PEOPLE v. GRACE (1983)

The People appeal from an order granting defendant's motion to dismiss an information under Penal Code section 995.   We have concluded that the order must be reversed and the matter remanded to the superior court for further proceedings.

Defendant James Edward Grace was arrested for violation of Health and Safety Code section 11378.5, possession of phencycledine (PCP) for purposes of sale.   Following a preliminary hearing he was certified to the superior court for trial.   The undisputed testimony given at the preliminary hearing provides ample support for the magistrate's order requiring defendant to answer to the charges against him.

At approximately 1:45 a.m. on October 31, 1981, Los Angeles Sheriff's Deputy Lawrence Swanson, assigned to uniform patrol in a duly marked vehicle, observed defendant and a companion conversing in the parking lot of an apartment building where numerous narcotics arrests had recently occurred.   As the patrol car approached, the two men looked in the deputy's direction and immediately fell silent.   Defendant then turned, reached into his right jacket pocket and walked away.   Swanson and his partner drove into the lot.   Defendant quickened his pace and began to run when Swanson exited his vehicle.

As the deputy stood watching, defendant withdrew a brown object from his pocket, threw it over a fence and continued running, rounding a corner and heading toward the apartment stairs.   Deputy Swanson's partner, who also had observed the flight, requested that defendant return and he complied.   The abandoned object was found to be a bottle containing a significant quantity of liquid phencycledine.

In denying defendant's motion to dismiss, the magistrate specifically rejected defendant's assertion that “the officer had no probable cause to approach the individuals and subsequent conduct by them was the result of an unlawful approach.  [sic]”

It is well settled that when considering a motion to dismiss under Penal Code section 995, the superior court merely sits as a reviewing court and has no power to reweigh evidence or to make findings of fact.   All reasonable inferences must be indulged in favor of the magistrate's findings.  (People v. Parker (1974) 44 Cal.App.3d 222, 224, 118 Cal.Rptr. 523;  Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927–28, 85 Cal.Rptr. 493;  People v. Heard (1968) 266 Cal.App.2d 747, 749, 72 Cal.Rptr. 374.)

In granting defendant's motion, the trial court after considering defense counsel's reassertion that the abandonment of the contraband was occasioned by unlawful police activity observed:

“In this situation you have the police officer observing the defendant, and a co-suspect in a parking lot at 1:30 in the morning standing there.   I would agree that that would be an improper basis to detain them.   There's nothing inherently suspicious about two individuals standing in the middle of a parking lot at 1:30 in the morning.   The officer testifies he originally suspected them of burglary, but upon the defendant's committing the heinous act of putting one hand in his pocket, he concluded that they were now involved in drugs rather than committing a burglary.

“I—there's no question in my mind, had the police detained them at that juncture it would have been an illegal detention without basis, or reasonable basis for detaining them.   But the simple fact of the matter is the officer simply pulled up the car, according to the transcript, the defendant looked in the direction of the car, started to run.   The defendant, according to the testimony in the transcript, then threw away from his person a bottle which was subsequently determined to contain PCP, and at that point the order to stop was given.

“It seems to me irrelevant as to what the officer—I think it is irrelevant what the officers were intending to do, if in fact they didn't do it.   That if the purpose of the exclusionary rule is to deter unlawful police conduct that's what we should busy ourselves with and not attempt to deter contemplation of unlawful conduct by the police.”  (Emphasis added.)

In spite of these observations, the trial court apparently felt that somehow the decision in People v. Menifee (1979) 100 Cal.App.3d 235, 160 Cal.Rptr. 682, nevertheless required setting the information aside.   Clearly this was error.

It is well established that when officers illegally threaten to arrest and search a suspect, and he attempts to divest himself of incriminating evidence that he reasonably believes will inevitably be discovered in any event, his efforts do not constitute such an “abandonment” or voluntary exposure as would waive his constitutional rights.  (Badillo v. Superior Court (1956) 46 Cal.2d 269, 273, 294 P.2d 23;  Gascon v. Superior Court (1959) 169 Cal.App.2d 356, 359, 337 P.2d 201.)

In Menifee, undercover officers were walking in an area of known narcotics activity.   When the defendants observed the officers, whom they knew, they abruptly turned and walked in the opposite direction with one of the officers in pursuit.   As the defendants reached the corner, one tossed a black pouch into a trash can.   The officers retrieved the pouch, found it to contain heroin and detained the men.   A motion to suppress was granted and the prosecution appealed.   The Court of Appeal held that in the instance there under consideration it was possible to uphold a trier of fact's conclusion that when pursued by the officers, the defendants' attempt to divest themselves of their drugs was but a reasonable response to some threatened, but unspecified unlawful police action.

The Menifee decision, which does not set out what facts stemming from the past confrontations of the parties warranted the suspects in believing that a search of their persons was imminent, is at best a rather extreme example of an appellate court's deference to the fact finding power of the trial court.

The suggestion in Menifee that a disgorging of evidence in the face of a threat of an illegal detention is covered by the rule in Badillo v. Superior Court, supra, was criticized and rejected in People v. Patrick (1982) 135 Cal.App.3d 290, 292, 185 Cal.Rptr. 325;  hrg. den. Nov. 15, 1982.   We believe that People v. Patrick correctly states the law.

In the vast majority of instances, the mere approach of a police officer does not produce such a sense of hopelessness in a citizen that he would or rationally could conclude that it was necessary to rapidly jettison his personal property.   Even a true “detention” for purposes of questioning would not suggest that a search of one's person was imminent or threatened.

The law is clear that “A defendant cannot immunize himself from damning evidence by discarding that evidence on his subjective assumption that an illegal search would follow his detention.”  (People v. Patrick, supra, at p. 294, 185 Cal.Rptr. 325.)

 Absent some intrusion into a constitutionally protected area, there is no need to inquire into the reasonableness of police conduct.   A mere “contact” or “approach” does not invoke Fourth Amendment considerations.  (See People v. Bower (1979) 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115;  People v. King (1977) 72 Cal.App.3d 346, 349, 139 Cal.Rptr. 926.)

 A seizure within the purview of the Fourth Amendment does not occur until an individual's freedom of movement is curtailed or there is an involuntary submission to a show of authority.  (See also People v. King, supra, at p. 349, 139 Cal.Rptr. 926.)

 It follows therefore that the suspicions or beliefs of an officer are irrelevant unless and until he acts upon them in some manner constituting an infringement of a suspect's rights.  (People v. Jones (1979) 96 Cal.App.3d 820, 825, 158 Cal.Rptr. 415;  People v. Denman (1980) 112 Cal.App.3d 1003, 1009, 169 Cal.Rptr. 742.)

“[I]t is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes.   Such inquiries, although courteously made and not accompanied with any assertion of a right to enter or search or secure answers, would permit the criminal to defeat his prosecution by voluntarily revealing all of the evidence against him and then contending that he acted only in response to an implied assertion of unlawful authority.”  (People v. Michael (1955) 45 Cal.2d 751, at 754, 290 P.2d 852.)

Defendant seeks to fashion a rule that would foreclose officers who lacked a sufficient basis for detention from merely “approaching” anyone on the street even though the contact itself involves no constitutional intrusion.   This is not the law.

 Furthermore, a defendant's subjective belief, however strongly held, that the approach of a policeman signals a search of his person, is irrelevant unless based upon objective evidence of the conduct of the approaching policeman which reasonably indicates that an illegal search of the defendant's person is threatened.

 In the case at bench the deputies had a right at least equal to that of the defendant to enter the parking lot either on foot or in an automobile.   Once in the parking lot the deputies had a perfect right to exit the vehicle.   There is not a scintilla of evidence that the deputies did anything that could be viewed as other than what their sworn duty required of them under the circumstances.

The order of dismissal is reversed.

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.