People v. Courtney

Opinion

Defendant Jack Courtney was convicted of the offense of possession of marijuana (Health & Saf. Code, § 11530) following a court trial. Imposition of judgment and sentence was suspended and he was placed on probation. His appeal from the “judgment” will be treated as an appeal from the order granting probation. (See Pen. Code, § 1237, subd. 1.)

Courtney’s first contention is that the narcotic evidence upon which his conviction was based was the product of a Fourth Amendment violation— an illegal “stop and frisk” or at least the threat of such illegal conduct.

George Bruschi was employed as a police officer by Stanford University, a private educational institution. He was not a peace officer as defined by Penal Code sections 7, 817 and 852.1. During midafternoon of December 1, 1968, he was on mobile patrol in a residential area which was the private property of the university. There had been an alarming number of crimes in the area. The officer had had an “extreme” amount of trouble there, including burglaries and indecent exposures. The home of the university’s president was nearby and he had personally been threatened. His office had been fire bombed and gasoline had been found in his garage. There had been other threats of bombings and actual bombings on the university grounds. Another problem was a “run of people stealing women’s underclothing” from clotheslines. The university’s police were advised to “be cautious,”

In the meantime another officer arrived and a crowd of 18 to 20 people had gathered. Further inquiry as to the nature of the bulge was futile, Courtney insisting, “he was not under arrest, and he did not have to reveal what was in his pocket.” Since other officers had had trouble with crowds while making “investigations on the campus,” Officer Bruschi told Courtney he “was going to hold him for further investigation because there was a crowd gathering on the corner. For both our welfare—”; he felt “it was common sense to get us both off the street.” He further testified: “I told him that I would have to transport him to the Stanford Police Station for further interrogation because there was a crowd gathering, and I felt it wasn’t common sense to stay out there at that intersection any longer than we had already been.”

Officer Sanguinetti who had responded to the radio call testified: “I arrived there, and I got out of my vehicle, and Officer Bruschi came to me and said, T have a problem here that I’d like you to stand by with for a few minutes.’ I said, ‘All right.’ I said, ‘What seems to be the trouble?’ He said, ‘Well, this fellow has got something concealed under his coat.’ I stated, ‘Did you ask him what it was?’ And he said, ‘Yes, but he won’t tell me.’ And I

Both officers testified that Courtney was not under arrest at this point.

Upon being told that the investigation would be continued at the university’s police station, Courtney pulled the bag from his pocket, handed it to the officers, and exclaimed: “ ‘Here it is. Six lids of marijuana.’ ” Courtney was then placed under arrest for possession of marijuana. He effectively confirmed the officer’s testimony, stating that when he was about to be taken to the station “I voluntarily just gave it to them.”

No contention is made by the People on this appeal that until Courtney finally handed the “bag” to the officer, stating it contained marijuana, there was reasonable cause for his arrest. And there would seem to be no question but that the object was produced as a direct result of the officer’s statement that they would have to “continue this”'at the university police station. The question before us then is whether the police conduct up to that point was within their “legitimate investigative sphere.” (See Terry v. Ohio, 392 U.S. 1 , 13 [ 20 L.Ed.2d 889 , 901, 88 S.Ct. 1868 ].)

It is now established law “that circumstances short of probable cause to make an arrest may still justify an officer’s stopping pedestrians or motorists on the streets for questioning.” (People v. Mickelson, 59 Cal.2d 448 , 450 [ 30 Cal.Rptr. 18 , 380 P.2d 658 ]; see also Terry v. Ohio, supra, 392 U.S. 1 , 22 [ 20 L.Ed.2d 889 , 906]; People v. One 1960 Cadillac Coupe, 62 Cal.2d 92 , 96 [ 41 Cal.Rptr. 290 , 396 P.2d 706 ].) “While the circumstances which justify temporary detention may be bewilderingly diverse” (People v. Manis, 268 Cal.App.2d 653 , 659 [ 74 Cal.Rptr. 423 ]), such a detention is proper when the circumstances are such as would indicate to a reasonable police officer that such a course is necessary to the proper discharge of his duty. (People v. One 1960 Cadillac Coupe, supra, pp. 95-96; People v. Manis, supra, p. 659.) “ ‘The rationale of all these decisions is that an officer of the law, employed to maintain the peace and to prevent crime, as well as

Here, Officer Bruschi, patrolling a private university residential area that had been the scene of bombings, threats of further bombing, and other violence and crime, observed an oddly dressed person who was a stranger to the neighborhood. Upon seeing the officer the stranger turned his head as if to avoid a confrontation. The officer’s decision to talk to the individual and investigate further was clearly in the proper discharge of his duty.

Because of the stranger’s paucity of identification and his statement that he was headed for the home of one known to have a police record, the officer’s decision to detain him while he ran a radio check was proper. (See People v. Bloom, 270 Cal.App.2d 731 , 735 [ 76 Cal.Rptr. 137 ]; People v. McVey, 243 Cal.App.2d 215 , 217 [ 52 Cal.Rptr. 269 ].) This action drew the unsolicited response from Courtney that he had a hit-run conviction and had been arrested for narcotics and carrying a concealed .38 caliber firearm. Furthermore, at this point a suspicious bulge was observed in Courtney’s jacket. If not before, the officer then had good reason to consider his own personal safety. He was permitted by law to search Courtney for weapons. Terry v. Ohio, supra, 392 U.S. 1 , 26 [ 20 L.Ed.2d 889 , 909], states: “The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person. It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime.” (See also People v. Mickelson, supra, 59 Cal.2d 448 , 450-451.)

In an effort to make the weapon search the officer received no cooperation from Courtney. When a physical probe of the suspicious object was made he drew back making it physically impossible to “get a good enough feel of the

The issue seems to narrow to whether an adjournment of the investigation and weapon search to the university police station would have been unreasonable and therefore violative of Fourth Amendment standards. If so, then any evidence resulting from a threat to do so would be constitutionally inadmissible. (See Badillo v. Superior Court, 46 Cal.2d 269 [ 294 P.2d 23 ]; Gascon v. Superior Court, 169 Cal.App.2d 356 , 358 [ 337 P.2d. 201 ].)

No exact formula exists for determining reasonableness; each case must be decided on the facts and circumstances presented to the officers at the time they were required to act. (People v. Ross, 67 Cal.2d 64 , 69-70 [ 60 Cal.Rptr. 254 , 429 P.2d 606 ]; People v. Ingle, 53 Cal.2d 407 , 412 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ].)

We note that an otherwise permissible detention of a person for investigation is clearly not restricted to the precise point of'accostation. It is proper in such a case for the police to require one to step out of an automobile (People v. Martin, 46 Cal.2d 106 , 108 [ 293 P.2d 52 ]; People v. Superior Court, 267 Cal.App.2d 363 , 365 [ 72 Cal.Rptr. 868 ]; People v. Heard, 266 Cal.App.2d 747 , 751 [ 72 Cal.Rptr. 374 ]), or to “step back to the police vehicle” (People v. McVey, supra, 243 Cal.App.2d 215 , 217). It is common and, so far as we know, accepted practice to continue questioning of a suspect in a nearby police car. (See People v. McVey, supra, p. 217.) And it has been held not per se unreasonable to take a person under investigation “to the police station ... for further investigation.” (People v. Fry, 271 Cal.App.2d 350 , 355 [ 76 Cal.Rptr. 718 ].)

A recapitulation of the totality of “facts and circumstances” here presented to the officers is helpful. They observed a person in a private (university) community who apparently had no business there. The area had been the scene of much crime and violence including bombing and threats of bombing. Without constitutional infringement they learned that the person had a police record for “hit and run” driving, narcotics violation, and carrying a concealed .38 caliber weapon. They were refused an opportunity to determine the contents of a bag which caused a bulge in the suspect’s clothing. Under the circumstances the police could reasonably suspect that it contained a weapon, or even explosives which today may take a wide variety of shapes and consistencies. Further investigation would obviously require some force which if used on the street would probably antagonize a growing and apparently hostile crowd of bystanders.

We find it unnecessary to a disposition of this appeal to pass upon Courtney’s remaining argument that the conduct of the private Stanford University Police Department was “state action” within the scope of the Fourth and Fourteenth Amendments. Our decision is based upon the assumption, arguendo, that it was such “state action.”

The order granting probation, described as a “judgment” in the notice of appeal, is affirmed.

Molinari, P. J., and Sims, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied December 14, 1970. Peters, J., was of the opinion that the petition should be granted.