Crofoot v. Superior Court

Opinion

Petitioner, James Leslie Crofoot, seeks a pretrial writ of mandate pursuant to Penal Code section 1538.5, subdivision (o), his motion to suppress in the trial court having been denied. We stayed the trial and issued an order to show cause.

Petitioner was charged with burglary (Pen. Code, § 459).

Facts

Officer Reid of the Modesto Police Department testified in substance that at 3:30 a.m., while driving down McHenry Avenue on patrol, he

Codefendant Stine had a backpack on, the outside pockets of which were obviously bulging. He wore a blue vest, the right front pocket of which was also bulging. Part of a knife handle was visible out the top of the vest pocket. He was wearing a new cowboy hat. Petitioner Crofoot was also wearing a new cowboy hat. The pockets on a long-sleeved Levi jacket petitioner was wearing were also bulging. According to the officer, it was obvious that the pockets on the clothing the individuals wore, as well as the exterior pockets on the backpack, were filled with objects.

At that point the officer asked the individuals for identification. Stine replied that he had no identification but gave the officer his name. Petitioner showed the officer his driver’s license. In answer to the officer’s questions, Stine replied that they were coming from a friend’s house and were going to a friend’s house.

The officer then removed the visible fixed-blade “buck knife” from Stine’s jacket pocket and a visible folding-blade “buck knife” from a scabbard on petitioner’s belt.

Officer Reid testified the following conversation then took place:

“Q. [By the District Attorney] What were the next words spoken by either one of the three of you?

“A. [By Officer Reid] I think it was at that time that I asked Mr. Stine if he had any objections to my looking in the backpack that he was wearing.

“Q. At this point was the backpack still on him or had he taken it off?

“A. No, he was still wearing it.

“Q. What happened then?

“A. He asked me why. I told him that—I believe I said that we are—that we had a lot of burglaries in that area that they were coming from. And he asked me if I had a search warrant with me and I said no.

“Q. What was said next?

“A. I told him that he shouldn’t have any objections to my looking in the backpack if he weren’t doing anything. And I asked what his objection was to my looking in the backpack.” [At the preliminary hearing, following this statement by the officer there occurred a long conversation between counsel for the parties and the judge, following which the examination continued.]

“Q. [By District Attorney] Can you answer the question?

“A. [By Officer Reid] ‘None.’

“Q. Pardon me?

“A. ‘None.’

“Q. What happened physically at that point?

“A. I asked him to take the backpack off, which he did. He then opened the side pockets.”

Stine stated that although he removed the backpack from his back himself, he did not give the officer permission to search it, nor did he (that is, Stine) open up any portion of the backpack himself.

After searching Stine’s backpack, the officer advised petitioner of his Miranda rights and thoroughly searched him, seizing another knife and several rolls of stamps found in his pockets. The items were later identified as stolen property.

At the time the scabbard knife was removed from petitioner’s belt, which took place before the knapsack search, it is not clear from the record how many officers were present. The record shows that at some point in time two other officers arrived on the scene and were present during the search of the backpack and second search of petitioner’s person. The scabbard knife was confiscated at the same time as was the fixed-blade buck knife which was visible extending out of the shirt pocket of codefendant Stine. Officer Reid stated that after he requested that the two backpackers identify themselves, he did not make a pat-down search for weapons, but simply removed the weapons that were visible on the two suspects. The suspects were not acting hostile toward him, but the officer stated he “always [had] concerns about [his safety].” The second body search took place after the knapsack had been searched. Officer Reid admitted, upon cross-examination, that he patted down both individuals and searched their pockets for the sole purpose of finding additional contraband. The second body search was the one which produced additional knives and stamps. Immediately after the second body search, the two individuals were placed under arrest, handcuffed and placed in separate patrol cars.

It is not argued that the officer did not have probable cause to arrest the two individuals at the time the arrests were made. (See People v. Harris (1975) 15 Cal.3d 384 , 389 [ 124 Cal.Rptr. 536 , 540 P.2d 632 ],

The central issues are the legality of the detention and whether the officers had the voluntary consent of Stine to search the backpack. We have concluded that the detention was legal but the consent was involuntary.

The burden is upon the real party to justify the warrantless search. (People v. Hill (1974) 12 Cal.3d 731 , 747 [ 117 Cal.Rptr. 393 , 528 P.2d 1 ], disapproved on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889 , 896 [ 135 Cal.Rptr. 786 , 558 P.2d 872 ]; Wilder v. Superior Court (1979) 92 Cal.App.3d 90 , 96-97 [ 154 Cal.Rptr. 494 ].)

To justify a detention, real party must show specific articulable facts which reasonably caused the officer to believe that “(1) some activity out of the ordinary had taken place or was occurring or about to occur; (2) the activity was related to crime; and (3) the individual under suspicion was connected to the activity.” (People v. Bower (1979) 24 Cal.3d 638 , 644 [ 156 Cal.Rptr. 856 , 597 P.2d 115 ]; In re Tony C. (1978) 21 Cal.3d 888 , 893 [ 148 Cal.Rptr. 366 , 582 P.2d 957 ].) The stop is not justified if it is based on “mere curiosity, rumor, or hunch.” (Ibid.) While the facts known to the officer which justify the detention need not amount to probable cause or actual belief in guilt required to arrest, the prosecution still must show that the officer personally entertained suspicions that were objectively reasonable. (Ibid.)

During the hearing on the suppression motion below and again on appeal petitioner relies heavily on the factual similarity of People v. Bower, supra, 24 Cal.3d 638 . With respect to the second prong of the three-part test set forth supra, the Bower court noted that “the ‘nighttime factor’ is not ‘activity’ by a citizen, and this court has warned that this factor ‘should be appraised with caution’ [citation] and that it has, at most, ‘minimal importance’ in evaluating the propriety of an intrusion [citation].” (People v. Bower, supra, 24 Cal.3d at p. 645, fn. omitted [in the Bower case the detention there under judicial scrutiny took place at 8:37 p.m.].) Moreover, the Bower court also noted, with respect to the first prong of the three-part test, that “[t]he ‘high crime area’ factor is not an ‘activity’ of an individual.... [T]his court has appraised this factor with caution and has been reluctant to conclude that a location’s crime rate transforms otherwise innocent-appearing circum

We believe implicit in the officer’s statement is the threat that by exercising his right to refuse the search Stine would be incriminating himself or admitting participation in illegal activity (that is, that he had been “doing something”). It was equivalent to putting the following option to Stine: “By exercising your constitutional right to withhold consent from me to search the backpack you will be admitting to me that you have done something wrong; it is better to let me search the pack and discover for myself. You cannot leave until you give consent.” Thus, whatever consent was obtained was in fact “no more than acquiescence to a claim of lawful authority,” that is, the defendant realized that a penalty attached to the exercise of his Fourth Amendment right to refuse consent to an illegal search.

Stine had a constitutional right to remain silent and refuse to give consent, and the denial by the officer of the exercise of that right at the risk of suffering an adverse inference to be drawn by the officer amounted to placing an unauthorized condition upon the exercise of the right.

We have found no case directly in point. The situation is analogous to the cases holding that no adverse inference can be drawn against a householder for exercising his Fourth Amendment rights by refusing consent to an officer to make a warrantless search. (United States v. Prescott (9th Cir. 1978) 581 F.2d 1343 , 1350-1353.) As the court prophetically stated: “Yet use by the prosecutor of the refusal of entry, like use of the silence by the prosecutor, can have but one objective—to induce the jury to infer guilt. In the case of the silence, the prosecutor can argue that if the defendant had nothing to hide, he would not keep silent. In the case of the refusal of entry, the prosecutor can argue that, if the defendant were not trying to hide something or someone (in this case Duvernay), she would have let the officer in. In either case, whether the argument is made or not, the desired inference may be well

Because the purported consent was given under legal compulsion, it is deemed in law to be involuntary and cannot be relied upon as authorizing the search of the backpack.

After searching the outer pockets of the backpack and before entrance into its interior, Stine requested that the officer leave them alone. Nevertheless, the search into the interior continued, notwithstanding the officer’s admission that at that point in time he knew that he did not have consent to enter the central portion of the backpack. The conclusion is inescapable that the search of the interior part of the backpack was illegal and unauthorized.

As to petitioner Crofoot, after the officer initially removed the visible knife and after.searching Stine’s backpack, he advised petitioner of his Miranda rights, patted him down, and searched him, seizing several rolls of stamps and another knife in his pocket. These items, together with the items seized from Stine, were later identified as being stolen from a nearby burglarized store.

The officer admitted that after removing visible knives from the two individuals, he patted them down and searched their pockets for the purpose of finding additional contraband. It follows that these latter searches were admittedly exploratory, without consent and unauthorized. Accordingly, the evidence must be suppressed.

Let a writ of mandate issue directing the suppression of all evidence, tangible and intangible, obtained as a fruit of the unlawful search and seizure. The stay order heretofore issued is vacated.

Franson, J., and Hanson (P. D.), J., concurred.