PEOPLE v. WISE (1980)

Defendant appeals from a judgment entered on a plea of guilty to unlawful possession of PCP. He challenges the legality of his detention and the seizure of the contraband. His motion pursuant to section 1538.5, Penal Code was submitted on the transcript of testimony taken at the preliminary hearing.

At 9 p. m. Officers Pytel and Holtz, in uniform and in a marked patrol car, drove to Century Boulevard and 102nd Street where a parking lot was located in an apartment area; they went there because they had received numerous complaints from citizens in the area of narcotic sales and activity in that parking lot and information from other officers regarding complaints of narcotic activity made to them by citizens in that area, and because they had had personal experience with that particular parking lot having made numerous arrests in the past for narcotics and involvement in numerous narcotic incidents regarding suspects or victims of narcotic transactions.

The officers walked to the parking lot about five apartments from the corner and remained behind a building from which, they could view the entire parking lot in which about 30 or 40 yards away, was a group of 15 or 20 young Negro male adults; a police car pulled into the lot and its high beam lights illuminated the entire lot; most of the people in the group remained there but five or six of them, one of whom was defendant, ran away. From Officer Pytel's own past experience at that parking lot he noticed that usually when one is possessing narcotics for sales in that vicinity and sees a police car or officer he will turn and run in the opposite direction. Defendant ran away from the group and the police car and directly toward the building behind which Officers Pytel and Holtz were standing; when defendant was 20 feet away and facing them the officers stepped out from behind the building; defendant was holding a bottle in his left hand; Officer Pytel said, “Police officers. Halt, put up your hands”; defendant dropped the bottle onto the grass down to his side which landed two or three feet away, and raised his hands. Officer Pytel recovered the bottle which was a brown glass container the contents of which he could see through the glass; it contained Sherman cigarettes and when he opened it a strong odor of PCP emitted from the cigarettes.

Appellant relies on People v. Bower, 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115, in challenging the constitutionality of his detention.¹ He asserts that the detention was predicated on “mere hunch” that there might be criminal activity, and that the officers engaged in a “police dragnet” operation the result of which did not constitute probable cause to detain him even though he fled police.

“It is settled that circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation. [Citations.]” (In re Tony C., 21 Cal.3d 888, 889, 892, 148 Cal.Rptr. 366, 367, 582 P.2d 957, 958.) After articulating principles controlling detention, the court in Tony C. continued: “Balancing these factors, the courts have concluded 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. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.” (P. 893, 148 Cal.Rptr. p. 368, 582 P.2d p. 959.)

In light of the foregoing standards we examine the actions of Officer Pytel in relationship to the existing circumstances and conduct to determine whether the facts known to him at the time he ordered defendant to halt, which included his specialized training, knowledge and experience (People v. Superior Court (Kiefer), 3 Cal.3d 807, 827, 91 Cal.Rptr. 729, 478 P.2d 449) and the specific and articulable facts available to him together with reasonable inferences to be drawn therefrom, were such as to reasonably cause him to believe that some activity relating to crime was occurring and that defendant was involved in that activity. We conclude that defendant was lawfully detained.

In People v. Bower, 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115, defendant, a white male, was with several black persons at night in a black residential complex; the group changed its course when it observed the patrol car, then conversed in a “huddle”; the officers decided either narcotics or weapons were involved due to the hour and a white male being with black persons in a black residential area; when the officers approached, the group disbanded and when defendant exited to the street at a quick walk, the officer told him to stop. The case falls into proper perspective when considered in relation to the narrow issue framed by the court: “This court must decide whether an officer may constitutionally detain a citizen because he is a white man who happens to be with a group of black men in a black residential area at 8:37 p. m.” (P. 641, 156 Cal.Rptr. p. 858, 597 P.2d p. 117.) The court held that these factors were not an adequate basis on which to detain defendant. (P. 649, 156 Cal.Rptr. 856, 597 P.2d 115.)

It is important to know what the case at bench is not. It is not a white man in a black residential “high crime” area with black companions at night. It is a young male adult standing with a group of 19 other young male adults at 9 p. m. in a parking lot of an apartment complex who, upon entry to the lot of a police car, ran with four others from the group which remained standing and away from the police vehicle and out of the light of its high beams across the grass into the darkness in the direction of a building holding a bottle in his left hand, and was stopped by officers who had observed him run from the group and the police car upon its entry to the lot, were aware of prior narcotics sales and activity in that lot from numerous complaints to them and to other officers by citizens in the area and from numerous arrests they personally had made there for narcotics and involvement in numerous incidents regarding suspects or victims of narcotic transactions, and knew from their own personal experience in that lot that usually when one possesses narcotics for sales there and sees a police car or officer, he will turn and run in the opposite direction.

There is no race factor present; they were all black males in a black neighborhood, but neither race nor “one officer's perception of the criminal tendencies of a racial group” (People v. Bower, 24 Cal.3d 638, 646-647, 156 Cal.Rptr. 856, 861, 597 P.2d 115, 120, original emphasis) entered the officer's consideration. There do exist two factors which the court in Bower characterized as “not ‘activity’ by a citizen” (p. 645, 156 Cal.Rptr. 856, 597 P.2d 115)—darkness and the character of the area. These two alone are insufficient to warrant the intrusion (In re Tony C., 21 Cal.3d 888, 897, 148 Cal.Rptr. 366, 582 P.2d 957), but still they may be pertinent circumstances when other factors are present. (People v. Rosenfeld, 16 Cal.App.3d 619, 622, 94 Cal.Rptr. 380.) Bower warns us that the nighttime factor “should be appraised with caution.” (P. 645, 156 Cal.Rptr. 856, 597 P.2d 115.) While 9 p. m. is not a late hour it is dark then and whether it is 9 p. m. or 3 a. m., darkness effectively hides criminal activity. Concerning the area, the officers knew the parking lot as one of narcotic sales and activity. Again we are cautioned in Bower in appraising a “high crime area.” We note that the term “high crime area” was not used here, the parking lot was never so described and the crime rate had no part in the officer's consideration. However, the character of the area in terms of Officer Pytel's personal familiarity with the activities there and the nighttime factor combined to provide the environment in which the conduct of defendant must be judged.

The lack of “furtive behavior” or the “innocent gesture” was also discussed in Bower; the court found “little that is ‘furtive”’ about defendant's behavior (p. 647, 156 Cal.Rptr. 856, 597 P.2d 115.)—four or five persons in animated conversation left the apartment building each leaving to go in a different direction; nothing was concealed, disposed of, exchanged or carried; when they separated they walked away on public sidewalks with no attempt to avoid the lighted open portions of the area. The key seems to be that the underlying facts must reasonably distinguish the suspect from any other citizen at “that time and place.” (People v. Moore, 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800), thus the activity must be appraised in relation to the environment, time and place in which it occurred. (People v. Moore, 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800; Flores v. Superior Court, 17 Cal.App.3d 219, 223, 94 Cal.Rptr. 496.) Considered in this light, defendant's actions were not exactly normal and in no way approached the innocence of the mere act of turning one's back to a police officer while talking into the telephone in a telephone booth as in People v. Moore, 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800. Upon seeing the police car, defendant and four others ran in the same direction away from the vehicle out of the light across the grass toward a darkened building. Significant is the fact that the other 15 members of the group remained where they were illuminated by the high beams of the police car. This flight from the police is to be judged in the environment in which the activity took place. (Flores v. Superior Court, 17 Cal.App.3d 219, 223, 94 Cal.Rptr. 496.) To the trained officer knowing the character of that parking lot and that usually one possessing narcotics for sale there will run from police, such flight from the police vehicle amounted to even more than a “furtive gesture”; plainly, it took on all the characteristics of an attempt by one in possession of narcotics to escape confrontation with a police officer.²

Appellant's contention that seizure of the bottle was unlawful is based on the dual premise that he did not abandon it and his interest in the contents and in any case his discarding the bottle was the product of an illegal detention; and that the search of the bottle cannot be justified as a plain view seizure. In light of our conclusion concerning the first premise, we do not reach the second.

Appellant introduces an element of fear of danger of being shot by police “in light of the increasing number of police shootings of detained suspects,” and argues that dropping the bottle was to assure police it was not a weapon. This police shooting theory fails to support any such fear factor. He is precluded from raising the issue here for the first time. (People v. Privitera, 23 Cal.3d 697, 710, 153 Cal.Rptr. 431, 591 P.2d 919; People v. Rogers, 21 Cal.3d 542, 547-548, 146 Cal.Rptr. 732, 579 P.2d 1048.) The same may be said for his argument that there was no testimony regarding the contraband nature of the bottle or Officer Pytel's expertise in recognizing its contents as contraband. Although the superior court commented that defendant dropped the bottle in plain sight upon being ordered to stop, it is clear that in denying his motion the superior court accepted the theory of abandonment: “They ordered him to stop and he drops the bottle in plain sight. Investigating it they found it contained contraband. I think it is a valid stop. Of course, there was, in fact, no search once you get by that.”³ (Emphasis added.) This is a holding that defendant had abandoned the bottle at the commencement of a legal detention, and that seizure and examination of the bottle by police were not the result of any search. Finally, there is no evidence that Officer Pytel threatened to conduct an illegal search. When he told defendant to halt and raise his hands he did not tell or even intimate to him he was going to search him (People v. Robinson, 58 Cal.App.3d 363, 366, 129 Cal.Rptr. 915), he made no threats of any kind and committed no act evidencing his intent to attempt, by coercion or threat, a nonconsensual search. (In re Michael V., 10 Cal.3d 676, 682, 111 Cal.Rptr. 681, 517 P.2d 1145.) Thus, this theory was not presented in the court below. Under the circumstances, it is reasonable to believe the officer ordered defendant to raise his hands as a proper precaution for his own safety.

On the state of the record here, plainly the issue is not whether the seizure of the bottle was the product of an illegal search, but whether it was the product of an illegal detention for if the bottle was abandoned by defendant at the outset of legal police conduct and detention it was proper for the officers to seize and examine it. We have hereinabove concluded that defendant's detention was a lawful one and that there was no illegal police conduct. It is readily inferable from the evidence that defendant dropped the bottle from his hand either immediately before or at the time he raised his hands to dispossess himself of its contraband contents. Thus we also conclude that the defendant's dropping the bottle from his hand to the grass was an abandonment of the bottle and the contraband it contained, they were not the subject of any “search,” there was no intrusion into defendant's right of privacy and they were legally acquired by the police. (People v. Stafford, 28 Cal.App.3d 405, 410, 104 Cal.Rptr. 754; People v. Orr, 26 Cal.App.3d 849, 860, 103 Cal.Rptr. 266; People v. Rosenfeld, 16 Cal.App.3d 619, 623, 94 Cal.Rptr. 380; People v. Poehner, 16 Cal.App.3d 481, 485-486, 94 Cal.Rptr. 94; People v. Harris, 15 Cal.App.3d 498, 501, 93 Cal.Rptr. 285.

Appellant's remaining contention is that he is entitled to good time/work time credits for presentence custody against his sentence. Whether a convicted felon is entitled to good time and work time credit for time served in the county jail prior to sentencing is a question which our Supreme Court has answered in the affirmative. (People v. Sage, 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874.) Presumably appellant will receive the benefit thereof administratively. (See fn. 7, p. 507, 165 Cal.Rptr. fn. 7, p. 286, 611 P.2d fn. 7, p. 880.) If not he may resort to judicial relief by way of motion to be given such credit in the trial court.

The judgment is affirmed.

I dissent.

The propriety of Officer Pytel's initial detention of appellant presents an exceedingly close case.

It seems to me that the question boils down to whether the police officer reasonably could believe that appellant was connected to some activity relating to crime (People v. Bower (1979) 24 Cal.3d 638, 644, 156 Cal.Rptr. 856, 597 P.2d 115; In re Tony C. (1978) 21 Cal.3d 888, 892-893, 148 Cal.Rptr. 366, 582 P.2d 957), and could point to “specific and articulable facts” (ibid.) to support that belief. Here there were two sets of facts: (a) the officers were at the location because they received numerous complaints from citizens about narcotics sales and activity in the parking lot and had made numerous arrests for narcotics activity at that precise location; and (b) defendant, when a police car came into sight, ran away from it toward the hidden witness-officer. Fact (a) is more than the mere “high crime area” rationalization rejected in Bower (24 Cal.3d at p. 645, 156 Cal.Rptr. 856, 597 P.2d 115). The citizen complaint and the prior arrests related to specified crime (on-going narcotic activity) in a specified place (the parking lot). Fact (b) is more than mere avoidance of officers by a citizen not desiring the pleasure of their company. (Bower, supra, 24 Cal.3d at pp. 647-648, 156 Cal.Rptr. 856, 597 P.2d 115.) It is flight—a fact which, if proved—the jury might consider in deciding guilt or innocence. (Pen. Code, § 1127c.) As such, it likewise is a specific and articulable fact. While there is some logic in the appellant's argument that the validity of a detention should not depend on the speed with which a party moves away from approaching police officers (in Bower, supra, for instance, the appellant had moved at a “very quick walk, almost a run” (24 Cal.3d at p. 643, 156 Cal.Rptr. at p. 858, 597 P.2d at p. 117)), it simply is not unreasonable, and therefore, is not within the constitutional prohibition, to use the fact of a dead run as one of the facts supporting a decision to detain. Accordingly, I concur in the majority's conclusion that the detention—the stop itself—was valid.

I cannot agree, however, that the search of the bottle was justified on the theory of abandonment. The record shows that, as appellant ran from the police car, Officer Pytel and his partner, Officer Holtz, both in uniform, stepped from behind a building when appellant was twenty feet away, and said “Police officers. Halt, put up your hands.” At that moment defendant dropped the bottle and put his hands in the air. The officers retrieved and opened the bottle and were then able to smell the odor of PCP coming from the cigarettes.

The bottle dropping occurred almost instantly after the police command as appellant complied with the order to raise his hands. It is manifest that the bottle was dropped in response to that order. It is not reasonable, in my view, to read into that response an intent to give up all interest in the bottle, and hence any right to object based on privacy. Thus, cases in which a defendant discarded contraband while being pursued by police officers (e. g., People v. Prendez (1971) 15 Cal.App.3d 486, 93 Cal.Rptr. 180) or when approached by officers (e. g. Hester v. United States (1924) 265 U.S. 57, 58, 44 S.Ct. 445, 446, 68 L.Ed. 898) are not in point.

It is clear on this record that the PCP was not identified until the bottle was opened and the contents were smelled by the officers. If appellant retained a privacy interest in the contents of the bottle further questioning to the extent permitted during a detention (see, e. g., People v. Manis (1969) 268 Cal.App.2d 653, 74 Cal.Rptr. 423) should have occurred to determine if, under any theory, there was a right to open the bottle without the benefit of a search warrant. The only theory upon which to begin to construct an argument would be that the contents of the bottle were in plain view and reasonably suspected to contain contraband. The majority opinion states that Officer Pytel could see the contents of the bottle through the glass, that it contained Sherman cigarettes and that when the bottle was opened a strong odor of PCP emitted from the cigarettes. Assuming that this is so,¹ in the absence of any testimony concerning the officer's experience or expertise (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 563-565, 128 Cal.Rptr. 641, 547 P.2d 417), the securing of the bottle while a search warrant was procured (see People v. Dalton (1979) 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467) would have been proper, but opening it was not. (Ibid.) (Compare People v. Lilienthal (1978) 22 Cal.3d 891, 899, 150 Cal.Rptr. 910, 587 P.2d 706.)

Accordingly, I must dissent from the judgment of affirmance.

FOOTNOTES

1.  Inasmuch as on the trial level defendant did not advance the theory of violation of his right to assemble freely or utilize it as a ground for a search and seizure objection, we will not now entertain his contention based thereon and raised here for the first time. (People v. Privitera, 23 Cal.3d 697, 710, 153 Cal.Rptr. 431, 591 P.2d 919.)

2.  It could be argued that when Officer Pytel saw defendant running toward him before he ordered him to halt he saw the bottle in his hand. There is some confusion in the record on this point. However, in the absence of a showing Officer Pytel relied on this added circumstance, we consider this no further.

3.  At the preliminary hearing defense counsel argued that by dropping the bottle defendant did not abandon it; the prosecutor said it constituted abandonment. The motion in superior court was submitted on the transcript of testimony taken at the preliminary hearing without argument. We can assume that the superior court decided the motion primarily on the issue framed by defendant himself at the preliminary hearing.

1.  It is not disputed that the odor was not smelled until the bottle was opened. It is not quite so clear from the reporter's transcript, as I read it, that Officer Pytel saw the contents through the glass. On direct examination, he testified simply that the bottle was “[a] brown coffee-mate type container, containing Sherman Cigarettes, which emitted the odor of [ [ [PCP] …” and that after he “made this observation of the bottle” appellant was taken into custody. On cross-examination, he testified that when he retrieved the bottle he opened it up and then was able to smell the odor, and he noted that the bottle had a label on it covering most of the bottle and was of dark brown glass. On redirect examination, the officer testified that you can see the contents of the bottle through the glass by holding it up. But nowhere did the officer testify that he did in fact hold the bottle up to see the contents, before he opened it. This court has called for the bottle and inspected it, inside of a glassine envelope. The bottle is an ordinary small size Coffee-Mate container whose wrapper completely surrounds the glass surface except for a small space at the top and the bottom. Holding the bottle up to the light the outlines of what apparently are cigarettes can be seen.

LILLIE, Acting Presiding Justice.

HANSON, J., concurs. COLE, Associate Justice, dissenting.*