definition 2, “maintenance of a person in custody or confinement, as while awaiting a court decision”
How later courts described this case
- definition 2, “maintenance of a person in custody or confinement, as while awaiting a court decision”
- cautioning that ‘‘high crime area justification is easily subject to abuse’’ [internal quotation marks omit- ted]
- noting that in that case “[njothing was being concealed, disposed of, exchanged, or even carried”
- time of 8:37 p.m., ‘‘while falling during darkness in winter, is simply not a late or unusual hour nor one from which any inference of criminality may be drawn’’
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in People v. Lloyd
24 Cal.3d 638, 645 , superseded by statute on other grounds as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733
The opinion
*650 CLARK, J.,
Dissenting. — To reach what they perceive to be an act of racial discrimination, the majority misstate the question presented by this case.
The question confronting us clearly is not “whether an officer may constitutionally detain a citizen because he is a white man who happens to be with a group of black men in a black residential area at 8:37 p.m.” (Ante, p. 641.) Were this truly the question, our court would be unanimous in answering “No.” However, other circumstances existed — in addition to that recited by the majority — leading the officers to detain and arrest defendant for being a felon in possession of a concealable firearm. (Pen. Code, § 12021.) The others, while mentioned in part by the majority in their statement of facts, are effectively ignored in later framing and analyzing the legal issue presented by the record.
Before discussing other factors supporting the detention, should we not dispassionately consider what the majority characterize as impermissible racial discrimination? Officer Povey had patrolled this black residential area of San Francisco for more than three years. With the exception of robbery victims, he testified he had never encountered a white person in the area on foot after dark for an “innocent purpose.” White persons he had encountered were usually there to purchase narcotics. Of 500 arrests the officer had made, 20 were of whites — all for narcotics offenses. In brief, in Officer Povey’s unfortunate experience, a white person does not risk entering this area on foot after dark unless to engage in unlawful activity.
Now this is a horribly distressing proposition. We deplore the conditions of urban life manifested in this record. However, in upholding our duty as an appellate court to view the evidence in light most favorable to the prevailing party below, we must accept the officer’s testimony. To not do so in this case perpetrates a cruel hoax. For by closing our eyes to the record and by restricting law enforcement activity in this neighborhood, do we not condemn its law abiding residents to further inhumanity?
Let us turn to the circumstances justifying the detention — the group’s backstairs behavior and defendant’s flight.
The majority’s summary of evidence distorts the scene. “The conduct observed by Officer Povey involved animated conversation among four or five persons who had just left an apartment building, each leaving to go in *651 different directions. Appellant walked briskly toward a nearby street. While the group was together, they were either talking, walking, or in a ‘huddle.’ Nothing was being concealed, disposed of, exchanged, or even carried. When they ‘huddled,’ they did so away from the elevator lobby and in plain view of the police officers. When they separated, they walked away on public sidewalks with no attempt to avoid the lighted, open portions of the area.” {Ante, p. 647.)
Not mentioned is the fact that the group, having just gotten out of the elevator, immediately sought to reenter it after looking in the officers’ direction. Omitted is the fact that when the group huddled, following their Keystone attempt to reboard the elevator, they looked in the officers’ direction “every so often.” Neglected is the fact that when one black man walked away from the group, in the opposite direction from the officers, “[h]e constantly was looking over his shoulder” at the policemen. Missed is the fact that when the officers advanced “maybe two steps” toward the group it “fragmented.” Against this background, the significance of defendant’s gait — characterized by the majority as “brisk” but by Officer Povey as a “very quick walk, almost a run” — is apparent, all suggesting judicial revisionism.
In denying the suppression motion, the trial judge concluded the detention was not based solely on the racial factor now isolated by the majority. The judge quite properly added that had he been asked to uphold the detention on that basis alone, he would have thrown the case out “as fast as those doors could swing.”
The judgment should be affirmed.