PEOPLE v. TERESINSKI

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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Joseph TERESINSKI, Defendant and Respondent.

Cr. 9207.

Decided: March 07, 1978

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and William G. Prahl, Deputy Attys. Gen., for plaintiff and appellant. Lewis F. Shearer, Woodland, for defendant and respondent.

Defendant was charged with robbery (Pen.Code, s 211). He moved to suppress the evidence on the ground that it was the fruit of an illegal arrest, search and seizure. The trial court granted the motion and thereafter dismissed the complaint. (Pen.Code, s 1385). The People appeal. (Pen.Code, s 1238, subd. (a)(1), (7).)

Sometime after 2:00 in the morning of December 3, 1976, police officer Larry Rocha was driving his patrol car down “A” Street in the downtown area of Dixon,1 a small community in Solano County. He was familiar with most vehicles on the street at that late hour. A maroon Chevrolet, which was unfamiliar to him, approached from the opposite direction and passed, traveling at 20-25 miles per hour, within the legal speed limit. Because of the glare on the Chevrolet's window, Rocha was unable to see the driver but did observe two male passengers, one in the front and one in the rear seat. Both appeared to be juveniles, and he therefore concluded that all three were.

Accordingly, he activated his vehicle's red light and followed the car, which pulled over and stopped after going about a city block. His sole reason for the stop was that he believed the three were juveniles and therefore in violation of Dixon's curfew ordinance.2 He testified that his usual practice in such cases was to simply warn the juveniles regarding the violation and advise them to go home. In this case, however, as the car was pulling over to stop, he “observed the driver reach toward the glove compartment” while “glancing back” at him. He also observed the passenger in the right front seat reach under the front seat, bending down and forward.

Because Rocha had experienced a high incidence of drinking in curfew violations, these movements led him to suspect that the occupants were attempting to hide alcohol under the seat. The movements also made him personally apprehensive because of the possibility that the passenger was reaching for a weapon.

His suspicions were heightened when after the stop the driver (defendant) immediately exited the vehicle and walked back toward him. Rocha got out of the patrol car and drew his “back-up” weapon, a pistol he carried in addition to his service revolver. Despite the defendant's “friendly” attitude Rocha testified that he did not normally draw a weapon in making a stop, and that this time he was more fearful than in an ordinary curfew stop.

They met by the left rear tire of the Chevrolet. The defendant handed Rocha his driver's license, which revealed that he was “around twenty-one,” thus not a juvenile.

Rocha told the defendant to remain where he was, then walked to the driver's window to ascertain whether the other occupants were juveniles and also to look into the car for alcohol. His flashlight revealed a pool of liquid coming from beneath the driver's seat, and a “beer container wrapper” and a beer can on the floor under the passenger's legs. Reassured that all the two were trying to hide was alcohol, Rocha reholstered his weapon, walked around to the passenger side of the vehicle, and had the front passenger (who was in fact a juvenile) get out.

As the front passenger exited, Rocha noticed a holster on the front seat. He promptly redrew his back-up weapon and asked, “ ‘Where's the gun?’ ” Defendant answered, “ ‘Under the seat.’ ” Rocha then had the rear-seat passenger (codefendant Kimbrough, age 20) get out of the car, and ordered the defendant to carefully (between thumb and forefinger) retrieve the weapon (which on later inspection was seen to be loaded) and lay it on the seat. This was done. He then further detained all three occupants until a back-up unit from the sheriff's office arrived.

When the back-up unit arrived, Rocha searched the inside of the car “for other weapons and alcohol.” Under the seat he found five beer cans, one of them open, a baggie of marijuana, and a brown paper bag with the top folded back. He opened the bag and found that it contained money, both bills and change, and welfare department food stamps.

A call to police headquarters resulted in the arrest of the three for the robbery of a 7-Eleven Store in Woodland (about 15 miles from Dixon) which had occurred about 1:45 a.m. that morning. When they were booked, their photographs were taken; two of them including defendant's were included among a group of eight shown to the victim, who identified them as the robbers.

After the preliminary hearing, defendant moved to suppress all of the evidence, including the identification by the victim. The trial court granted the motion stating: “The Dixon officer saw that there were several occupants of the vehicle and he believed them to be juveniles. He caused the vehicle to be stopped because of his belief that the occupants were juveniles and that such conduct constituted a violation of the curfew ordinance. . . . The Dixon police officer mistakenly believed that the curfew ordinance prohibited juveniles from being out during certain hours. Actually, the ordinance only prohibited ‘loitering’ during such times. It is at once apparent that the subject individuals, even if juveniles, could not have been loitering by being occupants of a moving vehicle. The Dixon officer therefore improperly stopped this vehicle under the mistaken belief that there was a possible violation of the juvenile curfew ordinance; such was not possible under the circumstances (see People v. Horton, 14 Cal.App.3d 930 (92 Cal.Rptr. 666)). (P ) The items of physical evidence were disclosed or discovered as a consequence of the illegal stop.”

I

In People v. Horton (1971) 14 Cal.App.3d 930, 92 Cal.Rptr. 666, a police officer stopped a vehicle driven by a 20-year-old youth accompanied by his 15-year-old brother and 10-year-old cousin at 1:15 a.m. in Modesto. The People argued that the officer “had reasonable cause to stop appellant's vehicle on suspicion that appellant was aiding and abetting his two young passengers to loiter in violation of the municipal ordinance of the City of Modesto.” (14 Cal.App.3d at p. 933, 92 Cal.Rptr. at p. 668.) That ordinance made it “unlawful for any minor under the age of 18 years to loiter on a public street or in or about any public place in the City between the hours of 11 o'clock P.M. and 5 o'clock A.M. . . . unless accompanied by a parent, guardian, or other adult person having legal control . . . .” (14 Cal.App.3d at p. 933, fn. 1, 92 Cal.Rptr. at p. 668.) The Horton court held that probable cause for the stop did not exist because “. . . driving along city streets, even at 1:15 in the morning, is not ‘loitering.’ (In re Cregler, 56 Cal.2d 308, 312 (14 Cal.Rptr. 289, 363 P.2d 305); In re Hoffman, 67 Cal.2d 845, 853 (64 Cal.Rptr. 97, 434 P.2d 353).)”

In re Francis W. (1974) 42 Cal.App.3d 892, 117 Cal.Rptr. 277, like the present case, involved a Merced3 police officer's stop of a vehicle containing three youthful males for a curfew violation at 2:50 a.m. Also as in the present case, the officer was reasonably mistaken as to the age of the persons in the vehicle; the driver was in fact 18 years old, and not a juvenile. A substantial distinction between that case and this, however, is that unlike the Dixon ordinance, the Merced curfew ordinance stated, “It shall be unlawful for any minor under the age of eighteen years to be or appear on any street, square or public place in the city between the hours of 10:00 P.M. of any day and 6 A.M. of the following morning. . . .” (42 Cal.App.3d at pp. 900-901, fn. 3, 117 Cal.Rptr. at p. 282.) (Emphasis added.)

The Francis W. court distinguished Horton in several respects and upheld the vehicle stop and ensuing search and seizure. The court stated: “Horton is distinguishable on several grounds. The Merced municipal ordinance in the case at bench (fn. omitted) is broad enough to prohibit the minors from appearing ‘on any street, square or public place’ at night, whether in a car or not; thus the officer's suspicion of criminal activity by the occupants of the vehicle, that is, violating the ordinance, was reasonable. (People v. Flores (1974) 12 Cal.3d 85, 91 (115 Cal.Rptr. 225, 524 P.2d 353); Williams v. Superior Court, supra, 274 Cal.App.2d 709, at pp. 711-712, 79 Cal.Rptr. 489; People v. Manis (1969) 268 Cal.App.2d 653, 659 (74 Cal.Rptr. 423); People v. Henze (1967) 253 Cal.App.2d 986, 988-990 (61 Cal.Rptr. 545).) Further, as distinguished from Horton, the officer here had the subjective belief that the ordinance was being violated (see People v. Miller, supra, 7 Cal.3d 219, at p. 226, 101 Cal.Rptr. 860, 496 P.2d 1228; People v. Superior Court (Simon) supra, 7 Cal.3d 186, at p. 198, 101 Cal.Rptr. 837, 496 P.2d 1205) and believed that all three of the occupants were under 18 and in violation of the ordinance. It has been held permissible to stop minors to inquire of their ages when no adult is present. (Pendergraft v. Superior Court (1971) 15 Cal.App.3d 237, 241 (93 Cal.Rptr. 155); People v. Bloom (1969) 270 Cal.App.2d 731, 735 (76 Cal.Rptr. 137).)

“. . .

“Having detained the appellant and the others for investigation regarding their violation of the curfew ordinance, the officer had a right to continue the investigation until such time as it was completed or the suspicion abated (People v. Superior Court (Acosta) (1971) 20 Cal.App.3d 1085, 1091 (98 Cal.Rptr. 161); People v. Manis, supra, 268 Cal.App.2d at pp. 661-663, 74 Cal.Rptr. 423) . . . .” (Emphasis in original.) (42 Cal.App.3d at pp. 900-901, 117 Cal.Rptr. at p. 282.)

The present case is factually more similar to Francis W. than to Horton. Here Rocha had the subjective belief both that the Dixon ordinance was being violated and that all three of the vehicle's occupants were violating it. Indeed, the only distinction, as has been noted, is with reference to the scope of the curfew ordinance. Read literally, the Dixon ordinance is not violated by the conduct of the vehicle's occupants in this case. They did not “loiter, idle, wander, stroll, or play in or upon the public streets” of Dixon. (Cf. In re Cregler (1961) 56 Cal.2d 308, 14 Cal.Rptr. 289, 363 P.2d 305; In re Hoffman (1967) 67 Cal.2d 845, 64 Cal.Rptr. 97, 434 P.2d 353.)

The first essential of probable cause for arrest is the police officer's subjective belief that a criminal offense is being committed in his presence. (People v. Miller (1972) 7 Cal.3d 219, 226-227, 101 Cal.Rptr. 860, 496 P.2d 1228.) “ ‘(U)nless it is first established that the police officer believed that the crime . . . had been committed by the (defendant), the issue of probable cause does not arise, . . .’ ” (Id. at p. 226, 101 Cal.Rptr. at p. 865, 496 P.2d at p. 1233.) (Emphasis in original.) The next consideration is whether the facts available to the officer at the moment of the arrest would “warrant a man of ‘reasonable caution’ in concluding that an offense has been committed.” (Ibid.) And it is elementary that circumstances short of probable cause to arrest may still justify an officer's detention of pedestrians or motorists in public areas for inquiry and further investigation. (People v. Mickelson (1963) 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Courtney (1970) 11 Cal.App.3d 1185, 90 Cal.Rptr. 370; Williams v. Superior Court (1969) 274 Cal.App.2d 709, 79 Cal.Rptr. 489.)

Application of the foregoing principles of the law of constitutionally permissible arrest or detention makes it immediately apparent that the trial judge, like the court in Horton, and to some extent the court in Francis W. (see quote from Francis W. supra ), fell into error. Once the officer's subjective belief was established, the ensuing inquiry was not whether in the abstract the curfew statute was correctly interpreted by the officer, but whether a reasonable person, in the officer's position at the time and place in question, would reasonably have believed that the curfew ordinance was being violated. In re Cregler, supra, and In re Hoffman, supra, both interpreted curfew statutes, and more specifically the word “loiter” contained therein, in the constitutional context, and found the word constitutionally deficient unless interpreted so as to involve “sinister or wrongful” connotations; they were concerned with substantive law, not with probable cause in the search and seizure context. In our appellate aerie and at our academic leisure, we have no difficulty in concluding that the Dixon curfew law literally does not forbid the presence of minors in a moving vehicle at 2 a.m. But it does not follow that a Dixon police officer in the position of Rocha comes to the same conclusion. He is neither a judge nor a lawyer.4 Nor is he necessarily enough of a scholar to readily comprehend that “to loiter, idle, wander, stroll, play in or upon a public street” excludes such activity when performed inside a motor vehicle. His forte is and should be law enforcement, not academia. It was error for the trial judge to judicially interpret the curfew statute and thereafter to conclude ipse dixit that Rocha lack probable cause to detain5 simply because of his different interpretation; the judge failed to determine the reasonableness vel non of Rocha's interpretation, tested by the standard of the reasonably intelligent, reasonably well trained, and reasonably prudent police officer under all the circumstances.

Our conclusion finds support in Hill v. California (1971) 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484, which upheld a California Supreme Court ruling that “(w)hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest.” (See People v. Hill (1968) 69 Cal.2d 550, 553, 72 Cal.Rptr. 641, 446 P.2d 521.) Although the Hill cases, and others dealing with this subject (see Witkin, Cal. Evidence (2d ed. 1966) s 113, pp. 112-113), involved mistakes of fact, the United States Supreme Court observed that Fourth Amendment standards for arrests and searches are to be “judged in accordance with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act,’ Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 . . . (1949) . . . .” (401 U.S. at pp. 804-805, 91 S.Ct. at p. 1111.) (Emphasis added.)

In Elder v. Bd. of Medical Examiners (1966) 241 Cal.App.2d 246, 50 Cal.Rptr. 304, a nurse was arrested for prescribing drugs without a certificate, in violation of section 2141 of the Business and Professions Code. Incident to the arrest, the records of the doctor for whom she worked were searched, resulting in the revocation of his license to practice medicine. In an administrative mandamus proceeding, the superior court ordered the revocation vacated on the ground that the nurse's arrest was illegal, hence the search was invalid. The Court of Appeal reversed, noting that although another section of the code, section 4229, “was subject to the construction (which was followed by the municipal court in the action against the nurse) that since petitioner could have originally authorized a refill, and since, if present, he could have orally authorized a refill, it was proper for the nurse to orally authorize a refill pursuant to the instructions given her before his departure. Nevertheless, there was no precedent so construing the statutes, nor does it appear that the authorities knew or had reason to believe that all of the dangerous drugs furnished by authorization of the nurse were for refilled prescriptions. (See Randle v. California State Board of Pharmacy (1966) 240 Cal.App.2d 254, 258-260 (49 Cal.Rptr. 485).) (P) On the record, therefore, there is nothing to sustain any implication from the trial court's finding that the filing of the complaint and the issuance and execution of a warrant against the nurse was other than bona fide. The arrest being valid the search attendant thereto was lawful.” (241 Cal.App.2d at p. 263, 50 Cal.Rptr. at p. 317.) (Emphasis added.) Since the court's discussion of mistake of fact (whether the drugs furnished by the nurse were for refilled prescriptions) depends entirely upon a prior mistake of law (the scope of s 4229), the Elder case undeniably stands for the proposition that an arrest can be valid despite a good faith mistake of law. The court impliedly found the mistake reasonable on the ground that “there was no precedent so construing the statutes.”

A distinction in the search and seizure area between mistakes of fact and mistakes of law is not warranted. Clearly, an officer's mistake of fact is just as intrusive on privacy rights as his mistake of law. The Fourth Amendment is not threatened by an officer who is in subjective good faith and whose good faith is objectively reasonable, regardless of whether he makes a mistake of law or of fact. The ability of the courts to ultimately judge the reasonableness of a given mistake of law is sufficient guarantee that willful, or even foolish (hence not reasonable) mistakes of law will not validate otherwise invalid searches, detentions, and arrests.

The order granting the motion to suppress is reversed and the cause remanded to the trial court with directions to reconsider the issue in the light of this opinion, receiving further evidence if necessary.

FOOTNOTES

1.  Dixon had a population of 5,450 as of January 1, 1977 (see 1977 Cal.Statistical Abstract, p. 13).

2.  Section 16.2 et seq. of the Dixon City Ordinance provide that:“Sec. 16.2 Curfew Minors not to be in public after 10:00 P.M.; exceptions.“It shall be unlawful for any person under the age of eighteen years to loiter, idle, wander, stroll, or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, or other public grounds, public places and public buildings, places of amusement and eating places, vacant lots, or other unsupervised places, between the hours of 10:00 P.M. and 5:00 A.M. of the day immediately following; provided, however, that the provisions of this section do not apply when the person is accompanied by his parents, guardian, or other adult person having the care and custody of the person, or when the person is returning directly home from a meeting, entertainment, recreational activity or dance, or when the person is going directly to or returning directly from work.“A person under eighteen years may obtain food in a cafe after a meeting, entertainment, recreational activity, dance or work after the hour of 10:00 P.M. but must vacate the premises immediately after consuming the food served and proceed directly home. (Ord. No. 6, 1950, s 1.)“Sec. 16.3 Curfew Minors Responsibility of parents or guardians.“It shall be unlawful for the parent, guardian or other adult person having the care and custody of a person under the age of eighteen years, to permit or allow such person to loiter, idle, wander, stroll or play in or upon the public streets, highways, roads, alleys, parks, playgrounds or other public grounds, public places or public buildings, places of amusement and eating places, vacant lots, or other unsupervised places, between the hours of 10:00 P.M. and 5:00 A.M. of the day immediately following, contrary to the provisions of the preceding section. (Ord. No. 6, 1950, s 2.)“Sec. 16.4 Curfew Minors under eighteen violating curfew regulations.“Any person under the age of eighteen years violating the provisions of section 16.2 shall be guilty of a misdemeanor and shall be dealt with in accordance with juvenile court law and procedure. (Ord. No. 6, 1950, s 3.)”

3.  Compare Merced's population of 31,700 with Modesto's 90,700 (People v. Horton, supra) and Dixon's 5,450 (see 1977 Cal.Statistical Abstract at pp. 12, 14).

4.  “(Courts have reasoned) that the mentality of the average policeman, whose life is traditionally not a happy one, should not be charged with the decisions of questions which baffle the best lawyers in the land.” (Prosser, Torts (4th Ed.) p. 128.)

5.  For examples of dictum involving similar error, see People v. Deam (1970) 10 Cal.App.3d 162, 166, 89 Cal.Rptr. 29, 31: (“as the misconduct (preparations to perform an abortion) did not constitute a public offense, (it) did not furnish probable cause to believe (defendant) had committed a public offense,”) and Wainwright v. Procunier (9th Cir. 1971) 446 F.2d 757, 759: (“the arrest of appellant for public urination was invalid since the arrest was for a nonexistent offense.”)

PARAS, Acting Presiding Justice.

REYNOSO and FRIEDMAN (Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council), JJ., concur.

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