GONZALEZ v. PEOPLE (1984)

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.

On February 24, 1983, this court filed its original opinion certified for publication in the above-captioned case, denying petitioner's writ.

On May 19, 1983, the California State Supreme Court, granted petitioner's petition for a hearing in the case at bench, and ordered the cause transferred to that court.

On August 8, 1983, the California State Supreme Court filed its opinion in People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692 and on October 20, 1983, filed its opinion in Wilson v. Superior Court (1983) 34 Cal.3d 777, 195 Cal.Rptr. 671, 670 P.2d 325.

On December 15, 1983, the State Supreme Court ordered the instant case “retransferred to the Court of Appeal, Second District, Division One, for reconsideration in light of People v. Smith (1983) 34 Cal.3d 251 [193 Cal.Rptr. 692, 667 P.2d 149];  Wilson v. Superior Court 34 Cal.3d 777 [195 Cal.Rptr. 671, 670 P.2d 325].”

On February 27, 1983, following a request by this court for the parties to submit letter briefs concerning the applicability of the Supreme Court decisions of People v. Smith, supra, 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149 and Wilson v. Superior Court, supra, 34 Cal.3d 777, 195 Cal.Rptr. 671, 670 P.2d 325, the matter was reargued.

Our opinion, following retransfer and resubmission pursuant to the Supreme Court order, follows:

FACTS

On September 22, 1981, Deputy Robertson McGavock of the Metro Dade County Police Department in Florida was assigned to narcotics investigation at the Miami International Airport.   He had been a police officer for twenty years, spent the last ten in narcotics-related duties, and had worked at the Miami International Airport for the past three and a half years.

Deputy McGavock testified at the 1538.5 hearing that on that date he observed a man at the Pan American ticket counter in the Miami Airport who continually looked 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 in the direction of the Pan Am departure concourse, he looked over his shoulder several times.

Deputy McGavock approached the man, who had stopped at a bank of public telephones, identified himself, 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.”   Officer McGavock 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.   Officer McGavock testified that the Miami Airport was probably the busiest terminal for trafficking of cocaine and marijuana to other points in the United States.

Detective Michael J. Celmer, a veteran police officer with 20 years service, engaged in narcotic investigations for 14 years, and assigned to Los Angeles International Airport for about 7 years, confirmed that Officer McGavock called him on the phone at the airport on September 22, 1981, and told him of his observations as described above.   Following the telephone call from McGavock, Detective Celmer 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 Renaldo 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 shaped area below his nose which made it appear as if he had just shaved off a mustache.

Detective Celmer found it unusual that the three men appeared to know one another but that they did not acknowledge each other.   Arcia appeared nervous but not as nervous as 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 3,000-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 Gonzalez 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 a clear plastic bag containing cocaine placed inside the underwear.   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 special agent with the Drug Enforcement Administration, United States Department of Justice, who conducted investigations on behalf of the Immigration Department in conjunction with his narcotic duties and assigned to the Los Angeles airport, testified that detective Celmer had related to him the facts of the phone conversation he (Celmer) had with Deputy McGavock in Miami;  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, in English, that he would not mind showing identification but he had none with him.   Agent Marcello then asked Arcia if he was a citizen of the United States.   Arcia said that he was not.   Agent Marcello then asked Arcia if he could see his passport and visa or valid green card.   Arcia stated that they were in Miami.   The federal agent testified that at that point it was his intention to detain Arcia for further investigation.   Soon thereafter, Officer Celmer told Agent Marcello that he had found contraband on Gonzalez and told the federal agent to place Arcia under arrest.   The federal agent further testified that Arcia was free to go until Arcia said he did not have a passport and a visa or a green card.   Agent Marcello testified that he detained Arcia “on [his] own for immigration” and then placed him under arrest at Officer Celmer's direction.

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 1538.5 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

The determinative issues are whether or not 1) Gonzalez was improperly detained, and voluntarily consented to the search of his purse;  and 2) the detention of Arcia, if any, was justified.

DISCUSSION

The occurrences involving the petitioners herein took place on or about September 22, 1981.   On June 8, 1982, Proposition 8, the “Victims' Bill of Rights,” was enacted in article I, section 28, of the California Constitution.   This constitutional amendment includes a “Right-to-Truth-in-Evidence” provision (§ 28(d)) which in pertinent part states that “Relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post-conviction matters and hearings, ․” ¹

In People v. Smith, supra (1983), 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149, the State Supreme Court, addressing the retroactivity issue of Proposition 8, held that Proposition 8 applies only to prosecutions for crimes committed on or after June 9, 1982, the effective date.   Accordingly, pursuant to Smith, the effect of the Truth-in-Evidence provision in Proposition 8 is no longer an issue in the case at bench since the crimes committed here pre-date the effective date of Proposition 8.

Having reconsidered the case at bench in light of Wilson v. Superior Court, supra, 34 Cal.3d 777, 195 Cal.Rptr. 671, 670 P.2d 325, and the United States Supreme Court's decisions of United States v. Mendenhall (1980) 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497;  Reid v. Georgia (1980) 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890;  and Florida v. Royer (1983) 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229, as construed by the Wilson court, our conclusion remains unchanged as to both Gonzalez and Arcia.

RE DEFENDANT GONZALEZ

 We hold that the record amply supports the trial court's finding.   It is also our independent finding (People v. Leyba (1981) 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.

In Wilson v. Superior Court, supra, 34 Cal.3d 777, 195 Cal.Rptr. 671, 670 P.2d 325, as in the instant case, the critical issue presented is whether or not petitioner Gonzalez' Fourth Amendment rights against unreasonable search and seizure were violated by reason of being “illegally” detained by law enforcement officers who were engaged in their official duties of interdicting the funneling of narcotics and drugs into California through the Los Angeles International Airport.   In Wilson, as here, petitioner(s) had just deplaned from a flight originating in Miami, Florida, a major distribution point for narcotics arriving from Central and South America.

The Wilson court concluded that Reid v. Georgia, supra, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890, does not provide an answer to the detention issue since it turned on the “articulable suspicion” point.   Nor does the case at bench turn on such a point as to petitioner Gonzalez.

The Wilson court in analyzing United States v. Mendenhall, supra, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, concluded that at least a substantial majority of the United States Supreme Court agree with the standard set forth by Justice Stewart in his separate opinion in that case, 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’ (United States v. Mendenhall, supra, 446 U.S. at p. 554 [100 S.Ct. at p. 1877, 64 L.Ed.2d at p. 509.] )”  (Wilson v. Superior Court, supra, 34 Cal.3d 777, 789, 195 Cal.Rptr. 671, 670 P.2d 325.)

The Wilson court looked to the lead opinion in Florida v. Royer, supra, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229, for its primary guidance on the distinction between a “consensual encounter” and a “detention.”   The Wilson court stated 34 Cal.3d at pages 789 and 790, 195 Cal.Rptr. 671, 670 P.2d 325:

“The opinion [in Royer ] observes:  ‘[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.  [Citations.]  Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.  [Citation.]  The person approached, however, need not answer any question put to him;  indeed, he may decline to listen to the questions at all and may go on his way.  [Citations.]  He may not be detained even momentarily without reasonable, objective grounds for doing so;  and his refusal to listen or answer does not, without more, furnish those grounds.  [Citation.]  If there is no detention—no seizure within the meaning of the Fourth Amendment—then no constitutional rights have been infringed.’  (460 U.S. at p. 497 [75 L.Ed.2d at p. 236, 103 S.Ct. at p. 1324].)  [¶]  Though this passage gives some indication of the attributes of a consensual encounter, it does not in itself set forth a clear constitutional standard for distinguishing such an encounter from a detention.   That additional guidance is provided in a subsequent passage, where the lead opinion, in rejecting the state's contention that the ‘entire encounter was consensual,’ states:  ‘Asking for and examining Royer's ticket were no doubt permissible in themselves, but when the officers identified themselves as narcotic agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment.   These circumstances surely amount to a show of official authority such that “a reasonable person would have believed that he was not free to leave.”   United States v. Mendenhall, 446 U.S. 544, 554 [100 S.Ct. 1870, 1877, 64 L.Ed.2d 497] (Opinion of Stewart, J.).’  (Italics added.)  (460 U.S. at p. 501 [75 L.Ed.2d at p. 239, 103 S.Ct. at p. 1326.)”

In concluding that Wilson was “detained” within the meaning of the Fourth Amendment, the State Supreme Court focused on what transpired after the officer approached Wilson and identified himself and asked if he might have a moment of his time to which Wilson consented.   The State Supreme Court specifically noted that the officer testified that following that exchange he told Wilson that he was conducting a narcotics investigation, “ ‘and that we had received information that he [Wilson] would be arriving today from Florida carrying a lot of drugs ’ ” (Italics original;  Wilson v. Superior Court, supra, 34 Cal.3d 777, 781, 195 Cal.Rptr. 671, 670 P.2d 325.)

The Wilson court stated at pages 790 and 791:  “Thus, the question before us is whether, at the time Wilson consented to the search of his attache case, a reasonable person in Wilson's position would have believed that he was not free to leave.  [¶]  Reviewing the facts of this case in light of this standard and the relevant portions of Royer, it is evident that Detective Kaiser did not detain Wilson, for federal constitutional purposes, merely by approaching him, identifying himself as a police officer, and asking if he might have a minute of his time.   At that point, however, the officer did not simply ask Wilson if he would permit a search of his luggage.   Instead, he advised Wilson that he was conducting a narcotics investigation and that he ‘had received information that he [Wilson] would be arriving today from Florida carrying a lot of drugs.’  (Italics added.)  [¶]  Common sense suggests to us that in such a situation, an ordinary citizen, confronted by a narcotics agent who has just told him that he has information that the citizen is carrying a lot of drugs, would not feel at liberty simply to walk away from the officer.   Before Kaiser made that statement, Wilson might well have thought that the officer was simply pursuing routine, general investigatory activities, and might reasonably have felt free to explain to the officer that he had an important appointment to keep and did not have the time—or, perhaps, the inclination—to answer the officer's questions or to comply with his requests for permission to search.   Once the officer advised Wilson that he had information that Wilson was carrying a lot of drugs, the entire complexion of the encounter changed and Wilson could not help but understand that at that point he was the focus of the officer's particularized suspicion.   Under these circumstances—and particularly in the absence of any clarifying advice from the officer explaining to Wilson that he was, in fact, free to drive away if he desired—no reasonable person would have believed that he was free to leave.   (See United States v. Berry (5th Cir.1982) 670 F.2d 583, 597;  United States v. Robinson (5th Cir.1980) 625 F.2d 1211, 1216–1217.)”

We perceive the totality-of-the-circumstances in the case at bench to be markedly distinguishable from the totality-of-the-circumstances in the Wilson case.   We hold, as a matter of law, that Detective Celmer acted properly in all respects and petitioner Gonzalez' Fourth Amendment rights were not violated.

Here, Officer Celmer and Agent Marcello of the Drug Enforcement Administration (DEA) dressed in civilian attire approached defendants Gonzalez and Arcia, and a third person (Mena), in a public place at the Los Angeles International Airport;  Officer Celmer identified himself to Gonzalez as a police officer and asked Gonzalez if he (Officer Celmer) could talk to them a moment.   Defendant Gonzalez, who spoke English, said “Yes.”

 “[T]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets” (Terry v. Ohio (1968) 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889, Mr. Justice White's conc. opn.), and 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.  (See Wilson v. Superior Court, supra, 34 Cal.3d 777, 790, 195 Cal.Rptr. 671, 670 P.2d 325.)

Officer Celmer 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).

In Wilson, the critical circumstance that converted what was a “consensual encounter” into a “detention” was the fact that the narcotics officer informed Wilson that he [the officer] was informed that Wilson would be arriving from Florida carrying “a lot of drugs.”  It was that statement to Wilson which changed “the entire complexion of the encounter” because, the court concluded, “․ particularly in the absence of any clarifying advice from the officer explaining to Wilson he was, in fact, free to drive away if he desired ․ no reasonable person would have believed that he was free to leave.”

Here, unlike in Wilson, Officer Celmer did not advise Gonzalez that he (Celmer) had information that Gonzalez was carrying drugs.

Officer Celmer, unlike in Wilson, advised defendant Gonzalez that he did not have to speak with him and did not have to show him identification.   Here, 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 record before us which suggests that defendant Gonzalez had any objective reason to believe at anytime prior to the discovery of the cocaine in his purse 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.

 Counsel for defendant Gonzalez, in his brief and at oral argument, urges that the fact that Officer Celmer stated that Gonzalez had a “startled look” on his face when he handed his purse to the officer and said, “I don't have anything in here, here” converted the encounter into a detention.   The look on a face under these circumstances does not equate to the officer's statement in Wilson.   The argument that a “startled look” on Gonzalez' face converted the encounter into a detention is too fanciful and is such a slim and limp reed as to warrant no further discussion.

In short, we conclude that the facts of the instant case in respect to defendant Gonzalez fall into the category of a “consensual encounter” as distinguished from a “detention” as those terms are discussed in Wilson.

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.

RE DEFENDANT ARCIA

 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.²

 Assuming that there was a detention of Arcia, it and his subsequent arrest was justified on the basis of the totality-of-the-circumstances known to the agent including the information received from Miami, the behavior of Arcia's companions in Los Angeles, and the finding that Gonzalez possessed cocaine.³

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 detention and arrest in respect to the narcotics aspect was accurate.

Agent Marcello did not stop defendant Arcia, the defendant was standing engaged in conversation with his companions when 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.

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 for the drug traffic;  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.

It was after Officer Celmer told the federal agent he had found cocaine in Gonzalez' possession and instructed him to arrest Arcia, that Arcia was placed under arrest.

 In any event, the narcotics aspect of this case aside, since it is uncontradicted that Agent Marcello was acting in a dual capacity as an investigator on behalf of Drug Enforcement and Immigration Agencies of the Federal Government, his conduct in his capacity as an investigator on behalf of the Immigration Department was completely proper in all respects.

The reporter's transcript contains the following testimony of Agent Marcello during direct and cross-examination:

“Q And also pursuant to your assignment, do you also conduct an investigation on behalf of the Immigration Department as well?

“A In conjunction with my narcotic duties.

“Q And when you first approached Mr. Arcia, what happened?

“A Well, when I first approached him, he was standing with another person;  so I approached two people, and I presented my identification.

“Q Were you in plain clothes?

“A Yes, I was, and 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 [Arcia and Mena] if they would mind showing me some identification.

“Q What did Mr. Arcia say, if anything ?

“A Mr. Arcia said that he would not mind showing me identification but that he didn't have any identification with him.

“Q Did he speak English to you?

“A Yes, he did.

“Q And after he made that response, did you ask him an additional question ?

“A Yes, I did.

“Q What was that ?

“A I asked him if he was a citizen of the United States.

“Q And what did he say ?

“A He said that he was not.

“Q What did you ask him then ?

“A I then asked him if he had—if I could see his passport if he had a passport and with a visa or a valid green card and which he responded that he did not.

“Q Did you say you assumed he had one or you asked to see it ?

“A I asked if he had one.

“Q And what did he state ?

“A He said he did not have one.

“Q Did he say where they were ?

“A He said they were in Miami.   He left them in Miami.

“Q At that point was it your intention to detain Mr. Arcia for further investigation ?

“A Yes, it was.

“Q And did Officer Celmer soon thereafter inform you about some contraband that he recovered?

“A Yes, he did.

“Q And did he say anything to you about doing anything with defendant Arcia or Mr. Mena?

“A Yes, he did.   He said to bring them to the office.

“Q Did he tell you to place them under arrest?

“A Yes.   Place him under arrest and bring him to the office.

“Q During the time that you were speaking with defendant Arcia, did you place your hands on him?

“A No, I did not.

“Q Did you threaten him in any way?

“A No.

“Q Did anyone in your presence threaten him?

“A Absolutely not.

“Q Was he free to go up to the point where you determined that he did not have a passport and a visa or a green card ?

“․

“THE WITNESS:  He was free to go until that time.”  (Emphasis added.)

Clearly, a federal agent acting in his official capacity for the Immigration Service who would not have detained for further investigation an individual, admittedly not a citizen of the United States and who is unable to supply identification and documentation substantiating that he was legally within this country, would constitute dereliction of duty.   As was noted, Arcia, while in the room where he was taken for further questioning, in fact abandoned narcotics which were in his possession.   Under the totality-of-the-circumstances, we cannot say that Agent Marcello's conduct was unreasonable or improper.

In reference to the dissenting opinion's reliance on People v. Bower (1979) 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115, as previously noted, when the State Supreme Court retransferred this matter to this court it specifically ordered “reconsideration in light of People v. Smith (1983) 34 Cal.3d 251 [193 Cal.Rptr. 692, 667 P.2d 149];  Wilson v. Superior Court (1983) 34 Cal.3d 777 [195 Cal.Rptr. 671, 670 P.2d 325].”  This we did.   There was no mention in that order of the 1979 Bower decision.  (But see also, fn. 1 of this majority opinion.)   Moreover, this majority opinion is bottomed on the “totality-of-the-circumstances” hereinbefore summarized (See also fn. 3, supra ) and not on a selective portion of the rather extensive record.

DISPOSITION

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

I respectfully dissent.   I agree that Mr. Gonzalez' initial encounter with Officer Celmer did not constitute a detention under the standard enunciated in Wilson v. Superior Court (1983) 34 Cal.3d 777, 195 Cal.Rptr. 671, 670 P.2d 325, but the inquiry does not end there.   In People v. Bower (1979) 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115 our Supreme Court presented two tests for a detention.  “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․’  (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 at p. 643, 156 Cal.Rptr. 856, 597 P.2d 115.)   The court in Bower expressly rested its decision on both the federal and California constitutions.  (Id., at p. 643, fn. 3, 156 Cal.Rptr. 856, 597 P.2d 115.)   In Wilson the court rested its analysis on federal principles and expressly declined to discuss the meaning of a detention under the California Constitution.  (Wilson v. Superior Court, supra, 34 Cal.3d at p. 783, 195 Cal.Rptr. 671, 670 P.2d 325.)   In these circumstances I believe we are bound not only by Wilson but also by Bower.

Officer Celmer was acting on the suspicion that Mr. Gonzalez might be personally involved in some criminal activity when he approached Mr. Gonzalez.   When asked at the suppression hearing why he had accosted Mr. Gonzalez, the arresting officer stated, “I have made numerous arrests on incoming passengers from [Miami] 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․’  [Citation.]”  (People v. Bower, supra, 24 Cal.3d 638, 643, 156 Cal.Rptr. 856, 597 P.2d 115.)

A detention is justified only if there are specific and articulable facts which cause a police officer to entertain a subjective and objectively reasonable suspicion that “(1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity․  The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.  [Citation.]”  (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957, fn. omitted;  see Reid v. Georgia (1980) 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890.)

The testimony of Officer Celmer set forth above indicates that he did not have sufficient grounds to detain Mr. Gonzalez.   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.”  (Ibid.)  The court held 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.   An 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.)

Mr. Arcia was detained under the analysis of both People v. Bower, supra, 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115 and Wilson v. Superior Court, supra, 34 Cal.3d 777, 195 Cal.Rptr. 671, 670 P.2d 325.   Mr. Arcia was approached by Agent Marcello who told him that he was a federal agent conducting a narcotics investigation.   In contrast to Mr. Gonzalez, Mr. Arcia was never told that he did not have to answer questions and was free to go.   In these circumstances a reasonable person would not have believed he was free to leave.  (Wilson v. Superior Court, supra, 34 Cal.3d at p. 791, 195 Cal.Rptr. 671, 670 P.2d 325.)

Since there was no basis to detain Mr. Gonzalez, a fortiori, there was no basis to detain Mr. Arcia.   Agent Marcello testified that he approached Mr. Arcia because he thought Mr. Arcia might be the person referred to by the Florida policeman who had called Officer Celmer.   Agent Marcello, when asked if he noticed anything unusual about Mr. Arcia, replied, “He was looking around, and he was somewhat observing, observing other people around him.”

The majority attempts to justify the detention of Mr. Arcia on immigration grounds.   Immigration problems do not justify the initial detention because they did not surface until after Agent Marcello had questioned Mr. Arcia.   Mr. Arcia was not arrested for an immigration violation.   When asked by the deputy district attorney why Mr. Arcia was arrested, 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.”   In fact, Agent Marcello arrested Mr. Arcia on behalf of Officer Celmer at Officer Celmer's direction for the reason that Officer Celmer stated, namely, because he, Mr. 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.

FOOTNOTES

1.   In this court's original opinion filed on February 24, 1983, we concluded that the Right-to-Truth-in-Evidence provision, (§ 28(d)) of Proposition 8, repealed by implication Penal Code section 1538.5 insofar as that section imposes higher standards for searches and seizures than under federal law and modified article I, sections 13 and 24, of the California Constitution by abrogating California decisional law imposing more restrictive standards for searches and seizures than under federal law.In this court's prior opinion filed on February 24, 1983, petitioners' writ was denied after applying the Truth-in-Evidence provision and construing applicable federal case law.   However, we also concluded that “[A]ssuming 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 (1979) ], and In re Tony C., supra, [21] 31 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.”  (Citing the following cases from this Second Appellate District:  People v. Jones (1979) 96 Cal.App.3d 820, 158 Cal.Rptr. 415 (per Lillie, Acting P.J., Hanson (Thaxton), J., and Ackerman, J. (Assigned by the Chairperson of the Judicial Council.) 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 Danny E. (1981) 121 Cal.App.3d 44, 174 Cal.Rptr. 123 (per Spencer, P.J., Lillie, J., and Hanson (Thaxton), J., conc.)We note that the State Supreme Court in Wilson v. Superior Court, supra, 34 Cal.3d 777, 195 Cal.Rptr. 671, 670 P.2d 325, bottomed its decision on United States Supreme Court decisions and primarily on Florida v. Royer (1983) 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229.

2.   Under the circumstances, the criteria discussed in Wilson relating to the reasonable belief of the defendant would suggest that no detention of Arcia in fact occurred prior to his arrest.

3.   Agent Marcello under direct and cross-examination testified, in pertinent part, as follows:“Q BY MS. AGATSTEIN:  Why did you approach the defendant Arcia?“A I thought he might be the person that was referred to us by Miami.   I was conducting a narcotics investigation, and I wanted to determine his identity.“Q And did you notice anything unusual about the defendant Arcia's demeanor as you watched him in the airport?“A He was looking around, and he was somewhat observing, observing other people around him.“Q Did he appear to be nervous?“A In that sense that he was looking around and pacing a little bit, not—he was in the phone booth and looking out and about.“․“Q BY MS. AGATSTEIN:  Was he looking over his shoulder at times?“A My recollection is he was looking, you know, around on both sides, and if that is over the shoulder, yes, you know.   He was very observant as to who was around him.“․” CROSS–EXAMINATION“Q When you indicated that Mr. Arcia looked around, observed other people around him, was pacing in a phone booth, was very observant as to what others around him were doing and together with the information you received from Officer Celmer from Deputy McGavock, is there anything else that you would add to that which would lead you to suspect or which would be factors which you could state now which contributed to the arrest of Mr. Arcia?“A Yes, there are.“Q All right.   Can you name those other factors?“A Yes.   They are—he had a tote bag.   He had no other luggage, did not go into the baggage claim area, and my experience that can be very typical of people that are bringing narcotics out to this area.   That was one factor.  [¶]  He appeared to be maintaining a distance initially from the other two travelers, although after he came out of the phone booth, he did join the other two people on the island, but initially it appeared that he was trying to be separate from them.   And at this time that is all that I recall in addition to what I stated on direct.“․“BY MR. ZELEN:“Q Did you arrest Mr. Arcia at Officer Celmer's direction?“A I detained him initially at my—on my own for the immigration.   So I—I detained him.“Q And did you arrest him at Officer Celmer's direction?“A Yes.“․” REDIRECT EXAMINATIONBY MS. AGATSTEIN:“Q Was there anything particular about the source of where Mr. Arcia was coming from that was a factor in your approaching Mr. Arcia?“A Yes.“Q What was that?“A Well, we—the primary reason why we work the Miami flights heavily is because Miami is a source city for cocaine and marijuana and various dangerous drugs to Los Angeles.   Los Angeles is a source city to Miami for heroin and some other drugs.“Q Have you made arrests of individuals deplaning for possession of narcotics?“A Yes, I have.“Q About how many arrests have you made for persons bringing drugs into California from out-of-state flights during your tenure at working at Los Angeles from Miami?“A I personally, I would estimate that I have made 40 arrests, and I probably participated in a couple hundred arrests.“Q And did defendant Arcia display characteristics that you observed in those individuals that you arrested for possession of narcotics?“A Yes.“Q Did he appear to understand you when you were speaking with him?“A Yes, he did.”

L. THAXTON HANSON, Associate Justice.

LILLIE, Acting P.J., concurs.