GONZALEZ v. PEOPLE (1983)

BACKGROUND

Defendants Primitivo Gonzalez and Fernando Arcia filed petitions for writs of mandate/prohibition to reverse rulings of the superior court denying their respective 1538.5 motions to suppress evidence prior to trial (Health & Saf. Code, § 11352).   This court originally denied their petitions without opinion and the California Supreme Court on March 3, 1982, directed us to issue alternative writs with respect to the two petitions.

While the instant case was pending decision before this court the electorate passed Proposition 8 on June 8, 1982 (effective June 9, 1982) and the prior submission was vacated for the purpose of supplementary briefing and argument limited to the effect, if any, of the passage of Proposition 8.

On July 1, 1982 the instant cases were argued at the same time as the case of Wilson v. Superior Court, 134 Cal.App.3d 1062, 185 Cal.Rptr. 678 which presented similar issues.

On September 24, 1982 the July 1, 1982 submission was vacated since a petition for hearing on the Wilson case was pending before the Supreme Court and the matter was ordered resubmitted following order from the Supreme Court on the petition for hearing filed in the Wilson case.

On November 18, 1982 the State Supreme Court granted the petition for a hearing filed by the defendant in the Wilson case.

FACTS

Deputy McGavock of the Metro County Police Department in Florida was assigned to narcotics investigation at the Miami International Airport on September 22, 1981.   He testified at the 1538.5 hearing that on that date he observed a man at the Pan American ticket counter in the Miami Airport.   The man would continually look around closely at other people, would shift his weight from foot to foot, and appeared nervous.   The actions continued for about 5 to 10 minutes.   When the man left the ticket counter, he looked over his shoulder several times.

Deputy McGavock stopped the man, identified himself as a sheriff's deputy, and asked permission to talk with the man for a moment.   The officer told the man that the man did not have to talk with the officer if the man did not want to.   When the officer confirmed that the man was not under arrest, the man agreed to talk with him.   The officer asked for identification and the man stated that the only identification he had was his airline ticket which was in the name of “J. Ortiz.”   The officer asked permission to search the blue tote bag the man was carrying but the man said that he did not have time before his flight left.   The officer pointed out that the flight did not leave for an hour but the man stated that he would rather that the officer not search the tote bag.   Then he left and entered the gate for Pan American departures.

Deputy McGavock made a phone call to the Los Angeles police and spoke to Officer Michael Celmer because he suspected the man might be engaged in narcotics' activities.   He described the events and the man (a male Latin in his late 20's, 5′7″ with a thin mustache, light kinky hair, gray clothing, and a dark shirt carrying a blue tote bag.)   Although Deputy McGavock did not actually see the man board the plane for Los Angeles because of other duties, he told Detective Celmer that the man would be arriving on Flight 873 from Miami.

Detective Celmer at Los Angeles International Airport following the call from McGavock monitored passengers deplaning from the Miami flight.   He first noticed defendant Gonzalez leaving the airplane.   Gonzalez appeared nervous, was looking around the terminal, looked in the officer's direction, and turned around.   He was with another man, later identified as Mena, who was not charged.   Gonzalez was walking at a brisk pace and had no luggage but he was carrying a small black purse.

Then the officer noticed Defendant Arcia, who was walking a few feet behind Gonzalez and Mena, and carrying a blue tote bag.   Detective Celmer said Defendant Arcia “looked exactly like the individual that was described by McGavock” since his hair and clothes matched the description of those of the man at the Miami airport.   Arcia did not have a mustache, but he had a red shape below his nose which made it appear as if he had just shaved off a mustache.

The detective found it unusual in that it appeared that the three men knew one another but they did not acknowledge each other.   He said that Arcia appeared nervous but not as nervous as petitioner Gonzalez.   The three walked to the street area and Arcia appeared to make several calls from a telephone booth while the other two just paced back and forth outside the booth and talked to one another.

Arcia nodded to Gonzalez when he left the phone booth about 10 minutes later, and Gonzalez acknowledged the nod.   Gonzalez and Mena then walked to the traffic island.   Arcia followed and joined them and all three began talking.

At this point Detective Celmer and Agent Marcello of the Drug Enforcement Administration approached the men.   Detective Celmer went to Gonzalez because in his opinion Gonzalez was displaying certain characteristics the officer had observed in the past in persons he arrested for possession of narcotics—Gonzalez was nervous, was carrying no luggage despite his 3000-mile trip, appeared to be going to a large hotel nearby, and came from Miami, a large source of narcotics.   The detective, who had given Agent Marcello the information received from Deputy McGavock, also believed that Arcia was the person who had been described by Deputy McGavock.   The officer also found it unusual that it took such a long time for the three men to acknowledge that they were together.

Detective Celmer after identifying himself as a police officer asked Gonzalez if the officer could talk to them for a moment.   Gonzalez, who spoke English, replied “yes,” and the officer informed Gonzalez that he did not have to speak with the officer.   The officer then asked Gonzalez for identification but told Gonzalez that Gonzalez did not have to show the officer any identification.   Gonzalez said he did not have any identification but gave the officer an envelope containing three airline tickets.   Two of the tickets were in Gonzalez' name but the other ticket was in a third name which the officer did not recall.

The officer asked which one he was, and Gonzales replied “I am Primitivo Gonzalez.”   When the officer informed Gonzalez that the tickets were not identification, Gonzalez said he had none.   The officer then asked what was in the black purse Gonzalez was carrying.   Gonzalez with a startled look handed him the purse and said:  “I don't have anything in here, here.”   The officer asked if he could look inside the purse and Gonzalez said “Yes.   look.”  The officer looked inside and saw men's socks and underwear and a piece of paper with writing.   When he reached in to remove the paper, he found there inside the underwear a clear plastic bag containing cocaine.   A second plastic bag of cocaine was found in the purse.

Detective Celmer placed Gonzalez under arrest and told the other officers to place Arcia and Mena under arrest.   The reason for ordering the arrests of Arcia and Mena was that they were with Gonzalez, that narcotics had just been found on Gonzalez, that Arcia appeared to be the person described by Deputy McGavock and that the officer felt that Arcia was possibly in possession of narcotics.   The officer also stated that other factors were that they were from a source city for narcotics, and the officer believed the behavior of the men in the airport was suspicious.

A driver's license in the name of Primitivo Gonzalez was later discovered in Gonzalez' wallet.

Agent Marcello, a federal narcotics agent, testified that detective Celmer had related to him the facts of the phone conversation with Deputy McGavock, that he saw Arcia who matched the description supplied by Deputy McGavock, that he observed Arcia walking out of the airport, and that he approached Arcia at the traffic island outside the airport.   He had noticed Arcia looking nervous and looking all around and had seen him make phone calls while his two companions waited.   The agent, wearing plain clothes, approached Arcia and Mena.   He testified that “I showed them my identification, and I stated that I was a federal agent and that I was conducting a narcotics' investigation.   I then asked both gentlemen if they would mind showing me some identification.”   Arcia said he would not mind showing identification but he had none.

In response to Agent Marcello's question as to whether he was a citizen of the United States, Arcia said he was not.   The federal agent then asked to see his passport and visa or green card.   Arcia stated that he had left his passport in Miami.   The federal agent then decided to detain Arcia for further investigation.   Shortly thereafter, Officer Celmer said he had found contraband on Gonzalez and told the federal agent to place the two men under arrest.   The federal agent testified that the two had been free to go until Arcia said he did not have a passport with him.

It was stipulated that another witness could testify that the office where the narcotics' investigation of Arcia was conducted following his arrest was checked and found free of contraband prior to Arcia's entry.   After Arcia was left alone in the room, a container with contraband was found there about 3 feet from his chair.

At the conclusion of the 1358.5 hearing, Judge Fukuto ruled:

“․ I find that Ortiz or Arcia, if it were Arcia, was not detained in Miami.   I find that Gonzalez was not detained involuntarily, and I find there was a consent that was not a submission to authority.

“Mr. Hanson [attorney for Gonzalez] raised a good point as to Mr. Gonzalez' conduct in handing over the purse, but I have no evidence to the contrary.   I find that consent.   There was no contention [sic ] of Mr. Gonzalez.   The consent to search was voluntary and not a submission to authority.

“Then from there on, I do find that Arcia was detained, but whether that detention was deemed to be improper, I am not saying that it was.   I think it was a case for saying that it was justified, but whether it was or was not, once that cocaine was found in Gonzalez' purse, the arrest of Mr. Arcia was justified.

“The motion to suppress is denied.”

ISSUES

Does the evidence support the following determinations by the trial court:  (1) that Gonzalez was not improperly detained, and that Gonzalez voluntarily consented to the search of his purse;  and (2) that the detention of Arcia, if any, was justified.

DISCUSSION

The initial issue with respect to each defendant is whether any detention occurred in view of the passage on June 8, 1982 by the people of California of Proposition 8 (effective June 9, 1982).   The 1538.5 hearing in the case against defendants Gonzalez and Arcia was conducted on December 22, 1981.   Defendants applied for writs of mandamus/prohibition;  and during the pendency of proceedings thereon, on June 8, 1982, Proposition 8, the “Victims' Bill of Rights,” was enacted in article I, section 28, of the California Constitution.  (See “Background,” supra).

 We conclude that Proposition 8 is impervious to challenge on grounds of constitutional eligibility to be on the June primary ballot, suitability under the single-subject rule, fitting the criteria for constitutional amendments, and is in general harmony with constitutional principles.   (Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274.)

 We further conclude that the “Right-to-Truth-in-Evidence” provision (§ 28(d)) of Proposition 8 ¹ repealed by implication Penal Code section 1538.5 and modified article I, sections 13 and 24, of the California Constitution by abrogating California decisional law imposing higher standards for searches and seizures than under federal law.   We further conclude that the “Truth-in-Evidence” provision of Proposition 8 has retroactive effect without doing violence to the defendants' constitutional rights against ex post facto laws or abridging their right to due process or equal protection of the laws.  (See also, McClanahan v. Superior Court (1983) 139 Cal.App.3d 31, 188 Cal.Rptr. 513.)

I

We therefore turn to federal law to resolve the detention issue presented by defendant Gonzalez in the case at bench.

The language in the United States Supreme Court case of United States v. Mendenhall (1980) 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 pertaining to the “detention” issue is dispositive of the defendant Gonzalez's claim that he was improperly detained.   The California cases of People v. Bower (1979) 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115 and In re Tony C., (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957, have been rendered inapplicable for resolution of the detention issue by reason of the passage of Proposition 8 in June 1982 and the fact that the 1979 Bower and the 1978 In re Tony C. opinions did not consider the United States Supreme Court's 1980 Mendenhall decision.   As stated by Mr. Justice Powell in his concurring opinion, joined by the Chief Justice and Mr. Justice Blackmun, in Reid v. Georgia (1980) 448 U.S. 438 at page 443, 100 S.Ct. 2752 at page 2755, 65 L.Ed.2d 890:  “We ․ do not consider the initial seizure question, that issue remains open for consideration by the state courts in light of the opinions in Mendenhall.”

Pertinent and instructive here is the language in Mendenhall discussing the distinction between an intrusion amounting to a “seizure” (detention) of the person and an “encounter” which intrudes on no Fourth Amendment rights against an unreasonable seizure.²

We first quote from the lead opinion by Mr. Justice Stewart joined by Mr. Justice Rehnquist:  “The Fourth Amendment's requirement that searches and seizures be founded upon an objective justification, governs all seizures of the person, ‘including seizures that involve only a brief detention short of traditional arrest.  Davis v. Mississippi, 394 U.S. 721 [89 S.Ct. 1394, 22 L.Ed.2d 676] (1969);  Terry v. Ohio, 392 U.S. 1, 16–19 [88 S.Ct. 1868, 1877–79, 20 L.Ed.2d 889] (1968).’  United States v. Brignoni-Ponce, 422 U.S. [873], at 878 [95 S.Ct. 2574, at 2578, 45 L.Ed.2d 607].   Accordingly, if the respondent was ‘seized’ when the DEA agents approached her on the concourse and asked questions of her, the agents' conduct in doing so was constitutional only if they reasonably suspected the respondent of wrongdoing.   But ‘[o]bviously, not all personal intercourse between policemen and citizens involves “seizures” of persons.   Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’  Terry v. Ohio, supra, 392 U.S., at 19, n. 16 [88 S.Ct., at 1879 n. 16].”  (446 U.S. at p. 551, 100 S.Ct. at 1875.) ³

“․ We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.   Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.   See Terry v. Ohio, supra, [392 U.S.] at 19, n. 16 [88 S.Ct., at 1879, n. 16];  Dunaway v. New York, 442 U.S. 200, 207, and n. 6 [99 S.Ct. 2248, 2253, and n. 6, 60 L.Ed.2d 824];  3 W. LaFave, Search and Seizure 53–55 (1978).   In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.  [¶]  On the facts of this case, no ‘seizure’ of the respondent occurred.   The events took place in the public concourse.   The agents wore no uniforms and displayed no weapons.   They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents.   They requested, but did not demand to see the respondent's identification and ticket.   Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest.   The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions.   Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official.   See Terry v. Ohio, 392 U.S., at 31, 32–33 [88 S.Ct., at 1885–1886] (Harlan, J., concurring).   See also ALI, Model Code of Pre-Arraignment Procedure § 110.1(1) and commentary, at 257–261 (1975).   In short, nothing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents' initial approach to her was not a seizure.  [¶]  Our conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed.   See Schneckloth v. Bustamonte, supra.   We also reject the argument that the only inference to be drawn from the fact that the respondent acted in a manner so contrary to her self-interest is that she was compelled to answer the agents' questions.   It may happen that a person makes statements to law enforcement officials that he later regrets, but the issue in such cases is whether it was made voluntarily.”  (446 U.S. at p. 554, 100 S.Ct. at p. 1877.)  (Italics added.)

Of interest is Mr. Justice Powell's separate opinion in Mendenhall joined by the Chief Justice and Mr. Justice Blackmun concurring in part and concurring in the judgment.   This opinion did not reach the government's contention that the DEA agents did not “seize” the defendant within the meaning of the Fourth Amendment.   Mr. Justice Powell assumed for the purpose of his opinion that the stop did constitute a “seizure” and held—as did the District Court—that the federal agents had reasonable suspicion that the defendant was engaging in criminal activity, and, therefore, that they did not violate the Fourth Amendment by stopping the defendant for routine questioning.

The separate opinion of Mr. Justice Powell stresses the compelling interest in detecting those who would traffic in deadly drugs which flow through airports and the necessity that courts in applying the test of “reasonableness” need not ignore the expertise of law enforcement officials gained from special training and experience in stemming that flow.

We quote at length from Mr. Justice Powell's opinion, pages 561 through 565, 100 S.Ct. at pages 1880–1882:  “Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968), establishes that a reasonable investigative stop does not offend the Fourth Amendment.   The reasonableness of a stop turns on the facts and circumstances of each case.   In particular, the Court has emphasized (i) the public interest served by the seizure, (ii) the nature and scope of the intrusion, and (iii) the objective facts upon which the law enforcement officer relied in light of his knowledge and expertise.   See Brown v. Texas, 443 U.S. 47, 50–51 [99 S.Ct. 2637, 2640–2641, 61 L.Ed.2d 357] (1979);  Delaware v. Prouse, 440 U.S. 648, 654–655 [99 S.Ct. 1391, 1396–1397, 59 L.Ed.2d 660] (1979);  United States v. Brignoni-Ponce, 422 U.S. 873, 879–883 [95 S.Ct. 2574, 2579–2581, 45 L.Ed.2d 607] (1975);  Terry v. Ohio, supra, [392 U.S.] at 20–22 [88 S.Ct. at 1879–1880].  [¶]  The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit.   Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances.   Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates.   The profits are enormous.   And many drugs, including heroin, may be easily concealed.   As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement.  [¶]  To meet this pressing concern, the Drug Enforcement Administration since 1974 has assigned highly skilled agents to the Detroit Airport as part of a nationwide program to intercept drug couriers transporting narcotics between major drug sources and distribution centers in the United States.   Federal agents have developed ‘drug courier profiles,’ that describe the characteristics generally associated with narcotics traffickers.   For example, because the Drug Enforcement Administration believes that most drugs enter Detroit from one of four ‘source’ cities (Los Angeles, San Diego, Miami, or New York), agents pay particular attention to passengers who arrive from those places.   See United States v. Van Lewis, 409 F.Supp. 535, 538 (ED Mich.1976), aff'd, 556 F.2d 385 (CA6 1977).   During the first 18 months of the program, agents watching the Detroit Airport searched 141 persons in 96 encounters.   They found controlled substances in 77 of the encounters and arrested 122 persons.  409 F.Supp., at 539.   When two of these agents stopped the respondent in February 1976, they were carrying out a highly specialized law enforcement operation designed to combat the serious societal threat posed by narcotics distribution.  [¶] Our cases demonstrate that ‘the scope of [a] particular intrusion, in light of all the exigencies of the case, [is] a central element in the analysis of reasonableness.’  Terry v. Ohio, supra, [392 U.S.] at 18, n. 15 [88 S.Ct., at 1878 n. 15].   The intrusion in this case was quite modest.   Two plainclothes agents approached the respondent as she walked through a public area.   The respondent was near airline employees from whom she could have sought aid had she been accosted by strangers.   The agents identified themselves and asked to see some identification.   One officer asked respondent why her airline ticket and her driver's license bore different names.   The agent also inquired how long the respondent had been in California.   Unlike the petitioner in Terry, supra, at 7 [88 S.Ct., at 1872], the respondent was not physically restrained.   The agents did not display weapons.   The questioning was brief.   In these circumstances, the respondent could not reasonably have felt frightened or isolated from assistance.  [¶] In reviewing the factors that led the agents to stop and question the respondent, it is important to recall that a trained law enforcement agent may be ‘able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.’  Brown v. Texas, supra, [443 U.S.] at 52, n. 2 [99 S.Ct., at 2641, n. 2].   Among the circumstances that can give rise to reasonable suspicion are the agent's knowledge of the methods used in recent criminal activity and the characteristics of persons engaged in such illegal practices.   Law enforcement officers may rely on the ‘characteristics of the area,’ and the behavior of a suspect who appears to be evading police contact.  United States v. Brignoni-Ponce, 422 U.S., at 884–885 [95 S.Ct., at 2582].  ‘In all situations the officer is entitled to assess the facts in light of his experience.’   id., at 885 [95 S.Ct., at 2582].  [¶] ․  [¶] The District Court, which had an opportunity to hear Agent Anderson's testimony and judge his credibility, concluded that the decision to stop the respondent was reasonable.   I agree.   The public interest in preventing drug traffic is great, and the intrusion upon respondent's privacy was minimal.   The specially trained agents acted pursuant to a well-planned, and effective, federal law enforcement program.   They observed respondent engaging in conduct that they reasonably associated with criminal activity.   Furthermore, the events occurred in an airport known to be frequented by drug couriers.   In light of all of the circumstances, I would hold that the agents possessed reasonable and articulable suspicion of criminal activity when they stopped the respondent in a public place and asked her for identification.  [¶] The jurisprudence of the Fourth Amendment demands consideration of the public's interest in effective law enforcement as well as each person's constitutionally secured right to be free from unreasonable searches and seizures.   In applying a test of ‘reasonableness,’ courts need not ignore the considerable expertise that law enforcement officials have gained from their special training and experience.   The careful and commendable police work that led to the criminal conviction at issue in this case satisfies the requirements of the Fourth Amendment.”  (Fns. omitted.)

The recent case of United States of America v. Beale (9th Cir.1982) 674 F.2d 1327 is relevant and instructive.⁴  The Beale court held that the initial encounter by the police in Fort Lauderdale was not a seizure or detention under the Fourth Amendment.   There a detective of the County Sheriff's Department assigned to the Fort Lauderdale Airport detail suspicious of Beale's behavior approached Beale and a male companion, identified himself, explained that they were not under arrest, and requested that they answer a few questions and produce identification.   The Court stated at pages 1329–1330:  “Beale contends that the officer's initial approach and non-custodial questioning of him and his companion constituted a ‘seizure’ or detention under the Fourth Amendment, requiring founded suspicion or probable cause.   The District Court, however, concluded otherwise and we agree.   The suspects' mobility was not impaired;  the situation was non-coercive;  Berks did not request that they follow him or otherwise alter their destination, schedule, or location;  the questions were routine and brief, and in an atmosphere not dominated by law enforcement personnel;  and the suspects agreed to answer Berks' queries ‘in a spirit of apparent cooperation.’   See Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968);  United States v. Fry, 622 F.2d 1218, 1219–21 (5th Cir.1980) (per curiam);  United States v. Elmore, 595 F.2d 1036, 1041–42 (5th Cir.1979), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980);  3 W. La Fave, Search and Seizure:  A Treatise on the Fourth Amendment 48–55 (1978).  [¶] Thus, we need not consider whether ‘founded’ or ‘articulable’ suspicion existed at that time.   Cf. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980);  Brown v. Texas 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979);  Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972);  Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);  United States v. Corbin, 662 F.2d 1066, 1068–71 (4th Cir.1981.)”

In the case at bench defense counsel argues that the United States Supreme Court case of Reid v. Georgia, supra, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 controls.   We disagree.   The Reid case is markedly distinguishable from the case at bench factually and procedurally.   Moreover the language in the opinion of Mr. Justice Rehnquist (dissenting) and Mr. Justice Powell (concurring) joined by the Chief Justice and Mr. Justice Blackmun construing the limited ambit of Reid in light of Mendenhall renders Reid inapplicable.⁵

 Turning to the case at bench, having considered the United States Supreme Court cases of Terry, Mendenhall and Reid, and the Ninth Circuit case of Beale, we conclude that the record amply supports the trial court's finding.   It is also our independent finding (People v. Leyba, supra, 29 Cal.3d 591, 174 Cal.Rptr. 867, 629 P.2d 961) that Officer Celmer's initial contact with defendant Gonzalez was not a sufficient intrusion into the defendant's life to rise to the level which would put into effect the rules governing a detention and that defendant Gonzalez's motion to suppress as evidence the cocaine found in his purse was properly denied.

Here, Officer Celmer and Agent Marcello of the Drug Enforcement Administration (DEA) dressed in civilian attire merely approached defendant Gonzalez in a public place in the Los Angeles International Airport;  Officer Celmer identified himself as a police officer and asked Gonzalez if he (Officer Celmer) could talk to them a moment.   Defendant Gonzalez, who spoke English said “Yes.”   Officer Celmer advised defendant Gonzalez that he did not have to speak with him and did not have to show him identification.   There was no order to stop, no temporary restraint, no holding in custody, no physical restraint, no display of weapons, no threat of force or assertion of authority, and no pat down or putting on of hands.

“[There] is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets” (Terry v. Ohio, supra, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889, Mr. Justice White's concurring opinion), logic and common sense require that an officer dressed in street attire, in accordance with accepted and proper police procedures, identify himself for the obvious well-being of the person being addressed and the officer.   There is nothing in the record before us which suggests that defendant Gonzalez had any objective reason to believe at the time of the initial approach that his mobility was impaired and that he was not free to ignore the officer, disregard the request to talk with him and leave at will.   To the contrary, the record shows that defendant Gonzalez said “Yes” and displayed a spirit of apparent cooperation.

The circumstances surrounding the initial contact of defendant Gonzalez by Officer Celmer as described above are much less intrusive into the private life of defendant Gonzalez than that experienced by the defendants in the Beale case in which the conduct of the law enforcement officers at an airport was held not to constitute a detention.   In short, the facts of the instant case in respect to defendant Gonzalez fall into the category of a mere encounter as distinguished from a detention as those terms are described in the United States Supreme Court Mendenhall case.

In the case at bench clearly defendant Gonzalez was standing still and was not even stopped by Detective Celmer nor was he “accosted.” ⁶  The officer identified himself, told Gonzalez he was free to go and did not have to answer questions, but Gonzalez freely and voluntarily did so.   Finally, upon the officer's request, Gonzalez consented to a search of his black purse and handed it to Officer Celmer.   Then the officer, thinking some identification or information might be disclosed on the paper he saw inside Gonzalez's purse, thrust in his hand and then discovered the contraband (cocaine).

Although the issue of Gonzalez' consent to the search was not vigorously pursued, we perceive that the record amply supports the trial court's conclusion that there was no detention and that Gonzalez voluntarily gave consent to the search of the purse.

II

With respect to defendant Arcia, the trial court found that a detention had occurred, but that it was justified presumably by the existence of facts supporting probable cause for investigation on the part of Agent Marcello.   Under the principles of Beale and Mendenhall there is nothing to distinguish the conduct of Agent Marcello from that of Detective Celmer at the time the initial conversations were initiated.   The agent did not stop defendant Arcia;  the defendant was standing engaged in conversation with his companions and the agent approached, identified himself and stated that he was conducting a narcotics' investigation and asked for identification.   Arcia said he would comply but he had no identification.

However, once Arcia declared that he was not a citizen of the United States but that he had neither his passport nor a visa or green card, Agent Marcello testified that he decided to detain Arcia for investigation.   At that point, the agent declared that he decided Arcia was no longer free to leave although he did not say he communicated this to Arcia.   The agent had at that time knowledge that Arcia matched Deputy McGavock's description, that he had deplaned with Gonzalez from Miami which is a known source city, that their behavior was similar to that of numerous other persons who had been found to engage in narcotics' activities, and that he was unable to produce identification, passport or visa or green card.

Soon thereafter Officer Celmer told the federal agent he had found cocaine in Gonzalez' possession and instructed him to arrest Arcia.   Under the circumstances, the criteria of Mendenhall relating to the reasonable belief of the defendant would suggest that no detention of Arcia in fact occurred prior to his arrest.   Assuming, arguendo, that there was a detention of Arcia, it was amply justified by the knowledge and belief of the federal agent that Arcia matched the description and probably was in fact the person described by Deputy McGavock.   In any event the arrest of Arcia was justified on the basis of the facts known to the officer, the behavior of Arcia's companions, and the finding that Gonzalez possessed cocaine.

Although defendant Arcia relies upon Reid v. Georgia (1980) 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890, the controlling criteria for determining a detention were set forth in the subsequent decision of United States v. Mendenhall, supra, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497.   Mr. Justice Powell in his concurring opinion in Reid observed:  “Because, we similarly do not consider the initial seizure question in our decision today, that issue remains open for consideration by the state courts in light of the opinions in Mendenhall.”  (Italics added.)  (Reid v. Georgia, supra, 448 U.S. at p. 443, 100 S.Ct. at p. 2755.)   For this reason the reliance of the dissent on the criteria set forth in the Reid decision with respect to seizure is misplaced.

Following Arcia's arrest he apparently made an effort to abandon contraband which was in his possession at that time by depositing it in the office where he was taken for further questioning.   Thus, in retrospect, it may be perceived that the officer's reasonable belief in probable cause for the arrest was accurate.

III

In any event, assuming arguendo that the pre-Proposition 8 statutory law of California embodied in Penal Code section 1538.5 and the cases of People v. Bower, supra, 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115, and In re Tony C., supra, 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957, were controlling and applicable to these cases, we would nonetheless reach similar conclusions with respect to the initial encounters made by Detective Celmer and Agent Marcello of Gonzalez and Arcia respectively.   These encounters did not, under the totality-of-the-circumstances, constitute intrusions into the activities of the defendants sufficient to bring into effect the rules applicable to a detention.  (See the following cases from this 2d App.Dist.:  People v. Jones (1979) 96 Cal.App.3d 820, 158 Cal.Rptr. 415 (per Lillie, Acting P.J., Hanson (Thaxton), J., and Ackerman, J.* conc.);  People v. Denman (1980) 112 Cal.App.3d 1003, 169 Cal.Rptr. 742 (2d App.Dist., Div. 4, per Stephens, J., Kaus, P.J., and Ashby, J., conc.);  In re Danney E. (1981) 121 Cal.App.3d 44, 174 Cal.Rptr. 123 (per Spencer, P.J., Lillie, J., and Hanson (Thaxton, J., conc.))

DISPOSITION

We do not remand the matter back to the superior court to reconsider in light of United States v. Mendenhall, supra, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 because of the applicability of federal decision law in the wake of Proposition 8.   The record shows that under all the circumstances surrounding the initial encounters that no reasonable person would believe that the defendants were not free to leave.  (United States v. Mendenhall, supra, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497.)

The alternative writ heretofore issued is discharged and a peremptory writ is denied.⁷

By virtue of the procedural history of the case at bench specifically and the slow and costly manner in which California's intermediate courts of review process criminal appeals generally by reason of antiquated and outmoded procedures, I feel compelled to speak out on the subject of court reform.¹

Relevant here is an extensive study on the high cost of operating the clogged American civil court system recently released by the Rand Corporation.   Reporting on the study in the San Francisco Examiner it was stated:  “Little wonder there is widespread lay dissatisfaction with the civil courts.   Add to that the loss of confidence in the criminal courts, where true justice often is derailed to satisfy the demands of legal formality, and you have a situation in which citizen discontent should arouse a fury of action on the part of the bar.   But we don't intend to hold our breath.   Cosmetic remedies are regularly offered, but the cases continue to pile up and the litigants' money continues to diminish.

“The chief justice of the United States wields enormous influence on the system of justice;  he should bring it more to bear, going beyond an annual speech to the American Bar Association.   Couldn't we hear from some of the other justices, speaking in ringing tones, demanding to be heard and followed?

“It would help if a sizable segment of the bar would allow itself to become vocally indignant at the slow and costly course of the courts, many of whose enormous backlogs are a scalding commentary on the system as it now functions.   If justice delayed is justice denied, then there is a massive denial in this country.”  (Emphasis added.)  (See, Open Forum, “Staggering Cost of Justice”, The Los Angeles Daily Journal, February 4, 1983).

Chief Justice Warren E. Burger of the United States Supreme Court in public speeches and press interviews has repeatedly stressed that public confidence in our system of justice is indispensable and has spoken out on the urgent need for radical court reform, federal and state.   He has also pointed out that not only is it proper for judges to comment on but it is an absolute obligation of judges and lawyers to speak out to the legal profession, and to the public, to reform our system of justice so that the courts can be made more effective in serving the people by improving the quality of justice and insuring the prompt delivery of justice at the lowest possible cost.

In accepting the Fordham-Stein Award in 1978, the Chief Justice resolutely stated he had “[N]o thought of being deterred from letting the Congress, the President, and the people of this country know what is needed in the judicial system.”  (emphasis added.)  (See “Personal Viewpoint”, “It's Proper for Judges to Comment,” by Warren E. Burger;  Metropolitan News, October 31, 1978).

In his annual report on the state of the judiciary before the American Bar Association (ABA) in Chicago in 1982, the Chief Justice stated:

“The obligation of our profession is, or has long been thought to be, to serve as healers of human con-conflicts.   To fulfill our traditional obligation means that we should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense, and with a minimum of stress on the participants.   That is what justice is all about.

“The law is a tool, not an end in itself.   Like any tool, particular judicial mechanisms, procedures, or rules can become obsolete.   Just as the carpenter's handsaw was replaced by the power saw and his hammer was replaced by the stapler, we should be alert to the need for better tools to serve our purposes.

“Many thoughtful people, within and outside our profession, question whether that is being done today.   They ask whether our profession is fulfilling its historical and traditional obligation of being healers of human conflicts.   Although it may be too much to say that we lawyers are becoming part of the problem instead of the means to a solution, I confess there is more to support our critics than I would have thought 15 or 20 years ago.”  (Emphasis added.)

Chief Justice Burger in his remarks to the ABA's winter convention in New Orleans on February 6, 1983 concerning the state of the judiciary again spoke out on court reform, primarily directed at the caseload problem in the federal system, and laid some solutions to the problem on table.   Many of the same procedural and structural illnesses confronting the federal court system are also being experienced by California's reviewing courts.

The Chief Justice stated:

“These problems did not fall on us suddenly, and if by default something approaching a disaster comes on us, it will not come like a Pearl Harbor.   Indeed it might be better if that were the case, because a sudden disaster galvanizes people, raises the adrenalin, sharpens the intellect, energizes people to meet the crisis.

“The problems we face have resulted from the growth of the country, changes in science and engineering, the increasing complexity of society, the increasing complexity of the structure of business and industry, the enlargement of rights of individuals, changes in the relationships of people to government, and, underlying all this, the increasing litigiousness of our people.”

The Chief Justice observed that the high court has only “nibbled around the edges” of the dilemma for years and the problem has become so grave that something must be done.  (See:  “State of the Judiciary”, by Warren E. Burger, Metropolitan News, February 7, 1983).

Chief Justice Burger has gone beyond podium speeches to the American Bar on court reform and has written with vigor on court reform subjects in his opinions.   For example, the Chief Justice in his dissenting opinion in Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, referring to the majority holding in Coolidge v. New Hampshire (1971) 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 lashed out at the Exclusionary Rule as unworkable and irrational and suggested a constructive alternative to the rule.   In Bivens he concluded that “[R]easonable and effective substitutes [for the Exclusionary Rule] can be formulated ․”  (Id., 403 U.S. at p. 421, 91 S.Ct. at p. 2017).   As a solution to the problems caused by the Exclusionary Rule he recommended that in lieu of the Rule “[C]ongress ․ develop an administrative or quasi-judicial remedy against the government itself to afford compensation and restitution for persons whose Fourth Amendment rights have been violated ․”  (Id., at p. 422, 91 S.Ct. at p. 2017.)   He observed that “[I]ndeed there is nothing to prevent a State from enacting a comparable statutory scheme without waiting for Congress.”   (Id., at p. 424, 91 S.Ct. at p. 2018.)

Mr. B.E. Witkin, a nationally known legal scholar and lecturer whose contributions to California's jurisprudence are legendary, in an interview with “California Laywer” Editor Diana Diamond and Associate Editor Jonathan Maslow in the fall of 1982 suggested that our legal system is in jeopardy and outdated.   Mr. Witkin stated:

“I am not alone in saying that the legal system has been in jeopardy for 50 years.   The system has grown far too cumbersome, and the laws and procedures are far too complex.   The methods of getting justice are delayed too long.   The glut of criminal cases, which are tried interminably and in an exhibitionist manner, crowds out the litigation and handling of affairs of law-abiding citizens․

“What we need is a rational re-examination and overhauling of a system that has grown up without adequate continual appraisal․

“[W]here we fall down is in the operation of the courts.   When it takes four years to get to trial in a civil case, something is radically wrong.   When it takes two weeks to pick a jury in a prominent criminal case, somebody must be nuts.   And endless post-conviction review in criminal cases also seems very wrong.   No one who understands the system can say that it is operating in an efficient manner.

“We don't have a well-implemented system for making radical reform.   The American Bar Association, the American Judicature Society and a dozen other organizations have produced a staggering quantity of critical appraisals but most of the stuff lies on the shelf.”  (Emphasis added.)  (See:  B.E. Witkin:  “Our Legal System is in Jeopardy”, California Lawyer, published by the State Bar of California, September 1982).

In my view, in these time of unprecedented budgeting restraints and with California's system of justice plagued with unconscionable delay and excessive costs, it is absolutely essential that California's appellate justices assume a leadership role and speak out and beat the drums for court reform not only on every “soapbox” available but also follow the lead of Chief Justice Burger and speak out in their written opinions.   In California the need for appellate justices to speak out in their published opinions toward court reform in order to generate a dialogue directed at improving the administration of justice is clearly recognized by providing that one of the criteria for publication of appellate opinions is criticism of existing rules, with reasons for such criticism.  (Cal.Rules of Court, rule 976, mod. eff. January 1, 1983.) ²

Accordingly, in the spirit of constructive criticism and in order to generate debate toward meaningful reform in California's system of justice, the following comments and ideas are made with reasons in support thereof.

I

In the instant consolidated cases (Gonzalez, 2 Civ. No. 64422 and Arcia, 2 Civ. No. 64421), after a three judge panel of this court had unanimously denied the writs, following a petition to the State Supreme Court for a hearing by the defendants, the high court made the following order as to each defendant:

“Petition for hearing GRANTED.   The matter is transferred to this court and retransferred to the Court of Appeal, Second District, Division One, with directions to issue an alternative writ to be heard before that court when the proceeding is ordered on calendar.”

After the Court of Appeal has considered and denied a petition for a writ, it has become the regular practice of the State Supreme Court (as in the instant case), if it decides to grant the writ, to simply cut an order transferring the case to the Supreme Court and to make in the same order an immediate retransfer of the case to the division from whence the original denial issued with directions to issue an alternative writ, conduct a hearing and write the opinion.

Mr. B.E. Witkin, California's leading author and lecturer on this state's substantive and procedural law, in remarks at the California Judges Association Convention in 1980 speaking on the subject “Misconception:  that gimmicks will solve our appellate problems” referred to “the appellate musical chairs gimmick:  [as] a feat of judicial prestidigitation that makes part of the workload disappear because you don't see where it was.   The underlying notion is that you rid yourself of overload by transferring part of that load to another tribunal; ․”

Mr. Witkin pointed to an example of the “appellate musical chairs gimmick” as one “[w]hen our Supreme Court transfers a matter to itself and then retransfers that matter to a Court of Appeal for decision, it may be a good deal for the Supreme Court, but in no sense does it relieve the appellate system's overload․”

“Indeed, competent—that is to say, skeptical—observers, believe that in many instances these transfers of appellate jurisdiction result in doubling review;  for the intermediate appellate decision does not always satisfy a litigant accustomed to a decision from the highest court.”

Mr. Witkin opined that “the worst part of the notion is that it is true;  the transferring court does not get rid of some of its overload;  but the transferee court (or sucker if you prefer) sometimes gets an overload on an overload, and the judicial system gets nothing (or the business if you prefer).”  (See “Personal Viewpoint”, “Myths, Misconceptions, Mysteries of Appellate Review” by B.E. Witkin, Metropolitan News, October 8, 1980.)

With due respect, is it not the time for the State Supreme Court as an institution to consider abandoning this practice of retransferring matters to the Court of Appeal, as was done in the instant case?   The Court of Appeal is a constitutionally created independent intermediate court of review and, in my view, after it has seriously considered and denied a petition for a writ, it has performed and completed its function on the matter.   If the State Supreme Court decides that it should grant the petition should it not perform its function by retaining the case, conducting its own hearing and writing the opinion?

But if even greater significance is the obvious great disparity between the caseloads and disproportionate staff support (research attorneys and judicial secretaries) to assist in the production of written opinions between the judicial officers serving on the two levels of California's courts of review.   (See the “1982 Judicial Council Report” to the “Governor and the Legislature” (Part I) and the “Annual Report of the Administrative Office of the California Courts” (Part II), dated January 1, 1982, pp. 47 and 57.) ³

II

California's archaic, horse-and-buggy, system of appellate review is too slow and too costly.   It must be simplified and streamlined.   The usual remedy for meeting increased caseloads on a business-as-usual basis, is to merely pile on more and more justices and staff as was recently done by adding 18 new justices to the Court of Appeal statewide.   This approach is no cure at all for the grave illnesses afflicting the appellate process.   Unless there are major changes in the manner courts of appeal process their cases, the judiciary will be coming back to the well again and again for more justices and staff to handle the ever-increasing caseloads.

The “California Lawyer,” published by the State Bar of California, in its September 1981 issue (Vol. 1, No. 1) contains an article entitled “Chaos in the Criminal Courts”—“Bureaucracy reigns—while lawyers and judges refuse to make any changes” by Joseph McNamara.   The author pointed to “the gradual but relentless deterioration of our courts” and observed that “[E]ven those lawyers and judges who react angrily to criticism of the legal process concede that the court system is on the verge of chaos!   The courts have become incredibly slow, expensive and inefficient.”

Mr. McNamara likened the problems of the courts to those inherent and common to all large bureaucratic organizations:  Avoidance of accountability, self-deception, defensiveness and rationalization of poor judgment.   Relevant here is his observation that “[V]irtually every major legal change promulgated by appellate judges, the upper echelon legal bureaucrats, has resulted in more costs, more delays and more need for lawyers without any noticeable increase in public satisfaction with the courts.”

Mr. McNamara pointed out that “[C]learly, the legal bureaucracy suggests the same solutions for its self-caused problems as other bureaucracies do, asking, give us more resources, so we may serve you as you deserve.   But each new reform seems to leave the public worse off, while requiring still more lawyers and judges.”   He opined that Clausewitz noted that “War is too important to be left to generals.”   We might say the same of law—that it “is too important to be left to lawyers.”

The time is long overdue for bold and decisive action by the legal community to put its own house in order—to translate ideas and talk of reform into action and reality.   A complete overhaul of the criminal justice system should be the first order of business because of the great expenditure of judicial resources and waste of public funds processing frivolous (no merit) appeals.

Reform of the criminal justice system is also the key to the better processing of civil cases.   The great delay and tremendous waste of judicial time and resources in processing criminal cases at all levels robs civil litigants and their counsel of expeditious handling of their matters.   By reason of the priority given to criminal cases in the superior court in Los Angeles County, many civil litigants and their lawyers are faced with a mandatory dismissal of their suits under the five-year statute.   On the Court of Appeal level, civil case litigants and counsel have experienced the aggravation and frustration of carrying the burden of uncertainty from median time of 12 to 29 months, statewide, awaiting decision from the time of filing notice of appeal.   The median time in months from the filing of notice of appeal to the filing of an opinion in criminal cases in the quarter ending June 30, 1981 ranged from 10 to 24 months.  (See “1982 Judicial Council Report”, p. 62).

Chief Justice Burger, speaking before the ABA in February of this year, appealed for help on the need for court reform on the federal level and concluded his remarks with the following parody:

“Some years ago a German psychologist was engaged in exploring the comparative functioning of the minds of heman (sic ) beings and chimpanzees, the highest order of primates.   He placed a chimpanzee in a cage with a small stick.   Then he put some bananas, the favorite food of primates, outside the cage but beyond the reach of the chimpanzee.   The chimpanzee tried to reach for the fruit, but could not touch it.   He moaned and whimpered and complained—some might say as we judges complain about the litigious society and the overload of cases.   Some time passed.   Suddenly the chimpanzee seized the stick, reached out and pulled the bananas into the cage.   The chimpanzee had found a solution.

“Just as the chimpanzee could see the bananas, we can now see the problem.   What we need is to find the stick.”

Accordingly, serious consideration should be given by the state legislature, the Judicial Council, and the entire legal community to a “stick” in the form of the proposed California Re-Organized Appellate Review (ROAR) experimental project for processing criminal appeals.⁴

The seven key features of the ROAR experiment which entail major changes in the organization, structures and procedure on the Court of Appeal level, are as follows:

FIRST:  DIVIDE the Court of Appeal in each district procedurally into a “Criminal Appeals Branch” and a “Civil Appeals Branch.”  (In multiple division courts this could be accomplished without tearing up the present structure by merely designating specific divisions to handle only criminal or civil cases on an equitable basis with the divisions being rotated on an annual or bi-annual basis.)

This reform would extend the dual civil and criminal “tracks” presently used in the superior court through the intermediate appellate court level where the individual justices and panels presently handle both criminal and civil appeals.   In this manner the same advantages inuring to the trial courts by employing the dual criminal and civil “tracks” through the pleading and trial stage to judgment should also be realized by the Court of Appeal which translates into a savings in time, effort and money.

Such an organizational structure is not novel to appellate courts.   England has divided the court of appeal procedurally.   Professor Daniel J. Meador in “Criminal Appeals—English Practices and American Reform” said:  “The idea of distinctive, separate procedures tailored for the peculiarities of criminal appeals might be item number one for consideration on America's agenda.   This idea is at odds with procedural fashions of the last three or four decades.   During that time in the United States the trend has been toward uniformity in rules.   There is of course much to be said for that.   But in light of current problems in criminal appeals, the unique aspects of those cases, and the experience in the English court, the time has come to rethink the assumptions behind the uniformity idea.   The realities now point toward differentiated procedures in criminal appeals as a means of better serving the administration of justice.”

SECOND:  CREATE a centralized Administrative Staff in the “criminal Appeals Branch” to exercise affirmative case control.

Delay is built into the present system.   Most appellate courts take a passive role in monitoring criminal appeals.   No one is in charge of expediting the record on appeal (reporter's and clerk's transcripts and briefs).

Every defendant convicted of a criminal offense in California, indigent and nonindigent, is afforded costly reporter's and clerk's transcripts free of charge at public expense for purposes of appeal even though in many instances the full transcripts are not required for an appellate determination of the claimed grounds for reversal.

The purpose of the Centralized Administrative Staff is to cut down delay by expediting preparation of the record on appeal and to reduce the cost of the record by tailoring it to fit the case on a “no frills need-to-have” basis and reducing the procrastination factor, thereby eliminating unnecessary paperwork, time consumption and a waste of public funds.

In England the criminal appeal office is an integral part of the appellate mechanism or “perhaps the key—to the English Court of Appeals' ability to cope with its large criminal caseload.”

THIRD:  INSERT into the appellate process of criminal cases a procedure for “screening” out the great number of “frivolous” (no merit) appeals at an early stage.

Such screening procedures are employed in England and are not foreign to the United States.   Apparently 13 states and some federal courts engage in some form of screening of criminal appeals and the popularity of this procedure is spreading as caseloads mount.

California, which provides for an appeal as a matter “of right,” should insert a screening procedure in the appellate process.   Calling such a screening procedure “discretionary” or “conditional” is misleading.   As Professor Daniel J. Meador points out in “Criminal Appeals—English Practices and American Reform” functionally there is little difference between a “discretionary” or “conditional” appeal and one that is obligatory “of right.”

It is generally agreed in American jurisprudence that every convicted defendant should have an opportunity to have his conviction scrutinized for error or prejudicial irregularity by a tribunal other than the trial court where his guilt was adjudicated.   All that this really means is that every defendant should have at least one review as a matter of right.   The internal processes by which appellate tribunals in various states consider and dispose of those contentions vary.   In screening the appeals in one way or another, a review for error is in fact provided by an independent tribunal.   The convicted defendant who files a “frivolous” (no merit) appeal under the ROAR streamlined procedure will in fact and reality be afforded a “fast appeal” on a no frills, adequate (but abbreviated) record where heavy emphasis is placed on oral argument by trial counsel.

FOURTH:  REALLOCATE AND REORDER the functions and duties of those playing a role in the appellate process in order to make the procedure for “screening” out “frivolous” appeals work.

It is essential that trial counsel continue to represent the convicted defendants through the appellate process.   Unnecessary delay and a tremendous waste of public funds occurs by reason of duplication and overlapping of counsel effort.   For example, in California, generally when an indigent is charged with a felony, a new counsel is appointed by the court at public expense as his case moves through each of the three court levels of the system divided by political subdivisions:  Municipal Court (city level) where preliminary hearings are conducted;  Superior Court (county level) where the trial is conducted;  and the appellate court (state level).   As the case moves through each level, the newly appointed counsel must familiarize himself with the case while the preceding counsel was already possessed of this knowledge.   Why should indigent defendants be supplied with three different successive attorneys at public expense when non-indigent defendants who have to pay their own attorneys' fees, usually retain only one attorney to represent them through all levels of the criminal proceedings?

The tremendous waste of public funds by reason of duplication of counsel effort becomes apparent when one realizes that in California a vast majority of persons charged with criminal offenses in California are supplied free defense counsel at public expense.

In Los Angeles County alone the total cost to the taxpayers to supply public defenders and court-appointed attorneys to represent adults and juveniles charged with crimes in the Superior Court increased from $16,138,080 in fiscal year (FY) 1977–78 to $24,419,974 in FY 1982–83 (proposed budget).   The total expenditure of public funds for counsel to represent defendants charged with crimes in the Superior Court in Los Angeles County for the six years from FY 1977–78 through FY 1982–83 (proposed budget) is $118,365,419 for all appointed counsel.

Moreover, all defendants convicted of felonies in the superior court are afforded free clerks' and reporters' transcripts at public expense.   The costs to Los Angeles County taxpayers for these transcripts increased from $851,664 in FY 1977–78 to $1,541,416 in FY 1982–83 (proposed budget).   The total expenditure of public funds in Los Angeles County for these transcripts during the six-year period from FY 1977–78 through FY 1982–83 (proposed budget) is $7,129,391.

Thus, the total sum expended by Los Angeles County taxpayers for trial defense counsel in the superior court and for clerks' and reporters' transcripts during the six-year FY 1977–78 through FY 1982–83 (proposed budget) is $125,494,810.   (See Appendix A)

A rough statewide expenditure of public funds for trial defense counsel in the superior court and for clerks' and reporters' transcripts during the six-year period FY 1977–78 through FY 1982–83 can be extrapolated from the ratio of the population of Los Angeles County to the total state population.   Los Angeles County's population represents about one-third of the total state population.   Accordingly it is estimated that roughly $376,000,000 of public funds have been expended statewide for the purposes described during the six-year period mentioned above.

In addition, on the appellate level, the total cost to the taxpayers statewide to supply state public defenders and court-appointed counsel on appeal increased from $5,251,718 in FY 1977–78 to $10,756,134 in FY 1982–83 (proposed budget).   The total expenditure of public funds for counsel to represent defendants on appeal statewide during the six-year period, FY 1977–78 through FY 1982–83 (proposed budget), is $47,286,402.  (See Appendix B)

Thus, approximately $423,000,000 of public funds will have been expended statewide for trial and appellate counsel and clerks' and reporters' transcripts during the six-year period (FY 1977–78 through FY 1982–83 (proposed budget).

FIFTH :  The BASIC WORKING RECORD on appeal should consist of (1) the notice of appeal and (2) the original superior court file and exhibits as requested.

Under present procedures all convicted felons, indigent and nonindigent, are automatically supplied a free “record” on appeal at county taxpayers' expense.   The “record” on appeal includes a clerk's transcript (photocopies of the original superior court file) and a reporter's transcript of the proceedings.  (See Appendix A).

In view of the large percentage of “frivolous” (no merit) appeals filed by indigents convicted of felonies, a savings of public funds in the millions of dollars can be realized by merely transferring the uncopied original superior court file, rather than expensive copies, to the Court of Appeal for review and by ordering a reporter's transcript only of those portions of the trial court proceedings needed for purposes of addressing the issues raised on appeal.

Under the ROAR procedures, upon filing of the notice of appeal, the clerk of the trial court should immediately transmit the notice of appeal and the entire original superior court file to the appellate court.   This reform attacks the delay problem and saves public funds by eliminating the manhours expended by trial court clerks in compiling a complete record and by tailoring the record on appeal on a need-to-have basis as required.

SIXTH:  REDUCE the time period within which to file the notice of appeal to 10 days.

The notice of appeal should include in concise language the grounds for appeal and the legal authority supporting those grounds in a mini-brief format of a few lettersize pages.

These papers are to be prepared and filed by defense trial counsel who are familiar with all facets of the case.   This eliminates the filing of lengthy formal briefs and the functions served by briefs will be subsumed by an increased emphasis on oral arguments before the appellate tribunal by trial counsel.

SEVENTH:  EXPAND the types of opinions rendered by the reviewing court to three in number, namely (1) from the bench oral opinions, (2) per curiam (by the court) opinions, and (3) formal authored (full-blown) opinions.   During the ROAR experiment, as in the English system, heavy emphasis is placed on oral argument by trial counsel before the three-justice reviewing court.   FLEXIBILITY is supplied by an open exchange between the members of the reviewing court and trial counsel.   The SAFEGUARD is supplied in that the opinion of any one justice of the reviewing panel that the record should be augmented or that the matter should be continued for a short time for further briefing or argument shall be honored.

All appeals determined to be “frivolous” (unmeritorious) following oral argument will be disposed of orally from the bench by the presiding justice stating the reasons for the decisions.   This decision will be reduced to writing and filed with the record, thus satisfying the constitutional requirement for a written opinion (Cal. Const.;   Judicial Department;  art. 6, § 14).   It is estimated that in this manner between 70 percent to 80 percent of the criminal appeals will be “screened” out and disposed of within 60 days.   The SAFEGUARD afforded is that the unanimous vote of all three justices is required to dispose of an appeal by oral opinion rendered from the bench and all such dispositions are reviewable by the State Supreme Court.

All appeals determined to be meritorious following oral argument and which do not meet the criteria for publication in the official reports will be disposed of by way of short per curiam opinions which should be filed within 30 days after the matters are submitted for decision.   It is estimated that approximately 13 percent to 23 percent of the criminal appeals can be disposed of by short per curiam-type opinions.

All meritorious appeals which meet the criteria for publication will be formally authored and published (or partically published) in order to preserve a sound body of decisional law and must be filed within 45 days after the matters are submitted for decision.   Experience has shown that only about seven percent of criminal appeal opinions would be formally authored and published.

The tremendous savings in judicial time and resources and public funds is obvious by merely handling each appeal with the deference to which it is entitled—and no more, as described above.

Some of the pragmatic considerations justifying the organizational, structural and procedural changes recommended in the ROAR experiment are:  (1) the great interest in the administration of criminal justice by the public which wants criminal cases to be handled in a fair but more expeditious and economical manner;  (2) the expenditures of hard earned tax dollars for the large percentage of indigent defendants and for all the attorneys representing them (the people) since they (the people) are always a party to the criminal actions;  (3) the extremely high rate of “frivolous” (no merit) issues raised in criminal appeals;  (4) the interest in finality in criminal proceedings, the public's concern with deterrence of criminal activity and the defendant's concern over the lengthy uncertainty of time of final disposition;  (5) the issues typically raised in criminal appeals being less complicated than in civil appeals;  and (6) a single integrated system of criminal justice would be fostered while retaining the integrity of the appellate court as an independent institutional court of review.

The two main anticipated tangible benefits to the public which ROAR's structural and procedural reforms should reasonably be expected to produce is reducing the delay and cutting cost in processing criminal appeals.

With respect to reducing delay, although this delay is primarily caused by the sheer volume of frivolous appeals, it can also be attributed to the time expended (1) in preparing copious transcripts of the trial court proceedings by court reports, (2) in preparing lengthy briefs on appeal by counsel, and (3) in preparing “full-blown” written appellate decisions, meritorious and non-meritorious, published and non-published.

ROAR should realistically cut this time period to less than 60 days in 70 to 80 percent of the cases.   This is accomplished primarily by screening out “frivolous” (no merit) appeals early in the appellate process in the manner previously described.   The time spent in processing the balance of 20 to 30 percent of criminal appeals representing meritorious claims and appeals meeting the criteria for publication requiring full-blown opinions should be reduced to less than five months.   It should additionally have the domino effect of affording time for more expeditiously handling civil appeals.

With respect to cutting costs, implementation of ROAR statewide should result in a monetary savings in millions of dollars to the litigants and to California's taxpayers.   This savings could be accomplished by:  (1) tailoring the record on appeal (reporter's and clerk's transcripts) on a need-to-have basis in lieu of the present method of automatically preparing the full record as required under present rules;  (2) eliminating duplication of effort by appointed counsel;  (3) reducing the judicial manhours expended on “frivolous” (no merit) appeals;  and (4) forestalling the necessity of again expanding the size of the appellate court by adding more justices and staff to handle the increasing caseload under the present method of processing criminal appeals.

In addition to the substantial tangible benefits by way of cutting delay and costs in processing criminal appeals, as described above, of no little importance are some intangible benefits which should accrue from the ROAR procedures.   A sense of urgency should be instilled into the entire appellate process.   By reason of the reviewing court's direct contact with trial counsel through an increased emphasis on oral argument, “life” will be “breathed” into a “cold record” and the present tendency toward depersonalization and exalting “form” over “substance” should be reversed.   The “ivory tower” approach which is attributed to appellate courts will tend to be dispelled and the appellate court itself will be brought out of the shadows and made more visible to the public.⁵

Logic dictates that the effectiveness of the ROAR reforms should first be tested before implementation on a statewide basis since factors that affect the success of such drastic reforms are too varied to be accurately assessed in the abstract.   To give the experiment a fair chance to prove its worth, the entire integrated plan should be put into effect on a trial basis at the same time and preferably in one of California's multiple division appellate courts such as at Los Angeles or San Francisco.   In those districts there are sufficient court personnel to conduct the experiment with minimum disruption of present procedures.   The two systems running parallel at the same location offer a good comparison for purposes of evaluation.   No special funding should be necessary to conduct the experiment since the court personnel conducting the experiment would be merely shifted from performing their responsibilities under the present system to function under the ROAR procedures.

If as Coke said, “Reason is the life of the law,” such a test should not run afoul of constitutional due process or equal protection requirements.   In fact, a strong argument can be made that due process is being seriously threatened or denied to California citizens by delay under our present antiquated and cumbersome procedures.   As for the equal protection clause, certainly applying the strict test involving fundamental rights the desirable objectives which may be anticipated from the experiment constitute a compelling state interest and the distinctions drawn are reasonable, rational and necessary to further that purpose.

If the ROAR experiment should prove to be a cost efficient method of processing criminal appeals state legislators and county supervisors should be vitally interested in these times of budgeting restraints.

The bench and bar should also be vitally interested in the ROAR experiment if it proves to substantially cut delay in processing criminal appeals.   Those attorneys who practice law primarily in the civil field will have their cases decided more promptly on appeal since substantial Court of Appeal resources will be released to handle their cases.

IN SUM, the antiquated procedures for processing California's criminal appeals are simply too slow and too costly.   While periodic augmentation of the Court of Appeal with additional justices and staff may temporarily help reduce the delay problem, it does not supply a remedy for solving the root causes of that problem.   Moreover, such augmentations have the adverse effect of driving up, rather than reducing, cost factors.

The following inscription is engraved on the Memorial Gate at the University of Pennsylvania—“INVENIEMUS FIAM AUT FACIEMUS:  WE SHALL FIND A WAY OR WE SHALL MAKE ONE.”

ROAR presents a comprehensive rational and realistic plan of the scope and scale needed for processing criminal appeals in a more efficient, more economical (faster and cheaper) and more responsive to the desires of the people without sacrificing any of our traditional or constitutional concepts of basic justice.   Absent any better proposal appearing on the horizon to realistically address the unacceptable delay and exorbitant cost problems, the ROAR project should be taken off the shelf where it has been languishing for five years and given a chance to work, especially in these days of tight budgetary restraints.

It is estimated that if the ROAR procedures hereinbefore described are implemented statewide 1) that delay in processing criminal appeals will be dramatically slashed by a minimum average of 50 percent thereby affording more expeditious processing of civil appeals and 2) the waste of public funds, directly and indirectly, will be drastically cut in a sum exceeding $100,000,000 during the balance of this decade.

By reason of the foregoing, assuming that the purpose of criminal appeals process is not to afford full employment for lawyers by appointing three consecutive counsel to represent indigent defendants charged and convicted of committing felonies;  and setting aside the personal desires of individuals and special interest groups involved in that process, IN THE PUBLIC INTEREST, the Governor, the State Legislature, the Judicial Council, county supervisors, and the entire bench and bar are urged to seriously consider working together to implement the Re-Organized Appellate Review (ROAR) experimental project.

As Mr. Witkin so accurately observed:  “We don't have a well-implemented system for making radical reform.”   The question is—who will take the initiative and break the mold of time-consuming and wasteful criminal procedural habits and assume the leadership role in bringing about a major overhaul of California's criminal appeals process in order to render it more expeditious and economical? ⁶

I respectfully dissent.

The majority declares that these cases must be decided according to federal law.   It asserts, ante, at page 701, that “The California cases of People v. Bower (1979) 24 Cal.3d 638 [156 Cal.Rptr. 856, 597 P.2d 115] and In re Tony C., (1978) 21 Cal.3d 888 [148 Cal.Rptr. 366, 582 P.2d 957], have been rendered inapplicable for resolution of the detention issue by reason of the passage of Proposition 8 in June 1982 and the fact that the 1979 Bower and the 1978 In re Tony C. opinions did not consider the United States Supreme Court's 1980 Mendenhall decision.”   The issue as to whether Mr. Gonzalez and Mr. Arcia, or either of them, was “detained” or “seized” is not now and never has been an issue to be decided on independent state grounds.   Both People v. Bower (1979) 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115 and In re Tony C. (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957 were decided on federal constitutional grounds.¹

As Justice Thompson announced, speaking for this court in Civil Service Commission v. Superior Court (1976) 63 Cal.App.3d 627, 631, 133 Cal.Rptr. 825 (Lillie, Acting P.J., concurring;  Hanson, J., concurring and dissenting), “Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937] dictates unequivocally that we follow the rule enunciated by the high court.   There is no exception in Auto Equity Sales for Supreme Court cases of ancient vintage.   If [an early Supreme Court case] does not comport with the standards of review required by [a later Supreme Court case], where the party seeking judicial review is indigent, that proposition is not ours to announce.”   For identical reasons, if the holdings in Bower and Tony C. do not comport with the standards for interpretation of the initial seizure question in light of federal Supreme Court opinions, that proposition is not ours to announce.   As Bower and Tony C. constitute interpretations by our Supreme Court of the federal Constitution and as those decisions have not been overruled or disapproved by the United States Supreme Court, it is incumbent upon us to follow those interpretations.   “Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction.   It is not their function to attempt to overrule decisions of a higher court.  [Citations.]”  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

Even though the majority purports to decide these cases on the basis of federal law, it declares, ante, at page 708 of its opinion that its conclusion that Gonzalez and Arcia were not illegally detained would be the same even if it had decided the issue under People v. Bower, supra, 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115, and In re Tony C., supra, 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957.   Therefore, the majority's reliance on United States v. Mendenhall (1980) 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 is even more unjustified.

In my view the merits of these cases compel the conclusion that petitioners were unlawfully detained.  (People v. Bower, supra, 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115;  In re Tony C., supra, 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957.)   The majority, ante, at page 701, states, “The language in the United States Supreme Court case of United States v. Mendenhall (1980) 446 U.S. 544 [100 S.Ct. 1870, 64 L.Ed.2d 497] pertaining to the ‘detention’ issue is dispositive of the defendant Gonzalez's claim that he was improperly detained.”   On page 702 of its opinion, ante, the majority quotes with emphasis the following statement from United States v. Mendenhall, supra, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, “We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.”   (Footnote omitted.)   It should be noted that only two justices in Mendenhall signed the portion of the majority opinion that dealt with the detention issue.   Four justices (White, Brennan, Marshall, and Stevens) concluded that Ms. Mendenhall had been “seized,” and the three remaining justices (Powell, Blackmun, and Chief Justice Burger) concluded that the “seizure” question need not be reached.   Thus, the majority herein is relying on the view of only two justices of the United States Supreme Court to hold that cases decided by the California Supreme Court “have been rendered inapplicable”.  (Majority opn., ante, at p. 701.)   The justices who concurred in the judgment but not in that part of the opinion relied upon by the majority herein held that the federal agents had a reasonable suspicion that Ms. Mendenhall was engaging in criminal activity and thus had the right to stop her.  (United States v. Mendenhall, supra, 446 U.S. 544, 560, 100 S.Ct. 1870, 1880, 64 L.Ed.2d 497.)   That such reasonable suspicion is entirely lacking in the cases at bench will be demonstrated post.

Any doubts concerning what constitutes a detention as determined by our Supreme Court's interpretation of federal law were removed by the decision in People v. Bower, supra, 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115.   “Courts have broadly defined the term detention.   The United States Supreme Court has held that ‘whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person’ within the meaning of the Fourth Amendment.  [Citation.]  ․ Most recently, this court added a separate, new test.   A detention also occurs whenever an officer accosts an individual on suspicion that the person ‘may be personally involved in some criminal activity․’  [Citation.]”  (Id., at p. 643, 156 Cal.Rptr. 856, 597 P.2d 115.) ²

It is obvious that when Officer Celmer accosted Mr. Gonzalez, he was acting on the suspicion that Mr. Gonzalez might be personally involved in some criminal activity.   When asked at the suppression hearing why he had accosted Mr. Gonzalez, the arresting officer stated, “Well, I have made—I been working narcotics for a long time, especially at the airport.   I have conducted numerous investigations at the airport, especially incoming passengers from Miami, which is a known source city for various narcotics, cocaine, marijuana.   I have made numerous arrests on incoming passengers from that particular area in possession of dangerous drugs.   Mr. Gonzalez displayed certain characteristics to me that I observed in the past of persons I arrested for possession of narcotics, and that is why I approached him.”   When asked what characteristics he referred to, Officer Celmer stated, “He appeared nervous to me.   He was carrying very little luggage.   As a matter of fact, he had no luggage at all.   He had just traveled 3,000 miles.   It appeared that he was boarding or going to board a big tram to one of the local hotels.   He had no luggage.  [¶] Arcia had no luggage.   Neither did Mr. Mena have any luggage that I could recall.   It appears that they were going to a hotel, for how long, for the duration of their stay in Los Angeles, I had no idea.  [¶]  There appeared that there was no luggage they were carrying.   I thought it was unusual.   Plus the fact they appeared nervous.   So that is why I approached them.”

Because of this testimony, I conclude that under the Bower definition Officer Celmer detained Mr. Gonzalez.  “A detention also occurs whenever an officer accosts an individual on suspicion that the person ‘may be personally involved in some criminal activity․’  (In re Tony C. (1978) 21 Cal.3d 888, 895 [148 Cal.Rptr. 366, 582 P.2d 957].)”  (People v. Bower, supra, 24 Cal.3d 638, 643, 156 Cal.Rptr. 856, 597 P.2d 115.)   It is evident that the officer had no probable cause to believe, or reasonable basis to suspect, that Mr. Gonzalez was personally involved in criminal activity.   The prosecution doesn't seriously contend otherwise.

The majority takes semantical exception to my use of the verb “accost.”   I employ “accost” because that word was used by the United States Supreme Court in Terry v. Ohio (1968) 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889, and by the California Supreme Court in People v. Bower, supra, 24 Cal.3d 638, 643, 156 Cal.Rptr. 856, 597 P.2d 115, to define a “seizure” and a “detention.”   That the word is appropriately used by those courts and by this writer is manifest from the following reference:  “1:  to approach and speak to :  speak to without having first been spoken to 2:  to confront, usu. in a somewhat challenging or defensive way 3:  to address abruptly (as in a chance meeting) and usu. with a certain degree of impetuosity or boldness 4:  to solicit (as a man) for sexual immorality.”  (Webster's Third New Internat. Dict. (1976) p. 12.)

In a case where the facts are remarkably similar to those at bench, the United States Supreme Court held that a law enforcement officer could not, as a matter of law, have reasonably suspected the subject therein of criminal activity on the basis of certain observations.   The court outlined these observations as follows:  “(1) the petitioner had arrived from Fort Lauderdale, which the agent testified is a principal place of origin of cocaine sold elsewhere in the country, (2) the petitioner arrived in the early morning, when law enforcement activity is diminished, (3) he and his companion appeared to the agent to be trying to conceal the fact that they were traveling together, and (4) they apparently had no luggage other than their shoulder bags.”  (Reid v. Georgia (1980) 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890.)   The court held, eight justices concurring, that the facts relied upon by the officer provided no basis for a seizure (detention).  (Ibid.)  By a parity of reasoning, there was no basis in the case at bench to justify a detention of Mr. Gonzalez.

The majority seeks to dispose of Reid in the same manner as it dispenses with In re Tony C. and Bower.   It states that the opinion of four justices of a nine-justice court renders the eight-justice decision of that court in Reid “inapplicable”!  (Majority opn., ante, at p. 705.)

Since there was no basis to detain Mr. Gonzalez, a fortiori, there was no basis to detain Mr. Arcia.   There can be no question that Mr. Arcia was detained as the trial court found.   It is axiomatic that unless the detention was legal, the arrest without a warrant cannot be justified based on information obtained as the fruit of the illegal detention.  (See People v. Maxwell (1978) 78 Cal.App.3d 124, 131, 144 Cal.Rptr. 95.)   When asked by the deputy district attorney why Mr. Arcia was arrested (detained), Officer Celmer replied, “Well, they were with Mr. Gonzalez at the time.   I was still conducting an investigation.   I had just found narcotics on Mr. Gonzalez.   In my mind Mr. Arcia was still the individual that was described to me by McGavock.   I felt that he may be possibly in possession of narcotics and this is why I told him [the other officer] to place him under arrest.”   Officer Marcello, a federal narcotics officer working with Officer Celmer, made the initial approach to Mr. Arcia.   Marcello testified that he did so because he thought Arcia might be the person referred to by the Florida policeman who had called Celmer.   Marcello, when asked if he noticed anything unusual about Arcia, replied, “He was looking around, and he was somewhat observing, observing other people around him.”   Although Officer Marcello testified that he intended after talking to Mr. Arcia to detain him on the grounds that he was an alien who couldn't identify himself, he did not do so.   In fact, Marcello arrested Arcia on behalf of Officer Celmer at Officer Celmer's direction for the reason that Celmer stated, namely, because he, Arcia, was “with Mr. Gonzalez.”   A better example of establishing “guilt by association” could not be posited.

I would issue a peremptory writ in each case.

I also dissent from the decision to publish because of the inclusion of the concurring opinion.   The concurring opinion in my judgment is not germane to the case at bench and should not be placed in the official reports.   This court should not be used by an individual justice as a forum to present his or her personal philosophy to a captive audience.   Further, I do not believe that it is appropriate to invade the public purse to advocate a position that has strong political overtones.   The goals of the “Citizens for Law Enforcement Needs” which are advocated by Justice Hanson may be laudatory indeed, but as the organization is private and was formed to foster a privately supported objective, the taxpayers of this state should not be taken advantage of by being required to finance the publication of that point of view.

FOOTNOTES

1.   Proposition 8 adds to article I of the State Constitution section 28, subdivision (d), which provides:“Section 28(d) Right to Truth in Evidence.   Except as provided by statute hereafter enacted by two-thirds vote of the membership in each house of the Legislature, RELEVANT EVIDENCE SHALL NOT BE EXCLUDED IN ANY CRIMINAL PROCEEDING, INCLUDING PRETRIAL AND POST CONVICTION MOTIONS AND HEARINGS, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”  (Emphasis added.)

2.   The Mendenhall case involved a defendant who arrived at the Detroit Metropolitan Airport on a flight from Los Angeles who was initially approached and questioned by two Drug Enforcement Administration (DEA) agents.   Defendant Mendenhall was subsequently arrested for possessing heroin.   The district court had denied the defense motion to suppress, concluding (a) that the DEA agents' conduct in initially approaching the defendant and asking to see her ticket and identification was a permissible investigative stop, based on facts justifying a suspicion of criminal activity, and (b) that the defendant had accompanied the agents to the DEA office voluntarily and voluntarily consented to a body search in the DEA office.   Defendant Mendenhall's subsequent conviction after a trial was reversed by the Court of Appeals which found that the defendant had not validly consented to the search.The United States Supreme Court in Mendenhall reversed the judgment of the Court of Appeals and concluded that the District Court's determination that defendant Mendenhall consented to the search of her person “freely and voluntarily” was sustained by the evidence.

3.   The court further observed:  “The distinction between an intrusion amounting to a ‘seizure’ of the person and an encounter that intrudes upon no constitutionally protected interest is illustrated by the facts of Terry v. Ohio, which the Court recounted as follows:  ‘Officer McFadden approached the three men, identified himself as a police officer and asked for their names․  When the men “mumbled something” in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing.’  id., at 6–7 [88 S.Ct., at 1872].   Obviously the officer ‘seized’ Terry and subjected him to a ‘search’ when he took hold of him, spun him around, and patted down the outer surfaces of his clothing, id., at 19 [88 S.Ct., at 1879].   What was not determined in that case, however, was that a seizure had taken place before the officer physically restrained Terry for purposes of searching his person for weapons.   The Court ‘assume[d] that up to that point no intrusion upon constitutionally protected rights had occurred.’   id., at 19, n. 16 [88 S.Ct., at p. 1879, n. 16].   The Court's assumption appears entirely correct in view of the fact, noted in the concurring opinion of MR. JUSTICE WHITE, that ‘[t]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets,’ id., at 34 [88 S.Ct., at 1886].   Police officers enjoy ‘the liberty (again, possessed by every citizen) to address questions to other persons,’ id., at 31, 32–33 [88 S.Ct., at 1885–1886] (Harlan, J., concurring), although ‘ordinarily the person addressed has an equal right to ignore his interrogators and walk away.’  Ibid.  [¶] Similarly, the Court in Sibron v. New York, 392 U.S. 40 [88 S.Ct. 1889, 20 L.Ed.2d 917], a case decided the same day as Terry v. Ohio, indicated that not every encounter between a police officer and a citizen is an intrusion requiring an objective justification.   In that case, a police officer, before conducting what was later found to have been an unlawful search, approached Sibron in a restaurant and told him to come outside, which Sibron did.   The Court had no occasion to decide whether there was a ‘seizure’ of Sibron inside the restaurant antecedent to the seizure that accompanied the search.   The record was ‘barren of any indication whether Sibron accompanied [the officer] outside in submission to show of force or authority which left him no choice, or whether he went voluntarily in a spirit of apparent cooperation with the officer's investigation.’  392 U.S., at 63 [88 S.Ct., at 1903] (emphasis added).   Plainly, in the latter event, there was no seizure until the police officer in some way demonstrably curtailed Sibron's liberty.  [¶] We adhere to the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.   Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards.   The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’  United States v. Martinez-Fuerte, 428 U.S. 543, 554 [96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116].   As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.  [¶] Moreover, characterizing every street encounter between a citizen and the police as a ‘seizure,’ while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices.   The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws.  ‘Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved.   In short, the security of all would be diminished.  Haynes v. Washington, 373 U.S. 503, 515 [83 S.Ct. 1336, 1344, 10 L.Ed.2d 513].’  Schneckloth v. Bustamonte, 412 U.S. [218], at 225 [93 S.Ct. 2041 at 2046, 36 L.Ed.2d 854].”  (446 U.S. at p. 552, 100 S.Ct. at p. 1876.)

4.   The Beale case involved an initial contact by a police officer with defendant Beale and a male companion at an airport in Fort Lauderdale, Florida, which culminated in Beale's apprehension and conviction of possession with intent to distribute and conspiracy to possess with intent to distribute cocaine (in violation of 21 U.S.C., § 841(a)(1), 846) in San Diego.   The issues presented were the constitutional propriety of police encounters with defendant Beale in the Fort Lauderdale Airport, the use of a trained canine “Nick” to sniff Beale's luggage in the baggage room in Fort Lauderdale, and his ultimate arrest and the search of baggage in San Diego.The three-member panel of the Beale court vacated the defendant's conviction on the ground that “the use of a canine's keen sense of smell to detect the presence of contraband in personal luggage is a Fourth Amendment intrusion, albiet a limited one that may be conducted without a warrant and which may be based on an officer's “founded” or “articulable” suspicion rather than “probable cause.”   The case was remanded to the District Court for a factual or legal determination with regard to the Fort Lauderdale quantum of suspicion.

5.   In Reid cocaine was found in a bag the defendant had abandoned at the Atlanta Airport when he started to run away, after a federal narcotics agent asked him for identification and after he had consented to a search of his person and shoulder bag.   The Georgia trial court granted the defendant's motion to suppress.   The Georgia Court of Appeals reversed, holding that the stop of the defendant was permissible since he appeared to the agent to fit the so-called “drug courier profile.”The United States Supreme Court in granting certiorari in a short per curiam-type opinion in Reid, held that, as a matter of law, the narcotics agent could not have reasonably suspected the defendant of criminal activity on the basis of the observed circumstances to justify a “seizure” and therefore the appellate court's judgment could not be sustained.   Mr. Justice Rehnquist dissented for the reasons stated by Mr. Justice Stewart in Mendenhall concluding that the police conduct involved did not implicate the Fourteenth or Fourth Amendment rights of the petitioners in that “[a] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”  (Mendenhall, id., 446 U.S., at p. 554, 100 S.Ct., at p. 1877.)Mr. Justice Powell in his concurring opinion in Reid joined by the Chief Justice and Mr. Justice Blackmun pointed out that in their concurring opinion in Mendenhall they did not consider the seizure issue because it had not been raised in the courts below.   He also stated that in any event by not reaching that issue in Mendenhall, “did not necessarily indicate disagreement with the views of Mr. Justice Stewart and Mr. Justice Rehnquist.”  (Id., at p. 560 fn. 1, 100 S.Ct., at p. 1880, fn. 1.)   Mr. Justice Powell concluded by stating:  “The state courts, which decided this case before our decision in Mendenhall, did not consider whether the petitioner had been seized.   Rather, those courts apparently assumed that the stop for routine identification questioning constituted a seizure, and addressed only the question whether the agent's actions were justified by articulable and reasonable grounds of suspicion.   Because we similarly do not consider the initial seizure question in our decision today, that issue remains open for consideration by the state courts in light of the opinions in Mendenhall.”  (Italics added.)  (Id., at p. 443, 100 S.Ct., at p. 2755.)

6.   The dissent quotes People v. Bower, supra, 24 Cal.3d at p. 643, 156 Cal.Rptr. 856, 597 P.2d 115 as follows:  “A detention also occurs whenever an officer accosts an individual on suspicion that the person ‘may be personally involved in some criminal activity ․’ ”  The use of the word “accost implies that the encounter was initiated in a challenging or aggressive way.”  (Webster's New Collegiate Dictionary (1980).The record reflects that Detective Celmer was asked by the prosecution attorney not why he “accosted” defendant Gonzalez but “what was your reason to walk over to Mr. Gonzalez, the defendant?”   Detective Celmer's initial response was “I wanted to talk to Mr. Gonzalez and find out who he was and where he was going, why he was in Los Angeles.”

7.   Reasonable minds may differ on construction of constitutional, statutory, case law and application of factual situations thereto.   However, suffice to say that it is noted that the dissenting opinion ignores that police officers enjoy the liberty (possessed by every citizen) to address questions to persons (see fn. 3, supra );  the recent case of United States of America v. Beale (9th Cir.1982) 674 F.2d 1327, discussed in the majority opinion which cites the Mendenhall case;  and the Jones, Denman and In re Danney E. cases of this Second Appellate District construing Bower and In re Tony C., hereinbefore cited in this majority opinion.

1.   “Reform” means:  “to amend or improve by change of form or removal of faults or abuses;  to put or change into an improved form or condition;—introducing a better method or course of action;  to become changed for the better.”  (Webster's Seventh New Collegiate Dictionary (1965).)

2.   One of the functions of the preparation of a formal written opinion is to provide “[C]ommunication with people generally, since the appellate opinion is almost the sole means of such communication by appellate justices.”  (See B.E. Witkin, “Manual on Appellate Court Opinions,” (1977) § 38, p. 64.)

3.   The “overload on an overload” imposed on the Court of Appeal referred to by Mr. Witkin is more acutely felt by those Court of Appeal justices who have only one research attorney.   For example, in the Second Appellate District there is a disproportionate allocation of personal staff support in that while all of the appeals and writs are equally divided between all 26 justices only 10 of those justices have been authorized two research attorneys, the other 16 justices in the Second District are only authorized one research attorney on his or her personal staff.

4.   The ROAR proposal resulted from a study made by the “Task Force on the Appellate Process” at the “Fourth California Conference on the Judiciary” sponsored by “Citizens for Law Enforcement Needs” (October 13–14, 1977).   The proposal was unanimously approved by the Conference in plenary session.   The conference coordinator was Doris Dolan Hillings, Founder-Chairman Emeritus.*   The conference chairman was Presiding Justice Robert K. Puglia, Third Appellate District, Sacramento.**   The Task Force, which was chaired by this writer, was comprised of over 50 leading jurists (trial and appellate), lawyers, law enforcement officers, criminal law specialists and members of the general public.   They met in workshop session to focus on organizational, structural or procedural reforms that could render the processing of criminal appeals more expeditious, economical and responsive to the people without (1) diminishing the quality of review or (2) diluting the constitutional rights of persons convicted to felony offenses while (3) preserving a sound body of decisional law.The Task Force took a detailed in-depth look at the component parts that make up the anatomy of the criminal appeals process.   As a result of this in-depth study and analysis, the Task Force came up with a streamlined, no-nonsense approach to appellate review of criminal cases with flexibility and built-in safeguards which would make the system more expeditious, more economical and more responsive to the needs of California's citizens without sacrificing any of the traditional concepts of basic justice.* CLEN's major efforts as stated by Doris Dolan Hillings are:  “The major CLEN efforts are directed at educating the public on our judicial system and recommending judicial reform.   This is accomplished through the annual sponsorship of Conferences on the Judiciary.   CLEN was the first citizens' group in the nation to hold such a conference, beginning in 1972.   This effort was a direct result of the urgings of both the President of the United States and the Chief Justice of the United States for citizens to hold such statewide conferences.  [¶] Specialists from the criminal justice system, with particular expertise in Task Force subject matters, meet with citizen delegates drawn from the legal profession, business, industry, education, civic and service clubs and the general public to propose changes in the judicial process.   Reports of each Conference are distributed statewide and nationally to stimulate discussions and generate constructive reform.  [¶] Because it holds great hope for reducing the delay in processing criminal appeals and the burgeoning cost to the taxpayer, this report by the Task Force on the Appellate Process has been designated for special release.   We fervently hope that all members of the criminal justice system, the legislators and all citizens will give serious attention to the recommendations of the delegates.”** “Presiding Justice Puglia, the conference chairman, stated in the forward of the full report:  ‘The 1977 Conference on the Judiciary constitutes the most recent milepost in CLEN's continuing effort to stimulate needed reforms in the criminal justice system.   Notwithstanding the impressive accomplishments of preceding conferences, the delegates were acutely aware that conditions in the criminal justice system are approaching a state of crisis.   A sense of urgency pervaded the proceedings.  [¶] Among the problems addressed by the conference was the need to rationalize the appellate process.   The congestion in our intermediate appellate courts is symptomatic of a malaise that infects the entire system.   Caseloads, both civil and criminal, continue to expand, as it were, by geometrical progression, threatening further to protract the disposition of appeals.   With the shorter prison terms mandated by the new determinate sentencing law, some prisoners may even complete their terms before their appeals are decided, further exacerbating the crisis of public confidence in the system.   More expeditious ways must therefore be found to resolve litigation at the appellate level if the structure is not to collapse under the weight of relentlessly increasing demands.’ ”

5.   Presently Court of Appeal justices spend all but about two days a month working privately in their chambers pouring through briefs and records and writing opinions or conferring on the matters before them.   Only about two days a month of their time is spent in open court session hearing oral arguments.

6.   With due respect, the dissenting opinion's dissent “from the decision to publish because of the inclusion of [this] concurring opinion” is as wrong as the dissent to the majority opinion.  (See footnote 7, majority opinion).The inclusion of a concurring opinion is not a legally cognizable criteria for determining publication of a majority opinion which clearly meets the criteria for publication.Moreover, to dissent to publication because of the perceived lack of “germaneness” or disagreement with the “content” of a separate concurring [or dissenting] opinion, in my view, demonstrates a highly cavalier attitude toward the “independence” of the judiciary and the First Amendment rights of a judicial public servant in the performance of his or her duty as he or she sees it.Furthermore, “germaneness”, like beauty, is in the eyes of the beholder.   Clearly, in my judgment, the exigencies of the totality-of-the-circumstances causing unacceptable delay and unnecessary costs in California's present method of processing criminal appeals renders the ROAR proposal, or some other reasonable substitute designed to cut delay and costs, as “most germane.”In addition, there hardly can be “political overtones” in proposing long-overdue procedural reforms designed to cut delay and costs in processing criminal cases on review which would benefit all the people of California (litigants, lawyers, victims, and the taxpayers who pay all the bills for the criminal justice system) regardless of party affiliations, race, creed or color.Finally, the dissenting opinion complains that the “Citizens for Law Enforcement Needs” is an organization that “foster[s] a privately supported objective” and “the taxpayers of this state should not be taken advantage of by being required to finance the publication of that point of view.”The ROAR experimental proposal resulted from a study made by the “Task Force on the Appellate Process” at the “Fourth California Conference on the Judiciary” sponsored by “Citizens for Law Enforcement Needs.”   Such conferences were conducted at the urgings of the President of the United States and the Chief Justice of the United States Supreme Court.  (See footnote 4, supra.)As noted, the Task Force which formulated the ROAR experimental proposal was comprised of over 50 leading jurists (trial and appellate), lawyers, law enforcement officers, criminal law specialists and members of the general public following a detailed in-depth look at the component parts that make up the anatomy of the criminal appeals process.   The proposal was unanimously approved by the conference in plenary session.  (See footnote 4, supra.)The “Fourth California Conference on the Judiciary” was financially aided through a federal grant from the Office of Criminal Justice Planning under the Omnibus Crime Control Act of 1968, as amended, and by the Governor's Crime Resistance Task Force, a project of the Office of Criminal Justice Planning, State of California.While the latter offices disclaims responsibility for any opinions or conclusions resulting from such conferences, it should be noted that tax dollars aided in the formulation of the court reform proposals emanating from the conference and should not be wasted by gathering dust on the shelf.   Not only is it the duty of every public servant, including those in the third branch, to speak out and work for the efficient and economical handling of the Peoples' governmental departments and agencies but it is completely proper to speak out on reform of the criminal justice system in written opinions.  (See Chief Justice Burger's opinion in Bivens v. Six Unknown Fed. Narcotics Agents, supra, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619).Any tax dollars expended in publication of this concurring opinion would be the best bargain California taxpayers ever had if it results in a public debate or action by the legal community which culminates in major procedural reforms in California's criminal justice process that could save California taxpayers over $100,000,000 during the balance of this decade and help balance the state budget.On court reform generally, it matters not the “philosophical” bent from whence ideas for court reform springs.   Nor is it important who gets credit for or no credit for advancing such ideas.   What does matter and what is important is that in the public interest the criminal justice process must be streamlined to provide for the prompt delivery of justice at the lowest possible cost.Is is my firm personal and official “philosophical” belief that the “keel” of California's criminal justice system is still sound.   However, the procedures presently employed in processing court appeals are too slow and costly due to the barnacles and encrustations clinging to the “hull” due to the passage of time and inattention.   Clearly, the legal community should perform its own maintenance before aroused and concerned citizens are forced to take things in their hands and, figuratively speaking, “keel haul” the system as they did in Proposition 8 through the initiative process but this time in order to scrape the cumbersome delay and excessive cost-causing “barnacles” off the “hull”.C1-3APPENDIX A C1-3June 17, 1982 L1-2Honorable L. Thaxton HansonL1-2Justice of the Court of AppealL1-23580 Wilshire BoulevardL1-2Los Angeles, California 90010 Dear Justice Hanson: C1-3CRIMINAL DEFENSE AND TRANSCRIPT COSTSC1-31977-78 THROUGH 1982-83 (PROPOSED) L1-3  The following information is provided in response to your request of May 7, 1982 that we update information previously sent to you on the costs of Superior Court Public Defenders, court-appointed attorneys, and transcripts. L1-31. Costs for Public Defender in Superior CourtL1-3   - Defense of Adults Defense of   Fiscal Year Superior Court  Juveniles   -- -      1977-78  $ 7,560,709$2,687,822     1978-79    7,161,371 2,431,802     1979-80    8,621,103 3,413,559     1980-81    9,337,574 3,328,744     1981-82   11,137,319 3,969,151     1982-83 (Prop.)   11,739,386 4,165,588 L1-32. Costs for Court-Appointed Attorneys in Superior CourtL1-3   - Defense of Adults Defense of   Fiscal Year Superior Court Juveniles   -- -      1977-78  $ 3,575,332$2,314,217 *     1978-79    3,376,473 2,524,148 *     1979-80    4,177,760 2,406,272     1980-81    5,143,293 2,221,276     1981-82    6,400,000 ** 2,157,520 **     1982-83 (Prop.)    6,400,000 2,115,000 FN* Includes representation of juveniles in dependency hearings.FN** Estimated actual expenditures based on 6 months experience.L1-33. Costs for Preparation of Superior Court Transcripts on Appeals Cases:L1-3   -       Clerks' Reporters'   Fiscal Year   Transcripts *Transcripts **   -   --      1977-78     $481,090  $370,574     1978-79      507,169   509,540     1979-80      560,254   542,854     1980-81      623,286   583,097     1981-82      640,111   770,000     1982-83 (Prop.)      712,616   828,800 L1-3I hope this information will be useful to you. Please let me know if I may beof further assistance. L2-3   Very truly yours, L2-3   HARRY L. HUFFORDL2-3   Chief Administrative Officer HLH:RBDJC:fb7/hFN* Costs may not be precisely comparable with information provided previously but based on best available data.FN** Includes transcripts prepared for appeals only; does not include transcripts during trial of Superior Court cases (e.g. daily transcripts) which may subsequently have been appealed. Daily transcripts will cost $1 million in 1982-83.C1-7APPENDIX B     TO:L2-4Justice L. Thaxton Hanson    FROM:L2-4Judicial Council    DATE:L2-4September 17, 1982    SUBJECT:L2-4Appointed Counsel/Criminal AppealsL2-4-  BudgetC3-4Expended RequestL2   77/78L3   78/79L4   79/80L5   80/81L6   81/82 82/83L2   -L3   -L4   -L5  -L6   - -L1-2Courts of Appeal  1st Dist.$310,207$198,845$269,137$408,845$ 785,871$ 534,240  2nd Dist.S10516,715483,049586,579714,820811,558S11 1,044,874  3rd Dist.141,168115,267107,658119,922211,692   314,216  4th Dist.219,333144,576225,545295,052380,118   418,557  5th Dist.124,040119,916120,564200,496247,494   336,417Unallotted   140,000 S13Total, Courts  of Appeal$1,311,463$1,061,653S11 $1,309,483$1,739,135$2,436,783$2,788,324 Supreme Court$9,200$13,440$12,352$3,000$193,695  $290,810 L1-2Total, JudicialExpenditure/Budget$1,320,663$1,075,093$1,321,835$1,742,135$2,630,428$3,079,134 State Public  Defender$3,931,055$4,935,755$5,559,732$6,323,000$7,585,954 1$7,677,000 2 L1-3          Geri BrownL1-3          Budget OfficerL1-3          ATSS 597-1953FN1 Budgeted amount 1981-02FN2 Budgeted amount 1982-83

1.   Clearly, People v. Bower was also decided on state constitutional grounds, but the court made no distinction between the two constitutional bases for its decision.

2.   It is apparent that both the federal judiciary and our Supreme Court deem the terms “seizure” and “detention” to be interchangeable.

L. THAXTON HANSON, Associate Justice.

LILLIE, Acting P.J., concurs.