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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Sergio MARTINEZ, Defendant and Appellant.

No. B020555.

Decided: April 14, 1987

Rosana M. Selesnick, Encino, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Robert R. Anderson and Gary R. Hahn, Supervising Deputy Attys. Gen., for plaintiff and respondent.

Defendant and appellant Sergio Martinez (appellant) was convicted of possessing cocaine in violation of Health and Safety Code section 11350, subdivision (a).   Following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, appellant pled guilty as charged.   He was sentenced to probation for a three-year period, and was fined $50 pursuant to Health and Safety Code section 11372.5, and $100 pursuant to Government Code section 13967, subdivision (a).   He appeals from the judgment following the entry of the guilty plea.

Appellant maintains that the trial court erred in denying his motion to suppress.   He contends that the warrantless identification search of his wallet violated his Fourth Amendment rights and cannot be justified on the basis of any recognized exception to the warrant requirement or as incident to a lawful arrest.   We agree with appellant that the search was unlawful and that the evidence obtained as a product of the search should have been suppressed.

On January 1, 1986, Los Angeles Police Officer Patrick Cronin and his partner were patrolling in their squad car when they observed a blue 1971 Ford LTD illegally parked in a bus zone on the corner of Vermont and Jefferson Streets.   The Ford's occupants, Jaime Alejandro Soberanis (not a party to this appeal) and appellant glanced in the direction of the patrol car.   The Ford then pulled out of the bus zone and into traffic.   While following the suspect vehicle, the officers ran a check on its license through their on-board computer revealing one misdemeanor warrant and one moving violation.   The officers stopped the Ford to issue a parking citation.

Prior to leaving the patrol car, Officer Cronin saw the driver, Soberanis, lean forward and appear to place something under the dashboard or on the floorboard, then lean back and resume a normal driving position.   Officer Cronin testified that the driver's movements caused him to believe that the driver had concealed either a weapon or contraband.   The officers ordered Soberanis and appellant to step out of the car and onto the sidewalk.   They searched the suspects for weapons, recovering a knife from appellant's person.1  Officer Cronin testified that he was satisfied that neither appellant nor Soberanis possessed further weapons.   Officer Cronin then approached the driver's side of the vehicle while his partner stood on the passenger side near the suspects.   Officer Cronin testified that he “immediately smelled a strong chemical odor commonly associated with PCP” emanating from the driver's open door.   He searched the vehicle and recovered two glass vials that had been concealed under the driver's side of the dashboard.   The vials contained a liquid (or its residue) resembling Phencyclidine (PCP).   Soberanis was then handcuffed and arrested for possession of PCP for sale.

The record is unclear, but at some point prior to Soberanis's arrest, the officers realized that appellant and Soberanis could neither speak nor hear.   Nevertheless, appellant somehow managed to understand that the officers desired to see identification.   Appellant pulled out his wallet, removed an identifying document and gave it to Officer Cronin.   At the preliminary hearing, Officer Cronin could not recall the exact form of the identification appellant had given him, nor its approximate shape or size.   He did recall, however, that the document contained appellant's name, which the officer ran through the computer for outstanding warrants.

A possible warrant was returned, but because Martinez is such a common Hispanic surname, the officer could not be sure that appellant was in fact the individual named on the warrant.2  Officer Cronin testified that he returned to appellant, hoping to obtain other documents that would identify appellant as the man sought.   By this time, appellant was handcuffed.3  The officer reached into appellant's pocket and removed his wallet.   Officer Cronin leafed through appellant's wallet and found a brown paper bindle.   The officer could not see what was inside the bindle, but suspected that it might contain some form of contraband.   He opened the bindle and discovered a white powdery substance later determined to be cocaine.   Appellant was then arrested for possession.

“An appellate court's review of a motion to suppress evidence is ․ governed by well-settled principles.”  (People v. Loewen (1983) 35 Cal.3d 117, 123, 196 Cal.Rptr. 846, 672 P.2d 436.)  “The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution.”  (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)   Because the reasonableness of the questioned search is an issue of law, this court is not bound by the substantial evidence standard, and is entitled to exercise its independent judgment.  (People v. Leyba (1981) 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961.)

 As respondent correctly asserts, the passage of Proposition 8 requires us to apply federal constitutional law to determine the admissibility of evidence for offenses committed after June 9, 1982.   A court may exclude evidence obtained in a search or seizure that violates state constitutional law provided that exclusion is also mandated by the federal exclusionary rule governing violations of the Fourth Amendment.  (In re Lance W. (1985) 37 Cal.3d 873, 896, 210 Cal.Rptr. 631, 694 P.2d 744.)

“The law is well-established 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․  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 [1968] 392 U.S. [1,] 22 [20 L.Ed.2d (889,) 906–907 (88 S.Ct. 1868 [1880] ) ].)’  [Citations.]”  (People v. Loewen, supra, 35 Cal.3d at p. 123, 196 Cal.Rptr. 846, 672 P.2d 436, quoting In re Tony C. (1978) 21 Cal.3d 888, 893, fn. omitted, 148 Cal.Rptr. 366, 582 P.2d 957.)

 There is no question that the initial detention of the vehicle occupied by appellant and Soberanis was proper under the standards described above.   Their automobile was illegally parked in a bus zone, and the officers' subsequent check on the vehicle's license revealed an outstanding warrant and traffic violation.   Further, having observed a furtive gesture, the officers' actions in ordering Soberanis and appellant out of the vehicle were justified.  (See People v. Mickelson (1963) 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658;  People v. Knight (1971) 20 Cal.App.3d 45, 50, 97 Cal.Rptr. 413;  see also Pennsylvania v. Mimms (1977) 434 U.S. 106, 109–111, 98 S.Ct. 330, 332–334, 54 L.Ed.2d 331, 335–337.)

Our specific concern 4 is with the constitutional propriety of the identification search of appellant's wallet.   The People maintain that Officer Cronin's reaching into appellant's pocket and removing his wallet was constitutionally reasonable under the circumstances presented.   Alternatively, they contend that the search can be justified as incident to arrest, although preceding formal arrest, since there was probable cause to arrest appellant prior to the discovery of cocaine on his person.   Ultimately, they contend that the search was justified by the officers' desire to avoid unreasonable risks to their safety.   Our review of the record convinces us that the People's contentions lack merit.

To our knowledge, no federal case 5 has expressly determined the validity of limited identification searches.   A recent California decision, People v. Long (1987) 189 Cal.App.3d 77, 234 Cal.Rptr. 271, upheld a police officer's search of a detainee's wallet where the individual had previously denied possession of any identification.

In Long, the defendant had been detained for questioning after he had been observed conversing in a bar with a young woman who appeared to be underage.   The investigating officer suspected that the defendant was responsible for her unlawful presence in the bar.   The officer asked the defendant to step outside.   The defendant complied and gave the officer his name but insisted that he did not have any written identification on him.   The investigating officer had vast experience recognizing symptoms of drug intoxication, and his observations of the defendant's behavior convinced him that the defendant was under the influence of methamphetamine.   He intended to arrest the defendant for being under the influence of drugs in violation of Penal Code section 647, subdivision (f), but did not do so immediately.

Instead, after noticing what appeared to be a wallet in defendant's pocket, he repeated his demand that the defendant produce identification.   The defendant again denied the possession of identification.   The officer then ordered the defendant to pull out his wallet and check it.   The defendant complied, but turned away, ducking his right shoulder in the process.   The defendant's furtive movement led the officer to suspect that the defendant was concealing evidence or a weapon such as a razor blade.   The officer grabbed the defendant's arm and forced him to leaf through the wallet within the officer's view.   He was now able to observe the contents of the defendant's wallet and noticed several clear plastic bindles commonly associated with methamphetamine packaging.

The defendant completed the check of his wallet and insisted that it contained no identification.   The officer then directed the defendant to surrender the wallet.   The defendant complied and the officer's search of the wallet produced written identification as well as the bindles of methamphetamine.   The defendant was arrested and charged with possession of methamphetamine and being under the influence of drugs.

Noting the “obvious and substantial need for police recording the identity of a person suspected of having committed a crime,” the court held that the “minimal intrusion involved ․ in requiring the production of identification” was reasonable.  (189 Cal.App.3d at p. 88, 234 Cal.Rptr. 271.)   It emphasized the defendant's repeated denial of identification on his person and his intoxicated condition as justifying this conclusion.

 Our review of the record convinces us that the circumstances presented here are clearly distinguishable from those which justified the search in Long.   Unlike the defendant in Long, appellant herein made no attempt to frustrate the officer's efforts to identify him.   He in fact complied with Officer Cronin's initial request for identification despite his inability to communicate verbally.   Appellant was neither intoxicated nor did he make any movements which caused officer Cronin to believe he was concealing evidence or weapons.   Moreover, we have no reason to believe appellant would not have cooperated further had Officer Cronin requested additional identification.   Unfortunately, the officer made no such request.   He simply reached into appellant's pocket, extracted his wallet and searched it—an intrusion far greater than that upheld in Long.

As the United States Supreme Court reminds us, “[t]he scope of the intrusion permitted [during a lawful investigatory stop] will vary to some extent with the particular facts and circumstances of each case.  [T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.   [Citations.]”  (Forida v. Royer (1983) 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229, 238.)   We recognize the difficulties facing Officer Cronin in his attempts to determine appellant's identity.   Appellant's handicap, however, cannot justify the officer's actions.   The Fourth Amendment's protection against unreasonable search and seizure extends equally to the disabled.

Respondent relies heavily on a decision of the Supreme Court of Wisconsin, State v. Flynn (1979) 92 Wis.2d. 427, 285 N.W.2d 710, cited by the California Court of Appeal in Long.  (See People v. Long, supra, 189 Cal.App.3d at pp. 86–87, 234 Cal.Rptr. 271.)   Noting that the question was an “open one,” the Flynn court held that a limited identification search was constitutionally permissible where the suspect refused to produce identification after openly admitting its possession.  (State v. Flynn, supra, 285 N.W.2d at pp. 719–720.)   The court relied on language contained in Adams v. Williams (1972) 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617, authorizing a “brief stop of a suspicious individual, in order to determine his identity ․” and a Wisconsin statute specifically authorizing the police to demand identification of any individual reasonably suspected of being involved in criminal activity as permitting a limited identification search of an uncooperative detainee.  (State v. Flynn, supra, 285 N.W.2d at pp. 716–718.)

The court focused primarily, however, on the defendant's refusal to comply with the officer's request for identification.  “Perhaps most significant is the fact that defendant could himself have substantially avoided the intrusion simply by producing the identification himself as his companion did.   The officers then would have had no reason to reach into his pocket, remove the wallet and search it for identification.   It was his unreasonable refusal to do so that led to the police conduct of which he now complains.”  (Id., at p. 719.)

In State v. Wilcox (1981) 180 N.J.Super. 452, 435 A.2d 569, 570–571, the New Jersey Superior Court followed Flynn and held a limited identification search to be permissible where the suspect produced identification known by the investigating officer to be false.

Here, unlike the suspects in Flynn and Wilcox, appellant was not an uncooperative detainee.   Although unable to speak or hear, he produced identification from his wallet at the officer's request.   Thus, the subsequent search of appellant's wallet cannot be justified on the grounds utilized in Flynn—failure to comply with a lawful request for identification, or Wilcox—the production of false identification.

We believe People v. Williams (1975) 63 Mich.App. 398, 234 N.W.2d 541, represents the proper view of the search of appellant's wallet.   In Williams, the police received a tip that three “suspicious” men were loitering in a motel parking lot during the early evening hours.   When the police arrived, they found the defendant sitting alone in a parked automobile.   The officers asked the defendant to identify himself.   Although claiming he had no written identification, the defendant pulled out his wallet and handed the officers a business card.   The officers requested further identification.   The defendant leafed through his wallet, insisting that the business card was the only identification he possessed.   While the defendant was looking for further identification, one of the officers observed what appeared to be the top half of a driver's license.   The officer then took the wallet from defendant's possession.   The license was in the name of another individual and defendant was unable to explain how he had come to possess it.   The officer continued to search the wallet and discovered several credit cards belonging to other persons.   After confirming that the cards had been reported stolen, the defendant was arrested.

The Court of Appeals of Michigan held that the search of defendant's wallet violated the Fourth Amendment because it did not fall within the recognized exceptions to the warrant requirement.  (People v. Williams, supra, 234 N.W.2d at pp. 543–544.)   The search could not be justified as incident to arrest since the facts and circumstances known to the officers could not establish probable cause.   Nor, said the court, could the search be justified as a protective stop and frisk since the object of the search was not a weapon.  (Id., at p. 544.)

 Here, as in Williams, contrary to the People's assertions, the search of appellant's wallet cannot be justified as incident to arrest since Officer Cronin lacked probable cause prior to the search.   At no time did the police associate the confiscated vials of PCP with appellant.   The vials were clearly under the control of Soberanis and there was no evidence that appellant was “jointly engaged in any activity, legal or illegal, except as a passenger.”  (People v. Williams (1970) 9 Cal.App.3d 565, 569, 88 Cal.Rptr. 349.)   The mere suspicion of involvement in criminal activity—which is all the officer could have had here—cannot justify an arrest.  (Wong Sun v. United States (1963) 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441, 453.)

 Further, the mere coincidence that appellant's name matched that of an outstanding warrant does not amount to probable cause justifying the intrusion on appellant's Fourth Amendment rights.   As Officer Cronin freely admitted at the preliminary hearing, Martinez is “an extremely common Hispanic name” often resulting in “hits on that name but that doesn't necessarily mean the individual you have is in fact the person named on the warrant.”

The People ultimately attempt to justify the search of appellant's wallet on the ground of officer safety.   This appears to be the basis for the trial court's decision to uphold Officer Cronin's actions.   The court stated:  “[M]y concern is the safety of the police officers.  [¶] I realize that persons who have difficulty in communication, ․ should not have their rights invaded to a greater extent than everybody else if it is at all possible to treat everyone the same.  [¶] However, I do not believe that the police ought to be placed in a position of danger simply because they are unnecessarily restricted by rules developed to protect the handicapped or those who don't speak English.  [¶] My concern is this:  The defendant was handcuffed at the time the police officer took his wallet.   There was no way under those circumstances, without handcuffing [sic ] him, that the policeman could ask him to write down his name, which would have been the only way that I know of that the defendant could have communicated a more specific identity to the officer.  [¶] Unless the officer was able to ascertain greater information to conclude his warrant check and ascertain exactly which Martinez this is or was, he was in a no-win position, if he had to take off the handcuffs first;  because if in fact this defendant happened to be someone who was sought by warrant for some dangerous crime, then the officer would have been at risk physically.”

 The California Supreme Court has enunciated the sound policy that police officers need not take unnecessary risks in the performance of their duties.  (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 829, 91 Cal.Rptr. 729, 478 P.2d 449.)   The key word here, however, is “unnecessary.”   Prior to the search of appellant's wallet, both appellant and Soberanis were frisked for weapons and placed in handcuffs.   Officer Cronin testified that following the removal of the admittedly legal knife from appellant's person, he did not believe either suspect to be concealing additional weapons.   Further, Officer Cronin was not alone during the warrant check;  his partner was standing by.

We perceive no reasonable risk potentially facing Officer Cronin had he removed appellant's handcuffs to allow him to comply with the officer's request for additional identification.   It appears that Officer Cronin, faced with the unusual circumstances of appellant's handicap, was unsure how to proceed with the investigation, so he reached into appellant's pocket to retrieve the information he needed.   We sympathize with the officer's position in this novel situation;  however, we cannot countenance his actions.   Accordingly, the search cannot be upheld.

The judgment is reversed.


1.   The knife was not booked into evidence because its possession was not illegal.

2.   It is unclear from the record whether the warrant in the name of “Martinez” included a first name.   The officer did not mention a first name when he testified.

3.   The record is unclear as to exactly when appellant was placed in handcuffs;  however, Officer Cronin testified that at the time he desired further identification, appellant was handcuffed.

4.   We question the pat-down of appellant for weapons prior to the search of the vehicle and the arrest of the driver, as well as appellant's subsequent handcuffing during the warrant check.   We need not reach these issues, however, given the illegal nature of the search of appellant's wallet.

5.   The United States Supreme Court has declined to reach a related issue:  “We need not decide whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements.  [Citations.]”  (Brown v. Texas (1979) 443 U.S. 47, 53, fn. 3, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357, 363.)   In Kolender v. Lawson (1983) 461 U.S. 352, 361, 103 S.Ct. 1855, 1860, 75 L.Ed.2d 903, 911, the Supreme Court declared California Penal Code section 647, subdivision (e), (which had been construed as requiring an individual to produce “credible and reliable” identification when requested by a police officer pursuant to a lawful detention) to be “unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.  [Fn. omitted.]”  The court left open, however, whether such a law “implicates Fourth Amendment concerns․”  (Id., at p. 361, fn. 10, 103 S.Ct. at 1860, fn. 10, 75 L.Ed.2d 912, fn. 10.)

WOODS, Presiding Justice.

KINGSLEY and McCLOSKY, JJ., concur.