PEOPLE v. HAROLD (1989)

When Ernest Ollie Harold was stopped by police for questioning about a reported burglary in the neighborhood, he refused to produce proof of his identity and he denied carrying a wallet.   The police did not believe him and demanded that he show them identification and a wallet which appeared to be in his back pocket.   Harold gave the officers a social security card, a California Bureau of Corrections identification card with a photograph, and an address book.   The officers continued to demand that Harold show them the wallet, which he eventually did.   It contained identification cards belonging to one of the burglary victims.

We find the search of the wallet was unlawful.   The police did not use the least intrusive means reasonably available to verify or dispel their suspicions.   The officers ran no radio checks on the written identification offered by Harold, nor did they question him further as to his identity except to ask again to see the wallet.   Harold had a reasonable expectation of privacy in the wallet, and his initial reluctance to produce proof of identity did not, without more, justify searching the wallet.

FACTS

When Oxnard Police Officer Martin Meyer came on duty on the morning of June 16, 1986, he was briefed about a residential burglary, kidnapping and car theft that occurred at about 2 a.m.   The police bulletin described the perpetrator as a black male in his thirties, 5′10″ to 5′11″ tall, medium weight, unshaven, wearing a black leather or nylon coat and blue pants.   The suspect was reportedly armed with a firearm.

At about 2 p.m. that afternoon, Officer Meyer was on foot patrol with Officer Randy Cole when they saw Harold in an alleyway.   Officer Meyer recognized Harold as a man he had seen earlier in the day who matched the description of the burglary suspect.   The officers stopped Harold and asked for identification.

Harold at first replied that he had no identification.   The officers saw what appeared to be a wallet in Harold's rear pants pocket, and Officer Cole felt the pocket to verify that the object inside was a wallet.   The officers asked Harold whether he had a wallet.   Harold denied having one, but he pulled a social security card from his back pocket, gave it to the police, and verbally identified himself.

Officer Meyer told Harold that he wanted to see photographic identification, and again asked to see his wallet.   Harold then produced a California Board of Corrections identification card with his name, photograph, birthdate, and prisoner ID number.   The officers had never before seen a prison identification card, and they were unsure whether the ID number could be verified over the police radio.   They asked Harold to produce the contents of his back pocket.   Harold pulled an address or telephone book from the pocket and offered it to the police.   Officer Meyer then said, “Let me see the wallet,” and Harold relented.

The wallet contained identification cards belonging to a victim of the burglary.   Harold was arrested and searched.   The police found a ring belonging to one of the victims.   Harold was charged with five counts of burglary, kidnapping and theft.   The trial court denied Harold's Penal Code section 1538.5 motion to suppress, and he was convicted by jury of all counts.

DISCUSSION

Harold asserts two separate theories in appealing the denial of his motion to suppress:  that the officers detained him without reasonable cause, and that they impermissibly seized and searched the wallet.

On review of a Penal Code section 1538.5 motion to suppress we view the evidence in a light favorable to the trial court's ruling.   We uphold those express or implicit findings of fact by the trial court which are supported by substantial evidence, but we independently determine whether the facts support the court's legal conclusions.  (People v. Leyba (1981) 29 Cal.3d 591, 596–598, 174 Cal.Rptr. 867, 629 P.2d 961.)   Evidence will not be suppressed unless the seizure was in violation of the Fourth Amendment to the United States Constitution and the federal exclusionary rule applies.  (In re Lance W. (1985) 37 Cal.3d 873, 896, 210 Cal.Rptr. 631, 694 P.2d 744.)

The Investigative Stop

 It is well settled that police may stop a person on the street and conduct a brief investigation when they have a reasonable suspicion, based on specific and articulable facts, that the person has been involved in a crime.   (Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889;  United States v. Hensley (1985) 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604;  In re William J. (1985) 171 Cal.App.3d 72, 75, 217 Cal.Rptr. 163.)   In justifying an investigative stop, the prosecution must show that the officer personally entertained reasonable suspicion that the suspect has been involved in a crime and that these suspicions were objectively reasonable.  (People v. Bower (1979) 24 Cal.3d 638, 644, 156 Cal.Rptr. 856, 597 P.2d 115.)  “If the underlying facts failed to reasonably ‘distinguish [the suspected individual] from any other citizen ․ at that time and place,’ the detention is not justified.  [Citations.]”  (Ibid.)

 Officer Meyer testified at the suppression hearing that he first saw Harold at about 8 in the morning, just two blocks from the crime scene, and that Harold matched the description of the suspect.   Officer Meyer described him as a black male in his thirties, medium height and weight, about five feet, ten inches tall, unshaven, with an afro haircut, a black coat and blue pants.   Officer Meyer further testified that Harold quickly went into an apartment after the officer drove around the block and returned for another look at him.

These facts justify a brief investigative stop by police.  (See, e.g., People v. Fields (1984) 159 Cal.App.3d 555, 205 Cal.Rptr. 888.)   That Officer Meyer remembered Harold wearing a dark coat rather than a dark jacket as described in the police bulletin, and that Harold had an afro, does not make the officer's suspicions unreasonable.   The police bulletin did not mention the suspect's hair style, and the difference between a dark jacket and a dark coat is, under the circumstances, one of semantics.

Nor does it matter that Officer Meyer did not immediately follow Harold into the apartment to question him.   Officer Meyer testified that he did not pursue Harold that morning for safety reasons and because there was no probable cause to arrest him.   Meyer intended to give the address of the apartment to detectives investigating the crime.   The trial court believed this testimony, and it is not so improbable as to make the officer's subjective suspicions objectively unreasonable.

Search and Seizure of the Wallet

 Once a suspect is lawfully detained for investigation, the officer may ask for identification.  (United States v. Mendenhall (1980) 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497;  Adams v. Williams (1972) 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612;  People v. Gonzales (1985) 164 Cal.App.3d 1194, 1197, 211 Cal.Rptr. 74.)   Without the right to make such an inquiry, the police officer's “right to conduct an investigative detention would be mere fiction.”  (People v. Loudermilk (1987) 195 Cal.App.3d 996, 1002, 241 Cal.Rptr. 208;  United States v. Jones (8th Cir.1985) 759 F.2d. 633, 641.)   Disclosure of one's name and address “is an essentially neutral act.”  (California v. Byers (1971) 402 U.S. 424, 432, 91 S.Ct. 1535, 1540, 29 L.Ed.2d 9.)

 Yet the right to inquire into a suspect's identity does not necessarily translate into the right to search the suspect's wallet for proof of identification.   The Fourth Amendment “provides protection to the owner of every container that conceals its contents from plain view.”  (United States v. Ross (1982) 456 U.S. 798, 822–823, 102 S.Ct. 2157, 2171–2172, 72 L.Ed.2d 572.)  “The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.’  (Terry v. Ohio [supra, 392 U.S. at pp. 19, 20, 88 S.Ct. at pp. 1878, 1879.] )”  (Pennsylvania v. Mimms (1977) 434 U.S. 106, 108–109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331.)   In demarking the proper bounds of police investigations, we balance the governmental interest justifying the intrusion against “the individual's right to personal security free from arbitrary interference by law enforcement officers.”  (United States v. Brignoni–Ponce (1975) 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607;  United States v. Hensley, supra, 469 U.S. at p. 228, 105 S.Ct. at p. 680.)

The People argue that police may search a suspect's wallet for identification when the suspect is evasive and creates confusion about his identity, such as when he denies carrying identification or a wallet.   The People cite People v. Long (1987) 189 Cal.App.3d 77, 234 Cal.Rptr. 271, and People v. Loudermilk, supra, 195 Cal.App.3d 996, 241 Cal.Rptr. 208, in support of this theory.

The Courts of Appeal in Long and Loudermilk both held it was reasonable to seize and search the suspect's wallet where the suspect refused to produce any proof of identity.  (People v. Long, supra, 189 Cal.App.3d at pp. 81–82, 234 Cal.Rptr. 271;  People v. Loudermilk, supra, 195 Cal.App.3d at p. 1000, 241 Cal.Rptr. 208;  see also State v. Flynn (1979) 92 Wis.2d 427, 285 N.W.2d 710, 719, where the seizure and search of a wallet was held reasonable where the suspect belligerently and persistently refused to identify himself.)   The court in Long further justified the search because the police had a legitimate fear that the suspect was either destroying evidence kept in his wallet or was hiding a razor blade in it.  (Long, supra, 189 Cal.App.3d at p. 88, 234 Cal.Rptr. 271.)

Here, however, the officers testified that they did not believe the bulge in Harold's pocket was a weapon or that the wallet contained a weapon.   More important, in contrast to the suspects in Long, Loudermilk, and Flynn, Harold did eventually cooperate with police by producing two and perhaps three pieces of written identification, including one with a photograph and birthdate.   Thus, even if it is true, as the People contend, that a suspect in an investigative stop has no right to keep his identity secret,¹ such is not the case before us.   Common sense dictates that a suspect who denies carrying proof of identity will heighten police suspicion about him (see, e.g., United States v. Jones, supra, 759 F.2d at pp. 641–642;  United States v. Hunter (9th Cir.1972) 471 F.2d 6), but once the suspect relents and produces written identification, his initial reluctance does not, without more, justify searching his wallet.   Such a search constitutes “a general fishing expedition” for whatever evidence the officer could find.   This is not sanctioned by People v. Loudermilk, supra, 195 Cal.App.3d at p. 1002, 241 Cal.Rptr. 208.

The People further fail to distinguish between a suspect who refuses to provide police with proof of identity and one who refuses to hand over a wallet.   A wallet often contains much more than identification, and a search of a wallet, like that of a closed purse or other bag carried on the person, “is undoubtedly a severe violation of subjective expectations of privacy.”  (New Jersey v. T.L.O. (1985) 469 U.S. 325, 338, 105 S.Ct. 733, 740, 83 L.Ed.2d 720;  People v. Long, supra, 189 Cal.App.3d at p. 86, 234 Cal.Rptr. 271.)

To hold, as the People urge, that refusal to hand over a wallet creates reasonable grounds to search that wallet creates a Fourth Amendment catch–22.   The failure to consent to a search would create the probable cause to conduct that search.   Government intrusion requires more than cynical assumptions.

The methods employed by the police during an investigative stop “should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.”  (Florida v. Royer (1983) 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229.)

Here the officers searched the wallet before making any attempt at all to verify the written and photographic identification Harold gave them.   Officer Meyer testified that he was not “satisfied” with the Board of Prison Corrections identification card because he did not know whether the card could be verified over the police radio, and because Harold looked different than the person whose picture was on the card.   Yet, Officer Meyer conceded that he could have run a radio check for warrants and other background information using only Harold's name and birthdate.   The officers did not even ask Harold where he lived.   Harold's answer to that question might have revealed something about whether or not he was truthful because Officer Meyer noted the address of the apartment he had seen Harold go into that morning.   Finally, it is unreasonable to assume that a suspect in a criminal investigation would attempt to assuage police suspicions by falsely identifying himself as a former prisoner.

The trial court erred in denying the motion to suppress.   We need not consider other errors asserted in this appeal.   The order and verdict is reversed.

FOOTNOTES

1.   This issue has yet to be resolved by the United States Supreme Court.  (See 3 LaFave, Search and Seizure, A Treatise on the Fourth Amendment (2d ed. 1987) § 9.4(g), pp. 539–546.)

GILBERT, Associate Justice.

STEVEN J. STONE, P.J., and ABBE, J., concur.