IN RE: MELVIN Dwayne L. (1980)

This is an appeal by a minor from orders of the juvenile court sustaining a petition charging him with burglary and committing him to the California Youth Authority. The court concluded that the burglary committed was of the second degree and set the maximum period of physical confinement at two years.

Melvin, the minor, advances the following contentions on appeal: (1) that he was illegally detained, and, hence, his suppression-of-evidence motion should have been granted; (2) that he was improperly committed to the Youth Authority; (3) that the trial court erred in disallowing evidence concerning the unsuitability of a Youth Authority placement; and (4) that he is entitled to credit for good time and work time spent in presentence custody.

We deal first with the contention regarding the motion to suppress evidence.

Melvin contends that the police officers had no reasonable suspicion to stop him on the street; that his detention, therefore, was illegal and all evidence obtained as a result of the detention should have been suppressed. The following evidence was presented by the prosecution in justification of Melvin's warrantless detention:

Officer Comie Scales testified that on February 21, 1979, he was a police officer for the City of Los Angeles. On that date, he was assigned to a special burglary patrol unit, concentrating on the six-block area between Pico and Olympic and Western and Arlington Streets. He stated that 25 to 30 burglaries had been committed between the hours of 10 a. m. and 3 p. m. during the preceding five-day period. He and his partner were driving in their patrol unit on a street within the named vicinity when they first observed the minor. He was a juvenile who appeared to the officer to be between 15 and 16 years of age. The minor was walking on the sidewalk in a normal manner and carrying a tan suitcase. The officer stopped his car next to the minor and then observed a clothing item—a small piece of fur—protruding therefrom. Because February 21 was a school day, the officer was concerned that the minor might be a runaway or that he was involved in a burglary.

The officers parked their car, got out of the vehicle and approached the minor. As Officer Scales drew near to the minor, he noticed an early make Eastman Kodak camera protruding from the minor's left jacket pocket.

The officer testified that it has been his experience, in the over 250 burglaries he has investigated, that about 15 to 20 percent of the perpetrators use a suitcase to carry away the stolen merchandise and that approximately 20 to 30 percent will use suitcases, pillow cases, bed clothing or other objects to carry their loot away. The officer said that he believed that the minor had been involved in a burglary in the area although he was not aware of any burglary having been committed that day.

The officer testified that he then questioned the minor, opened the suitcase with the minor's consent, and ultimately discovered fur coats, watches, jewelry, and two handguns, one of which was loaded. The minor was then placed under arrest.

Melvin relies primarily upon In re Tony C. (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957, in support of his argument that a detention based on a hunch or suspicion is unreasonable, and that officers may not detain young people solely because they are on the street during school hours. We agree that Tony C. clearly establishes both of these principles, and that the issue before us is whether Tony C. is dispositive of the case before us.

In In re Tony C., the California Supreme Court reiterated the following general principles regarding the constitutionality of a detention for investigation: “… 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. 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.” (Id. at p. 893, 148 Cal.Rptr. at p. 368, 582 P.2d at p. 959; fn. omitted.)

Applying these principles to the facts in In re Tony C., the Supreme Court concluded that the officers' testimony that they observed two young black males on the street during school hours, coupled with the statement of one officer, “I'm very aware that juveniles do commit crimes when they're supposed to be in school and they're not” (Id. at p. 896, 148 Cal.Rptr. at p. 370, 582 P.2d at p. 961), was insufficient to justify the detention in that case.

We conclude that the facts in the case before us are not significantly different from the facts found in Tony C. In the instant case, as in Tony C., we have a minor who is observed walking on the street during school hours and doing so in a perfectly normal fashion. The Attorney General argues that, in the case at bench, the officers were in possession of substantially more information on which to base a suspicion of criminal activity. But this argument is lacking in merit. Officer Scales testified that this was a “high crime” area. Such a justification for a detention was condemned in Tony C. Nor is this factor free from condemnation by reason of the additional testimony that there had been 25 to 30 day-time burglaries within this area over a fairly recent period of time.

The officer observed what appeared to be a portion of a fur coat protruding from the suitcase carried by the minor. But such observation occurred after the officer had already decided that Melvin should be detained. The additional fact that a portion of a fur coat was protruding from the suitcase of Melvin who was walking along the street in a normal manner—a place where he had a right to walk—cannot constitute “articulable facts causing him [the officer] to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person [Melvin] he intends to stop or detain is involved in that activity.” (In re Tony C., supra, 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 368, 582 P.2d 957, 959.)

Having no justification for driving the police vehicle along the side of Melvin for the purpose of detaining him, the presence of a camera in Melvin's pocket, observed when Melvin was confronted by the officer, cannot add to the “articulable” facts which were insufficient to justify the officers in proceeding to exit from their vehicle and commit an unlawful detention of Melvin.

The argument is advanced that the police officer's knowledge that many burglaries result in the perpetrators thereof carrying away the stolen goods in a suitcase is a fact of considerable consequence. This argument that such knowledge gives an officer an expertise to determine what constitutes “reasonable suspicion” is fallacious and untenable. To accept this premise would justify a detention of any person walking or standing on a public street in a so-called “high crime” area and carrying a suitcase. Such an intrusion upon the rights of persons to walk the public streets cannot be accepted as constitutionally sanctioned or supported.

It is suggested that “[c]ircumstances and conduct which would not excite the suspicion of the man on the street might be highly significant to an officer who had had extensive training and experience …” (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 827, 91 Cal.Rptr. 729, 742, 478 P.2d 449, 462.) This principle set forth in Kiefer is certainly a viable one under some circumstances. But under the circumstances presented in the case at bench, the principle of an officer's expertise cannot be used to convert an officer's hunch into a reasonable suspicion.

We recognize that the In re Tony C. court made the following observation: “The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal—to ‘enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.’ [Citation.]” (In re Tony C., supra, 21 Cal.3d 888, 894, 148 Cal.Rptr. 366, 369, 582 P.2d 957, 960.) But this observation has application only when the possibility of an innocent explanation is invoked in circumstances which are capable of reasonably leading to a reasonable suspicion of criminal conduct. We hold that the circumstances present in the instant case do not rise to the level of being sufficient to justify the police officers in having a reasonable suspicion that Melvin had been engaged in unlawful activity. Melvin's detention and subsequent search and arrest constituted a violation of his constitutional right to be free from an unreasonable seizure and search. Thus, his motion to suppress evidence should have been granted.

Since the error in denying his motion to suppress evidence requires a reversal of the orders from which the appeal has been taken (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; People v. Duran (1976) 16 Cal.3d 282, 127 Cal.Rptr. 618, 545 P.2d 1322), we need not discuss the remainder of Melvin's contentions.

The orders appealed from are reversed.

I dissent. My review of the record impels the conclusion that the detention was justified.

The evidence developed that on February 21, 1980, Officer Scales was assigned to a special burglary patrol unit, concentrating on a six-square block area which had been hit by a rash of burglaries, 25 to 30 in number, over the immediately preceding five-day period. They were daytime burglaries which occurred between the hours of 10 a. m. and 3 p. m. The officer was experienced in his job, having investigated more than 250 previous burglary complaints.

It was about 2:25 p. m., while Officer Scales and his partner, in uniform and in their black and white vehicle, were patrolling the vicinity where the recent daytime burglaries had occurred, when they observed the appellant minor walking along the sidewalk carrying a suitcase. The patrol car was proceeding northbound. The minor was walking southbound. The patrol car stopped in the street next to where the minor was walking on the sidewalk.

When the officer testified he stopped “next to” the minor, he explained that the patrol car was about “15 to 20 feet” away from the minor. At this time, and before exiting the police car, the officer observed “an article of clothing that appeared to be a fur protruding out of the side of the suitcase.” On direct examination Officer Scales had testified: “I believed the fur to be a mink coat.” Later on cross-examination he acknowledged that, at that point, he could not really tell that the fur was actually mink. As to the size of the portion that was sticking out of the suitcase, the officer testified it was protruding “about five inches.” By this time the officer had formed the suspicion that the minor could be involved in the recent burglaries in the area.

Officer Scales was in the process of exiting the vehicle to talk to the minor when he made the additional observation of a camera sticking out of the minor's jacket pocket. Officer Scales testified that it “appeared to be a sophisticated type camera … one of the early make Kodak, Eastman Kodak cameras.” He then approached and asked the minor what was in the suitcase. The minor responded, “some mink coats.” Asked where he got the camera and the suitcase, the minor answered, “From a friend down the street named Lucky.” Upon then being asked if he could tell them where his friend lived in order that they might “check it out,” the minor told him that “He forgot exactly where Lucky lived.”

Upon completion of the direct and cross-examination of Officer Scales, the trial judge further questioned him as to the exact chronology of events, as follows:

By the court:

“Q. You say you were in the car or out of the car when you saw the fur protruding from the suitcase?

A. I was in the car, Your Honor.

Q. You were in the car. Were your suspicions aroused at that time or were they aroused after you got out of the car?

A. Well, I would say at that time.

Q. At that time, while you were still in the car?

A. As I was—as I was—

Q. Was the minor still walking at that time, or was he stopped?

A. He was still walking at that time.

Q. I see. Now, when you were in the car, could you see the camera, or could you see the camera for the first time when you got out of the car?

A. I believe I saw the camera just as I stopped—as I exited the car.

Q. I see. Now, when you stopped, did the minor stop immediately or did he proceed to walk?

A. He proceeded to walk, and I asked him if he would stop for a minute.”

The minor also gave testimony with regard to the detention issue which closely parallels that of Officer Scales. Under questioning by his attorney, he testified as follows:

“Q. Melvin, were you walking with a suitcase that day?

A. Yes, I was.

Q. Did the police stop you at some point?

A. Yes, they did.

Q. What happened when the police stopped you? How did they stop you?

A. Well, I was—I was walking southbound on St. Andrews. I had just left off of Eleventh Street from a hot-dog stand, and I looked up and I seen two cops cruising down the street. And it looked like, you know, they was having—you know, just got off of lunch, and they was smiling, and so, you know, I was just walking. And the cop on the passenger side says, ‘He looks like a dope dealer.’

Q. Just a second. He said that to you?

A. No. He said that to his partner, but he was looking at me when he said that.

Q. Was the car stopped at that point when he saw you?

A. It was going kind of slow, about five or six miles an hour.

Q. The police car was following you along as you were walking?

A. Well, like I was walking southbound, and they was coming northbound, but they was, you know, slowing down, observing me, looking at me while I was walking.

Q. Okay. Then what happened?

A. The other one said, ‘Well, wait a minute.’ Then he stopped. The driver got out, then he walked behind me. Then the guy in the passenger side got out, and he was talking to me. And the driver of the car walked around—walked behind me, and he said, ‘What's that inside the case?’ And I said, ‘It wasn't nothing but some furs that Lucky gave me to take up to the guy's house to get money for them, you know.”’

Contrary to the conclusion reached by the majority, the only real similarity that I find between this matter and the case of In re Tony C. (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957, upon which the majority rely, is that in both cases the suspects were young and on the street during school hours when the detention by the officers occurred.

The present case does not involve the “based-on-a-hunch” type detention such as that described in Tony C. There our Supreme Court concluded that an officer was not justified in stopping the minor defendant and another 13-year-old boy for the purpose of investigating their possible involvement in criminal activity, where all that appeared was that the boys were walking along the sidewalk during noon hour of a school day and the officer had information that several burglaries had occurred in the area and that the suspects were three males (of unspecified ages) of the same race (black) as the two boys.

Here the officer was on a specific burglary suppression assignment, in a narrowly drawn area where a rash of burglaries had recently been reported, when the minor appellant was observed carrying the suitcase with a portion of the fur coat sticking out. In my opinion this observation, made by a police officer experienced in burglary detection, called for further investigation. As he was alighting from the car to carry out his investigation, the observation of the “sophisticated type” camera sticking out of the minor's jacket pocket was an additional factor reasonably adding to the suspicions then entertained by the officer.

While a plausible explanation for the minor's possession of these items could have been forthcoming, this does not negate the fact that investigation was plainly called for. It is a matter of common knowledge that furs and cameras are high on the list of most often stolen property. As the court stated in In re Tony C., supra, 21 Cal.3d at page 894, 148 Cal.Rptr. at page 369, 582 P.2d at page 960: “[A] reasonable suspicion of involvement in criminal activity will justify a temporary stop or detention. Under that standard, if the circumstances are ‘consistent with criminal activity,’ they permit—even demand—an investigation: the public rightfully expects a police officer to inquire into such circumstances ‘in the proper discharge of the officer's duties.’ (Citation.)”

The majority assert that there was “no justification for driving the police vehicle along the side of Melvin for the purpose of detaining him,” and therefore the observations made from that point on cannot add to the “articulable” facts to support the detention. But the evidence was that the officers stopped the patrol car on the public street 15 to 20 feet away from the minor; that this is where the observations in question were made, and while the minor was still walking and not detained.

It is further asserted that these observations, i. e., of the fur coat and camera, cannot be utilized to support the detention because the officer “had already decided that Melvin should be detained.” As to just when the officer decided he would detain the minor is not abundantly clear from the record. My review of it draws me to the conclusion that the officer's intent was formed after he observed the fur coat and before he exited the police car. He testified that, as he exited, he observed the camera. But, in any event, the actual detention (the curtailment of the minor's freedom of movement) did not in fact occur until the minor was stopped by the officer, and the testimony was that he was still walking on the sidewalk when the questioned observations were made. The reasonableness of a detention is to be determined by all of the circumstances existing at the time of the detention, and without regard to when the original intention to detain was formed.

Having concluded that the trial judge properly denied the motion to suppress, and finding without merit the additional assignments of error raised, I would affirm.

FOOTNOTES

FOOTNOTE.  

JEFFERSON, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

KINGSLEY, Acting P. J., concurs. MICHAEL L. BURKE, Associate Justice.*