer, is such evidence subject to suppression?”

5.   The courts below seem to have perceived something sinister in the fact that when the officers moved towards defendant's vehicle they separated in order that one might provide protection for the other.   Regretably the streets in Los Angeles are such that even its citizenry is advised to “Follow well-lighted, well-traveled streets.   Travel with companions, especially after dark.”  (Emphasis added.)  (“Are You Fed Up With Crime? ” published by the Junior League of Los Angeles and LAPD.)   That our peace officers themselves exercise similar caution in the performance of their duties would not seem a practice likely to undermine either the federal or the California Constitution.

6.   In fact defendant neither testified nor in any other fashion asserted that he was even aware of the officers' presence until directed to exit his vehicle.

GATES, Associate Justice.

ROTH, P. J., and COMPTON, J., concur.