Petition — California v. Harris

Ss, re Cox ‘'t. U. SS

‘ RaJyTkD

JAN 5 1978

States... JR., CLERK

—— -

-_ eee

IN THE

Supreme Court of the Unite

October Term, 1975

BND, <ernce q5- 95 0

STATE OF CALIFORNIA,

Petitioner,

Ay

MARK LEE HARRIS,

Respondent.

On Writ of Certiorari to the California Supreme Court

PETITION FOR WRIT OF CERTICRARI

EVELLE J. YOUNGER,

Attorney General,

JACK R. WINKLER,

Chief Assistant Attorney General—

Criminal Division,

S. CLARK MOORE,

Assistant Attorney General,

EDWARD T. FOGEL, JR.,

Deputy Attorney General,

GARY R. HAHN,

Deputy Attorney General,

800 Tishman Building,

3580 Wilshire Boulevard,

Los Angeles, Calif. 90010,

Attorneys for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

Opinions Below ............. RAL A eR TTT AN PRO l

REE SW a a a 2

Question Presented ....2..................ccccccecccceccceecceeeeee 2

Constitutional Provisions Involved .......................... 2

Statement of the Case 2.0.02... eececeecceeeeceeeecceeeeee 2

Statement Of Facts ................:-.-ceciccecccoceccsccecscoseeceee 3

Reasons Why a Writ of Certiorari Should Be

I il De 12

This Case Presents the Unresolved and Important

Question of Whether There Are Circumstances

Under Which a Police Officer May Transport

a Suspect, Without Probable Cause to Arrest

, the Suspect, to the Scene of the Crime for Pos-

sible Indentification as Part of a Valid Inves-

tigatory Detention Within the Fourth Amend-

TUE coviusincdnntnsnbuncdinncenidiindiitmsibniiniihsialiainediennanenedaes 12

at LT 18

Appendix A. Opinion of the Supreme Court of

the State of California ..............0..0000....... App. p. 1

Appendix B. Opinion of the Court of Appeal .... 13

TABLE OF AUTHORITIES CITED

Cases Page

Adams v. Williams, 407 U.S. 143 000 17

Bates v. United States, 405 F.2d 1104 18

Davis v. Mississippi, 394 U.S. 721 20. 14

Gilbert v. California, 388 U.S. 263 2

Morales v. New York, 396 U.S. 102 14

Parker v. Gladden, 385 U.S. 363 0 ti

People v. Courtney, 11 Cal. App. 3d 1185 _........ 18

People v. Norman, 14 Cal. 3d 929, 538 P.2d 237 . 13

Sibron v. New York, 392 U.S. 40... icimabancaiibes 15

a Ue 8 a ee 14, 15

United States v. Brignoni-Ponce, ... U.S. .., 95

ee ae een FAN GEREA NS hae od 13

United States v. Dionisio, 410 U.S. 1 14

Constitutions

California Constitution, Art. I, Sec. 13 0 13

United States Constitution, Amendment IV ___.

wccvecelg. Be Bae Oa» 88. 96 87

Statutes

California Penal Code, Sec. 459 3

California Penal Code, Sec. 1538.5 Stina 3

United States Code, Title 28, Sec. 1257(3) eg

IN THE

Supreme Court of the United States

October Term, 1975

I la

STATE OF CALIFORNIA,

Petitioner,

VS.

MARK LEE Harris,

Respondent.

On Writ of Certiorari to the California Supreme Court

PETITION FOR WRIT OF CERTIORARI

The petitioner State of California respectfully prays

that a writ of certiorari issue to review the judgment

and opinion of the California Supreme Court entered

on October 7, 1975, in this appeal from the respond-

ent’s conviction.

Opinions Below

The opinion of the California Supreme Court, revers-

ing the judgment of conviction, is reported at 15

Cal. 3d 384, 124 Cal. Rptr. 536, 540 P. 2d 632

(1975). A copy of the California Supreme Court's

opinion appears as Appendix A to this petition. The

opinion of the California Court of Appeal for the

Second Appellate District, Division Five, reported and

then vacated, which reversed the judgment of convic-

tion, appears as Appendix B to this petition.

— a %

Jurisdiction

The judgment of the Calfornia Supreme Court was

filed on October 7, 1975. This petition for a writ

of certiorari is filed within 90 days of that date and

is therefore timely filed. This Court’s jurisdiction is

invoked under 28 U.S.C. section 1257(3). See, e.g.,

Gilbert v. California, 388 U.S. 263, 265 (1967): Parker

v. Gladden, 385 U.S. 363, 364 (1966).

Question Presented

Whether a police officer who has reasonable cause

to believe that a suspect has committed a crime, does

not have adequate probable cause to arrest. but knows

that an eyewitness is only a short distance away at

the scene of the crime, may transport that suspect

to the scene of the crime for possible identification

as part of a valid investigatory detention as is allowed

by the Fourth Amendment?

Constitutional Provisions Involved

United States Constitution, Amendment IV, in rele-

vant part:

“The right of the people io be secure in their

persons, houses, papers, and effects, age-ast unrea-

sonable searches and seizures, shall not be violated.

”

Statement of the Case

Petitioner State of California seeks a writ of certiorari

to have this Court review the decision of the California

Supreme Court reversing the trial court's judgment

of conviction. This case invelves an issue of first impres-

sion as to the propriety of prearrest in-the-field transpor-

tation of suspects.

wiles

Respondent Mark Lee Harris was convicted in Los

Angeles County Superior Court of burglary in the

first degree, in violation of California Penal Code

section 459. He was placed on probation for five

years and was required to serve time in the Los Angeles

County Jail as a condition thereof.

In a published opinion filed on December 22, 1974,

the California Court of Appeal, Second Appellate Dis-

trict, Division Five, reversed the conviction based upon

the Fourth Amendment on the ground that any prear-

rest transportation is invalid because it constitutes an

arrest of the suspect and therefore cannot be carried

out without probable cause. (Appendix B.) A petition

for hearing in the California Supreme Court was filed

by petitioner State of California and was granted

on February 6, 1975. In a published opinion filed

on October 7, 1975, the California Supreme Court

reversed respondent's conviction in the trial court upon

the ground that because of the transportation of the

Suspect, the continuation of the prearrest detention

occurred in violation of the Fourth Amendment. (Ap-

pendix A.)

Statement of Facts'

Joseph Marx and his wife lived at 449 South McCad-

den Place in Los Angeles, a two-story residence. On

November 4, 1972, at about 7 p.m., Mr. and Mrs.

Marx left their residence. At this time all the doors

were locked, including the front door which was double-

locked; and the windows were bolted. [CT 6, 13.]

‘Since the issue raised in this petition involves rulings made

by the trial court as a result of respondent's motion to suppress,

only the facts brought out at the hearing pursuant to California

Penal Code section 1538.5 will be set forth.

a

At about 10:15 p.m., Mr. and Mrs. Marx returned.

They started for the front door in order to unlock

it and go in. After they went about four paces from

the front door, they heard a noise inside. Knowing

that no one should be in their house, since they lived

alone, they got back into their car and backed out

of the driveway. [CT 6-7. |

Mr. Marx drove into his neighbor's driveway and

then went there and rang the doorbell. His neighbor

did not answer, and Mr. Marx returned to his car.

While in the next driveway, Mr. Marx observed a

car drive up in front of his house. The occupant

of that car got out and wiped his front and back

windows. Mr. Marx backed out his car. pulled up

right in back of the other man’s car and took down

the license number. Mrs. Marx also put down the

license number on a card twice. When Mr. Marx

had taken down the license number, the other man

“took off.” |CT 7, 9.}

Mr. Marx then went to another neighbor's driveway.

He found a little girl in that neighbor's house and

had her call the police and tell them that there was

a prowler in the Marxes’ home. Mr. Marx then stood

in front of his residence next to his car. |CT 7.]

Within 10 minutes the police arrived, and it was

about 10:30 p.m. Then Mr. and Mrs. Marx gave

the police a physical description of the person they

had seen. This person was described as wearing dark

trousers and a sweater. He also had a moustache.

Mr. Marx guessed the man to be about 35 years

old and to be Mexican. |CT 7, 11-12, 14.|

Robert Ryan and John Snee, police officers for

the City of Los Angeles, assigned to Wilshire Patrol,

collie,

were partners on the evening of November 4, 1972.

They received a radio call that “459” (burglary) sus-

pects were at 449 South McCadden. They then respond-

ed by going to that location. [CT 15-16; RT 14.]

Upon arrival at that location, the two officers were

met by an additional unit over which Officer Rada

was in charge. He advised Officer Ryan that a suspect

had been seen at the residence and a second suspect

was possibly inside. The house was searched, but no

suspect was found inside. |RT 15. |

Officer Rada informed Officer Ryan that he was ad-

vised by one of the victims that a suspect had been

seen upon their arrival home. The suspect was described

as a male Caucasian with dark hair, who had a mous-

tache, was approximately 5 feet 8 inches tall, weighed

approximately 150 pounds, and was wearing a light

cardigan sweater and dark pants. Officer Rada also

advised Officer Ryan that upon his arrival, he had

heard dogs barking north of the location where the

burglary had occurred and that he surmised that the

dogs were barking at somewhat of a succession north-

bound, and that possibly the suspect was heading in

that direction at the rear of the houses. [RT 15. ]

Officers Ryan and Snee proceeded northbound to

search. As they were leaving from 449 South McCad-

den, they received an arrest report over the radio.

The suspect was described as a male Caucasian, approxi-

mately 5 fect 5 inches tall, with a slight build, and

dark complected. It was also stated that the individual

was wearing dark pants and a light sweater and had

a moustache. |CT 17, 29; RT 16.|

The officers proceeded northbound on Highland and

arrived at Third Street, which is one block west and

—

two blocks north of the McCadden residence. That

area is solely a residential area, and the officers observed

two male Caucasians, who were later identified as

respondent and Paul Steinberg,’ walking westbound

on Third Street away from McCadden Place. |CT

18, 32, RT 17-18.]

Both men had moustaches, were 5 feet 7 inches

to 5 feet 9 inches tall, and were of a light build.

Resporuent was wearing a gray Cardigan sweater and

dark clothing which was possibly the same clothing

worn by the burglary suspect, according to the descrip-

tion of the burglary suspect given over the radio. After

Seeing these persons, Officer Snee made a left-hand

turn at Third going westbound and pulled into the

second driveway from Highland. The officers stopped

respondent and Steinberg because respondent was close

enough in height and weight to detain him. [CT 18-

19; RT 17-18.]

The officers then conducted a field interview request-

ing identification and the whereabouts of the suspects

that evening. Officer Snee spoke with Steinberg while

Officer Ryan spoke with respondent. Officer Snee asked

Steinberg his name, where he was going, and where

he had been. Steinberg gave identification and said

that he was in the area to get something to eat

and also said that he had come into the area by

a bus from Wilshire Boulevard.’ Officer Snee noticed

that Steinberg seemed quite nervous at that time. had

slight perspiration over his forehead, and did not want

to stand still. |CT 20-21; RT 19. }

“Steinberg was originally named as a co-defendant with re-

spondent, however, the magistrate at the preliminary hearing

did not find sufficient cause to order Steinberg to stand trial.

“The statements of Steinberg were received for probable

cause only. [CT 21.]

~~

Officer Ryan asked respondent why he was in the

neighborhood. Respondent said that he was there look-

ing for a restaurant. Respondent also said that he

had taken the bus to Highland and Wilshire Boulevard

and that he had been walking from that location.

Officer Ryan knew that at that location there was

a Bob’s Restaurant on Citrus and Wilshire Boulevard,

approximately 300 feet west of the Highland inter-

section. [CT 19-20. ]

Officer Ryan then interviewed Steinberg. Steinberg

told Ryan that he and respondent were in the area

looking for a young lady who lived on McCadden

Place. Officer Snee was at this point talking to re-

spondent and asked who respondent was, where he

was going, and the name of the individual he was

with. Respondent told Officer Snee who the other

individual was.‘ [CT 21-22; RT 22.]

At this time respondent and Steinberg were put

in custody, although not under arrest. The officers

did so because of the suspicious circumstances. There

was a restaurant at the location where respondent

said he got off the bus, and Steinberg did not know

the last name and address of a girl he said that

he was looking for at 1! p.m. in a residential area.

Both men also appeared to be scared. [CT 22; RT

22, 32.|]

Officer Ryan knew that Officer Rada had said that

the victims or one of them had seen one suspect.

Therefore, the two detained suspects were brought

back to the McCadden location for a possible identifica-

tion. Even though they were not under arrest, the

"Respondent's statement was received for probable cause

only. (CT 21.]

—_

Suspects were handcuffed. This action was taken in

accord with departmental policy that any felony suspect

who enters a police car or any person who could

possibly endanger the officer's safety is to be handcuffed

when placed in the police vehicle. [RT 22-23, 37; CT

22, 34. |

Kent Setty, a sergeant assigned to Wilshire Division,

Uniformed Patrol, p.m. shift, had occasion to respond

to the “459” (burglary) call at 339 South McCadden

as ficld supervisor on November 4, 1972. Upon his

arrival, he observed officers deployed in the location,

a single family residence, two-story, and mid-block

on the west side of the street. He was informed by

officers that the victims, residents of the house, be-

lieved that there had- been an intruder-burglar inside

the house. | RT 38-39. |

With other officers, Sergeant Setty made a room-

to-room search of the residence. Although no one

was inside, there was evidence of a burglary. Officers

Rada and Dunn determined a point of entry which

Sergeant Setty went to observe. At the rear of the

house, which is on the west side, there was a service

porch area with a high window. There was a teacart

with an open window above it. There was also a

footprint on the dust on the top shelf of the teacart.

| RT 39-40. |

Sergeant Setty inspected that particular footprint.

It was of a ripple-soled shoe, and he could see that

there was wording in the print. By lying down on

the teacart’s lower shelf, looking up and inspecting

|

—

with an oblique light, Sergeant Setty could read the

words “Neoprine” and “Oil Resistant” in the print on

the glass. |RT 41.]

About five minutes later, Sergeant Setty became

aware that Officers Ryan and Snee had, some suspects

in custody. Sergeant Setty, who was the. immediate

supervisor, went out to meet them. Officers Snee and

Ryan told Sergeant Setty that they had observed the

Suspects in the area of Third and Highland and that

they generally fit the description of the person seen

as to clothing, hair, facial hair, height, and weight.

They also told Sergeant Setty that both respondent

and Steinberg had been breathing rapidly and that

respondent’s heart was beating rapidly. Sergeant Setty

also observed that the two suspects were only being

detained for investigation at the time. [RT 41, 44;

CT 23.]

The suspects were asked to step out of the police

vehicle. Sergeant Setty admonished both that they were

in the custody of the police but that that did not

mean they were guilty and that the officers wanted

to exclude or include them as suspects. Sergeant Setty

had respondent and Steinberg stand in similar light

about 25 feet from Mr. and Mis. Marx so that the

Marxes could view them. However, neither Mr. nor

Mrs. Marx could make a positive identification. [RT

41; CT 23, 33.]

Sergeant Setty then looked at both suspects’ shoes

as they stood on the ground. He noticed that respond-

ent’s shoe [People’s Exh. 1; CT 25, 45] was a ripple-

cxofiiive

soled shoe, which was at least similar in appearance

to the one which had left its print in the dust. Sergeant

Setty had the shoe taken off respondent and personally

took the shoe to the teacart. He visually compared

the shoe and the print at a close distance. He noted

that the two looked similar. On the underside of

respondent's shoe, Sergeant Setty observed that the

word “Neoprine” was on the instep area and the

words “Oil Resistant” were on the toe area. Sergeant

Setty took the shoe back out. He advised the officers

to take both respondent and Steinberg back to Wilshire

detectives and indicated that ‘the shoes were to be

booked as evidence. Respondent and Steinberg were

then placed under arrest. [RT 42; CT 24-25. |

Mr. and Mrs. Marx were allowed to go into their

house. Apparently the burglar or burglars had had

time to take only some change, and a folded $10

bill and $1 silver certificate that had been lying in

a drawer. |CT 8, 27.|

Mr. Marx observed that the French doors in the

den had had a flower pot thrown through two windows,

one to open the lock and the other to pull the bolt.

There was glass all over the floor. The back porch

window had been jimmied open, and the serving table

had been pushed up against it so that a person could

climb in that window. This serving cart was iron,

about 18 by 36 inches, with a glass top on it and

wheels to roll it. It had been in the patio before

Mr. and Mrs. Marx had left at 7 p.m., which is

Where #it usually sat. Mr. Marx also observed the

—_)

footprints on the glass which were not there when

the Marxes had left at approximately 7 p.m. [CT

9-10. |

At the police station, a booking search was made

of respondent and Steinberg. From Steinberg’s wallet

a $10 bill was removed, and from respondent's wallet

a $1 bill was removed. There was other currency

in each of their wallets, but these bills were folded

Separately and were apart from the rest. The $1 bill

was unusual because it was a silver certificate, and

both bills were also of early printing. In addition,

respondent and Steinberg had miscellaneous change.

|CT 26-27. |

Richard Bingle, a criminolist employed by the City

of Los Angeles for the Los Angeles Police Department

and assigned as officer-in-charge of the comparative

analysis unit, received the pair of shoes [People’s

Exh. i] and the glass table top, on top of which

were several imprints, Through the use of exemplars

made from photographs |People’s Exhs. 2A, 2B; CT

40, 45| and an overlay made from a film transparency

| People’s Exh. 2C; CT 41- 45], he formed the opinion

that the imprint on the table was made by the tip

of the right shoe |People’s Exh. 1] that he had

received. [CT 39-41. ]

—

REASONS WHY A WRIT OF CERTIORARI

SHOULD BE GRANTED

This Case Presents the Unresolved and Important Ques-

tion of Whether There Are Circumstances Under

Which a Police Officer May Transport a Suspect,

Without Probable Cause to Arrest the Suspect, to

the Scene of the Crime for Possible Identification

as Part of a Valid Investigatory Detention Within

the Fourth Amendment

The trial court in the instant case determined that

the transportation of respondent back to the scene

of the crime for possible eyewitness identification was

a reasonable procedure and was part of a valid investi-

gatory detention under the totality of the circumstances.

[RT 54-55.| The California Court of Appeal, Second

Appellate District, Division Five, reversed the trial

court on the ground that there can never be a transporta-

tion of a prearrest suspect anywhere for any reason

when the officers have less than probable cause to

arrest. The sole basis for this decision was that court’s

interpretation of the Fourth Amendment. ( Appendix

B, pp. 18-19.)

The California Supreme Court, after vacating the

Court of Appeal’s decision, again reversed the convic-

tion of respondent upon the ground that there was

an improper transportation of a prearrest suspect. Again,

the sole basis for this decision was a balancing of

x . the individual’s right of liberty and personal

freedom, sanctified by the Fourth Amendment, on the

one hand, and society’s continuing needs to protect

itself and its citizens from criminal marauders on the

other.” (Appendix A, p. 6)° Petitioner agrees that

“It should be noted that state constitutional provisions were

not mentioned or referred to as a basis for the California

=

this should be the proper test for measuring police

conduct against the Fourth Amendment and that this

Court has applied the test enumerated by the California

Supreme Court in prearrest detentions. United States

v. Brignoni-Ponce, ........ 5 See » 95 S. Ct. 2574,

2578-79 (1975). Petitioner respectfully submits, how-

ever, that in light of the facts of the instant case,

the decision of the California Supreme Court was er-

roneous in that rather than applying such a balancing

test in order to determine if the transportation of

respondent was reasonable in light of the circumstances

of the instant case the California Supreme Court ruled

that transportation of a prearrest suspect is generally

invalid as an alternative action to police officers during

a valid detention no matter what the surrounding cir-

cumstances might be.° This Court, therefore, should

specify exactly what is permissible under the Fourth

Amendment with regard to transportation of prearrest

Suspects as part of a valid investigatory detention.

This Court, although never squarely ruling upon

the issue of the permissibility of the transportation

Supreme Court's decision. Only the Fourth Amendment was

utilized and interpreted. It should also be noted that in People

v. Norman, i4 Cal. 3d 929, 940, 123 Cal. Rptr. 109, 117,

538 P. 2d 237, 245 (1975), in a concurring opinion, Justice

Richardson stated that the reasonableness standard of Article

I, section 13, of the California Constitution was the same

as that in the Fourth Amendment and that decisions as to

that standard by the United States Supreme Court should be

followed. Justice Richardson authored the majority opinion in

the instant case. No separate concurring opinions were filed.

*The California Supreme Court did apparently indicate that

in the case of an incapacitated or injured victim, such a

prearrest transportation would be valid. However, petitioner

submits that the Fourth Amendment does not so restrict police

action to specific situations, but rather should ailow prearrest

transportation when the circumstances indicate that such action

is reasonable. The reasonableness of such action, of course,

could only be able to be determined upon a case-by-case

basis.

=

of suspects being detained upon less than probable

cause to arrest, has noted the importance of this issue.

In Davis v. Mississippi, 394 U.S. 721 (1969), this

Court referred to investigatory detentions with regard

to fingerprinting and acknowledged that there might

be permissible, narrowly circumscribed procedures for

obtaining the fingerprints of a Suspect during the course

of an investigation even though there was no probable

cause to arrest. /d. at 728. However, the Court specif-

ically did not reach this issue because the defendant

in that case had been invalidly detained when first

confronted by the police. Jd. at 726-27. See also United

States v. Dionisio, 410 U.S. 1, 11 (1973). It should

further be noted that the importance of the issue of

investigatory techniques during detention, beyond the

normal field interrogation, was pointed out in Justice

Black’s dissent in Davis when he stated, “I think it

is high time this Court, in the interest of the adminis-

tration of criminal justice, made a new appraisal of

the language and history of the Fourth Amendment

and cut it down to its intended size.” Davis v. Missis-

sippi, supra at 729-30.

In Morales v. New York, 396 U.S. 102 (1969),

this Court again was unable to decide a similar issue—

that of the transportation for custodial questioning

of a suspect upon less than probable cause—because

the record did not permit satisfactory evaluation of

the facts surrounding the apprehension and detention

of the defendant and therefore the case was remanded

so that an evidentiary hearing could be held in order

to establish such facts. Jd. at 105-06. The importance

of the prearrest transportation issue, however. was again

noted by this Court when it stated that such an issue

involved a ruling beyond those decisions made in Terry

— =

v. Ohio, 392 U.S. 1 (1968), and Sibron v. New

York, 392 U.S. 40 (1968). Id. at 104-05.

Petitioner asks this Court to grant certiorari in order

to answer the question of whether it is reasonable,

within the definition of the Fourth Amendment, to

transport a suspect to the scene of the crime for

possible eyewitness identification as part of a valid

investigatory detention when certain specific articulable

facts are known to the police officer. Petitioner sub-

mits that unlike the previously cited cases, the instant

case’s record properly presents this issue before this

Court.

Petitioner further urges this Court to uphold the

procedures utilized by the police in the instant case

and to establish a holding aliowing such prearrest trans-

portations. The Constitution does not forbid all searches

and seizures but only unreasonable searches and seiz-

ures, and the issue should be whether in light of

all the circumstances of the police-suspect encounter,

the suspect’s right to personal security was violated

by an unreasonable search and seizure. Terry v. Ohio,

supra, 392 U.S. at 9. The exclusionary rule should

not be invoked based solely upon whether legitimate

police investigative techniques are similar to conduct

which involves unwarranted intrusions upon constitu-

tional protections, but rather the rule should be in-

voked only after a case-by-case examination since “street

encounters between citizens and police officers are in-

credibly rich in diversity.” Terry v. Ohio, supra at

13.

In the instant case the California Supreme Court

acknowledged that the initial detention of respondent

was valid and was the result of a reasonable investi-

gative procedure. (Appendix A, p. 4.) In addi-

—_—)

tion, the field interview was found to have yielded

a “deepening” suspicion that respondent had been in-

volved in the burglary due to implausible and contra-

dictory explanations and an over-all nervous appearance.

(Appendix A, p. 5-6.)

It was at this point that the officers transported

respondent to the scene of the crime for possible eye-

witness identification. Said transportation was based

upon the specific articulable facts known to the officers

that eyewitnesses were present at the crime scene,

the scene was a short distance (3 blocks) away, and

the crime had recently occurred (approximately 45

minutes earlier). The entire purpose of the transporta-

tion was to avoid prolonging the detention’ by either

releasing an innocent man or making an arrest based

upon adequate cause.

Clearly, such a procedure was and is reasonable

within the definition of that term for Fourth Amend-

ment purposes. There was potential benefit to both

respondent and the police in the form of determining

whether the investigation of respondent was only a

fruitless effort, causing a cloud of needless suspicion

to remain over respondent, or whether in fact. the

police had had the good fortune to successfully termi-

nate an investigation early.

The majority of the California Supreme Court ap-

parently holds that since other alternatives existed be-

sides transportation, that transportation of the suspects

to the scene of the crime became unreasonable under

‘Of course, as the California Supreme Court notes, there

was reason for prolonging the detention since further circum-

stances, although not providing probable cause to arrest, had

been developed to lead to a reasonable belief that respondent

was involved in the burglary. (Appendix A, pp. 5-6.)

anlfen

the Fourth Amendment. Petitioner respectfully disagrees

and instead asserts that the reasoning of Justice

Clark, writing for the dissent, should be applied.

“It is doubtful whether defendant—reasonably

Suspected of committing a felony and of then

lying to the police about his involvement—could

reasonably have been expected to honor a mere

promise to appear for a subsequent confrontation

with his victims.

“On the other hand, immediate confrontation

at the crime scene had the following advantages:

The victims’ memories were fresh. The condition

of initial observation could be reproduced. De-

fendant and his companion had not had time

to intimidate their victims. Further, defendant had

not had time to shave off his moustache or to

change his light cardigan sweater and dark trous-

ers Or, more importartly, his distinctive ripple-

soled shoes. Finally, had he been innocent, his

innocence could have been established immediately.

“The majority’s other alternative—making the

victims come to defendant—is unacceptable. The

victim’s rights should be valued at least as highly

as a suspected felon’s.” (Appendix A, dissenting

opinion, pp 11-12.) (Footnote omitted. )

“The Fourth Amendment does not require a police-

man who lacks the precise level of information neces-

sary for probable cause to arrest to simply shrug his

shoulders and allow a crime to occur or a criminal

to escape. . . .” Adams v. Williams, 407 U.S. 143,

145 (1972). The officers in the instant case did not

“shrug their shoulders,” but rather utilized the most

reasonable and prudent means available under the cir-

I ——isi—‘(CSsC—tsS

= =

cumstances in order to resolve their justifiable and

increasing suspicions of respondent while also guaran-

teeing at the same time that respondent might be

able to have the cloud of suspicion removed as to

himself. See Bates v. United States, 405 F. 2d 1104,

1106 (D.C. Cir. 1968). An otherwise permissible deten-

tion should not be restricted to the precise point of

accostation when such specific articulable facts are

present as were known by the officers in the instant

case. People v. Courtney, 11 Cal. App. 3d 1185,

1191, 90 Cal. Rptr. 370, 374 (1970).

cae APPENDIX

For the foregoing reasons, petitioner respectfully re-

quests that this petition for a writ of certiorari be

granted.

Respectfully submitted,

EVELLE J. YOUNGER,

Attorney General,

JacK R. WINKLER,

Chief Assistant Attorney General—

Criminal Division,

S. CLARK Moore,

Assistant Attorney General,

EDWARD T. FoGeL, Jr.,

Deputy Attorney General,

Gary R. Haun,

Deputy Attorney General,

Attorneys for Petitioner.

APPENDIX A.

Opinion of the Supreme Court of the

State of California.

In the Supreme Court of the State of California,

In Bank.

The People, Plaintiff and Respondent, vs. Mark Lee

Harris, Defendant and Appellant. Crim. 18430 (Super.

Ct. No. A290594).

Filed: October 7, 1975.

Defendant was charged with burglary (Pen. Code,

§ 459). His motion to suppress evidence (Pen. Code,

§ 1538.5) was denied. After a jury trial, he was

found guilty of first degree burglary and placed on

probation. He appeals from the judgment of conviction,

asserting that the motion to suppress should have

been granted. We have concluded that the motion

was improperly denied and that the judgment must

be reversed.

The victims, Mr. and Mrs. Marx, were the sole

occupants of a residence at 449 South McCadden

Place, Los Angeles. They left their home one Saturday

evening at 7 p.m. and returned about 10:15 p.m.

Mr. Marx parked their car in the driveway and, as

they approached the front door of the residence, they

heard a noise which indicated to them that someone

was inside. The Marxes returned to their car and

drove to a neighbor’s home to call the police. Finding

no one at home, the Marxes then drove to another

nearby residence and asked the occupant to summon

the police. While there, they observed a car Stop in

front of their home. The driver Stepped out of the

vehicle and wiped its front and rear windows. Mr.

—_— ——— —

|

an

Marx, believing that such activity was unusual and

that there might be a connection between the driver

and the person suspected of being inside his home,

backed his car out of the neighbor's driveway and

drove up behind the unknown car. Mrs. Marx copied

the license number of that car. The other driver then

drove way.

The police arrived at the Marx Home at approxi-

mately 10:30 p.m. The Marxes gave the officers the

license number of the car they had observed and the

following description of the person they had seen in

front of their home: male Caucasian, dark hair, mous-

tache, about 5’8” tall, about 150 pounds, wearing

a light cardigan sweater and dark trousers.

Among the arriving police were Officers Ryan and

Snee who were given by the officer in charge a descrip-

tion of the suspect who had been seen in front of

the residence. They also were told of the possibility

that a second suspect was inside the Marx residence.

The officer in charge further informed Ryan and Snee

that he had heard dogs barking in succession in a

northerly direction suggesting the possibility that some-

one was headed on that course.

Officers Ryan and Snee proceeded north on High-

land, a street which runs parallel to, and a block

west of, McCadden, and continued north two blocks

to the intersection of Highland and Third Street. The

area was residential. Shortly thereafter, at approximately

11 p.m., they observed defendant and a male companion

crossing Highland, westbound on Third Street, approxi-

mately three blocks from the Marx residence. The

physical appearance of defendant and his clothing ap-

proximated the description furnished to the officers.

= =

The suspects were stopped and interrogated sepa-

rately. Defendant stated that he was looked for a

girl named Donna who lived on McCadden Place.

His companion said they had taken a bus to Highland |

and Wilshire—several blocks south of Third—and had

been walking from the bus stop looking for a restaurant.

Officer Ryan knew that there was a restaurant at

Wilshire and Citrus, about 300 feet west of the bus

stop. Both defendant and his companion appeared ner-

vous.

The suspects were searched, handcuffed and placed

in the back of the police car. Without asking the

Suspects’ consent, Officers Ryan and Snee then drove

the suspects back to the Marx residence for possible

identification by the Marxes, who were unable, however,

to identify either suspect as the man they had observed

in front of their home that evening.

While Officers Ryan and Snee continued their inter-

rogation of the suspects, other officers discovered that

someone had apparently entered the house through

the service porch window by climbing on top of a

dusty teacart. A footprint of a ripple-soled shoe bearing

the words “Neoprine” and “Oil Resistant,” was observed

in the dust. Immediately after the Marxes failed to

identify either suspect as the man they had observed

in front of their home, a police sergeant noticed that

defendant’s shoe was ripple-soled. An officer removed

defendant's shoe, took it to the teacart, and visually

matched it with the shoeprint in the dust. Defendant

and his companion were then formally placed under

arrest.

Further police investigation revealed that the burglar

or burg!ars had removed some change from a “piggy”

bank in the Marx residence, as well as a folded $10

—4—

bill and a $1 silver certificate, both of which had

been deposited before the burglary in Mrs. Marx’ jewel-

ry box. An inventory search conducted incident to

the suspects’ booking subsequently disclosed a $1 silver

certificate in defendant's wallet and a folded $10 bill

in his companion’s wallet.

Defendant, contending that his detention and subse-

quent conveyance to the Marx residence were unlawful,

moved to suppress the currency together with evidence

of the matching shoeprint. The motion was denied

and the evidence (shoeprint and paper currency) intro-

duced at trial formed the major basis for defendant’s

conviction.

1. The detention.

Although defendant contends otherwise, the officers

had sufficient cause to detain defendant for initial

questioning. It is well established that a temporary

detention may be justified by circumstances falling

short of probable cause to arrest a suspect. (People

v. Mickelson (1963) 59 Cal.2d 448, 450.) In amplifi-

cation of this principle we recently explained, “fa]

police officer may stop and question persons on public

Streets, . . . when the circumstances indicate to a

reasonable man in a like position that such a course

of action is called for in the proper discharge of

the officer’s duties. [Citations.| The good faith suspi-

cion which warrants an officer’s detention of a person

for investigative reasons is necessarily of a lesser stand-

ard than that required to effect an arrest. [Citation. ]

Where there is a rational belief of criminal activity

with which the suspect is connected, a detention for

reasonable investigative procedures infringes no consti-

tutional restraint. [Citation.|” (People v. Flores (1974)

_—

12 Cal.3d 85, 91; see People v. Gale (1973) 9 Cal.3d

788, 797-798; Irwin v. Superior Court (1969) 1 Cal.3d

423, 426-427.)

The foregoing standard for detention is of lesser

degree than that applicable to an arrest. Cause for

arrest exists when the facts known to the arresting

officer “would lead a man of ordinary care and prudence

to believe and conscientiously entertain an honest and

strong suspicion that the person is guilty of a crime.”

(People v. Terry (1970) 2 Cal.3d 362, 393: People

v. Ross (1967) 67 Cal.2d 64, 69-70: People v. Ingle

(1960) 53 Cal.2d 407, 412.) The People concede

that the circumstances were insufficient to furnish rea-

sonable cause to arrest the suspects. However, in

the instant case, the circumstances did disclose a reason-

able possibility that defendant and his companion were

involved in the burglary. These circumstances included

their presence in a residential area at 11 p.m., and

the general similarity between defendant's appearance

and Marx’ description of one of the Suspects, thus

meeting the requisite but lesser detention standards of

“good faith suspicion,” and “rational belief of criminal

activity” expressed by us in Flores. The initial detention

and questioning were entirely proper. (See People v.

Watson (1970) 12 Cal.App.3d 130, 134-135.)

2. The transportation.

The principal difficulty in the matter before us arises

from the police conduct following the detention when

circumstances known to the police placed the case

in that gray area in which the facts justify measures

beyond detention but short of arrest. As we have

noted, after questioning defendant and his companion

the officers were presented with additional facts pointing

—

to the suspects’ possible involvement in the burglary,

namely, their somewhat contradictory explanations re-

garding their presence in the neighborhood, and their

nervous appearance. At that time the investigation im-

perceptibly entered a new stage. Suspicion was deep-

ening. The officers fairly entertained growing doubts

as to the veracity of defendant and his companion.

The People urge that, at this point, despite the continued

lack of reasonable cause to arrest the suspects, the

officers properly could transport them to the scene

of the crime for possible identification by the Marxes.

The propriety of such an in-the-field transportation

of suspects prior to arrest poses the principle issue

in the case. Here lies the pressure point between the

individual’s right of liberty and personal freedom, sancti-

fied by the Fourth Amendment, on the one hand,

and society’s continuing needs to protect itself and

its citizens from criminal marauders on the other. Ac-

commodation of both of these considerations requires,

on occasion, a balancing in its most sensitive form.

A detention of an individual which is reasonable

at its inception may exceed constitutional bounds when

extended beyond what is reasonably necessary under

the circumstances. (See Willett v. Superior Court

(1969) 2 Cal.App.3d 555, 559; Pendergraft v. Superior

Court (1971) 15 Cal.App.3d 237, 242; People -v.

Rosenfeld (1971) 16 Cal.App.3d 619, 622-623: cf.

People v. Gale, supra, 9 Cal.3d 788, 798-799.) In

Pendergraft, a case involving an unduly prolonged de-

tention, the court properly observed that “[n]o hard

and fast rule can be formulated for determining the

reasonableness of the period of time clapsing during

a detention. The dynamics of the detention-for-ques-

tioning situation may justify further detention, further

= =

investigation, search, or arrest. The significance of the

events, discoveries, and perceptions that follow an of-

ficer’s first sighting of a candidate for detention will

vary from case to case.” (Fns. omitted; 15 Cal.App.3d

at p. 242.)

As a general proposition, despite defendant’s urging,

we are disinclined to hold that under no circumstances

short of probable cause to arrest may an officer trans-

port a suspect to another location for further inter-

rogation or possible identification. Although one court

has suggested that such a procedure is unreasonable

and amounts to an arrest without probable cause (Peo-

ple v. Gonsoulin (1971) 19 Cal.App.3d 270, 275),

other courts recognize that certain circumstances may

justify a “transport” detention somewhat similar to

that involved herein (People v. Courtney (1970) 11

Cal.App.3d 1185, 1191-1192). For example, in Court-

ney, the investigating officer adjourned his interrogation

of the suspect when a crowd of potentially hostile

students gathered at the detention scene. He transported

the suspect to a campus police department and resumed

the interrogation there. The court held that “there

was no Fourth Amendment compulsion on the police

to choose between an on-the-spot continuation of their

investigation at the probable cost of their own safety,

or abandoning the investigation, . . . We recognize

that it is only in a rare case where, absent probable

cause for arrest, the removal of a suspect to a police

station for further investigation is constitutionally per-

missible.” (11 Cal.App.3d at p. 1192.)

We can conceive of factual situations in which it

might be quite reasonable to transport a suspect to

the crime scene for possible identification. If, for exam-

ple, the victim of an assault or other serious offense

i

was injured or otherwise physically unable to be taken

promptly to view the suspect, or a witness was similarly

incapacitated, and the circumstances warranted a rea-

sonable suspicion that the suspect was indeed the of-

fender, a “transport” detention might well be upheld.

Similarly, the surrounding circumstances may reasonably

indicate that it would be less of an intrusion upon

the suspect’s rights to convey him speedily a few blocks

to the crime scene, permitting the suspect’s early release

rather than prolonging unduly the field detention.

Ordinarily there exist less intrusive and more reason-

able alternatives to pre-arrest transportation. The offi-

cers may call or escort the witness to the detention

scene for an immediate viewing of the suspect, or

if they are able to procure satisfactory identification

from the suspect, arrangements may be made for a

subsequent confrontation with the witness. In addition,

the consent of the suspect may be sought. As we

suggested in People v. Mickelson, supra, 59 Cal.2d

448, 454, rather than conduct an illegal car search

the officers could have requested defendant “to accom-

pany the officers the few blocks to the [crime scene]

. . . for possible identification . . . .” (See also People

v. Hanamoto (1965) 234 Cal.App.2d 6, 13-15; People

v. Gibson (1963) 220 Cal.App.2d 15, 24.)

In the instant case, the officers pursued none of

these alternative procedures, Instead, they handcuffed

the suspects and conveyed them to the Marx home.

Without arrest and in the absence of any exigency,

the initial detention was continued by means of transpor-

—_—

tation followed by further interrogation. Under the

facts of this case the officers’ procedures violated de-

fendant’s constitutional rights. The applicable principles

have been well expressed in a recent text on the

subject of arrests: “Decisions made at different stages

in the criminal justice process vary in their effect

upon the person being dealt with. Generally, it can

be said that decisions carrying more serious conse-

quences for the individual require a greater degree

of certainty that he is in fact guilty. This suggests

that the propriety of field interrogation where there

are insufficient grounds for arrest may depend upon

whether the harmful effects are substantially less than

those which result from a formal arrest.” (Fn. omitted;

LaFave, Arrest, The Decision to Take a Suspect into

Custody (1965) ch. 16 at p. 346; see also pp. 347-

349.) While in the instant case the detention procedure

employed by the officers was not necessarily “harmful”

to defendant in any permanent sense, the restraint

upon his personal freedom was measurably greater

than mere stationary field interrogation. We hold that

it was impermissibly so.

The police activity in the record reveals proper initial

detention, improper transportation, further interrogation

and inspection of defendant’s apparel. The sequence

was unfortunate because the continued police investi-

gation revealed circumstances that seemingly point un-

erringly to defendant’s complicity in the burglary. None-

theless, the identification of shoes and currency, so

incriminating to defendant, followed the transportation

_——

detention. It is a fundamental principle in our juris-

prudence that an illegal police procedure cannot be

justified by its fruits. (See People v. Fein (1971)

4 Cal.3d 747, 756 [illegal arrest |; Tompkins v. Superior

Court (1963) 59 Cal.2d 65, 68 [illegal search]. )

Defendant's motion to suppress evidence should have

been granted, for that evidence was the result of

an unlawful detention. (See Davis v. Mississippi (1969)

394 U.S. 721; People v. Moore (1968) 69 Cal.2d

674, 680; Pendergraft v. Superior Court, supra, 15

Cal.App.3d 237, 242-243; People v. Lingo (1970)

3 Cal.App.3d 661, 664-665.) Since the challenged

evidence formed the basis for defendant’s conviction,

the introduction of that evidence constituted reversible

error.

The judgment is reversed.

Richardson, J.

We concur:

Tobriner, J.

Mosk, J.

Sullivan, J.

—| =

DISSENTING OPINION BY CLARK, J.

I dissent.

Assuming arguendo that defendant would not have

consented to returning three blocks to the crime scene,

what alternatives do the majority offer? “The officers

may call or escort the witness to the detention scene

for an immediate viewing of the suspect, or if they

are able to procure satisfactory identification from

the suspect, arrangements may be made for a subsequent

confrontation with the witness.” (Ante, p. ......... *)

It is doubtful whether defendant—reasonably sus-

pected of committing a felony and of then lying to

the police about his involvement—could reasonably

have been expected to honor a mere promise to appear

for a subsequent confrontation with his victims.

On the other hand, immediate confrontation at the

crime scene had the following advantages: The victims’

memories were fresh. The conditions of initial obser-

vation could be reproduced. Defendant and his com-

panion had not had time to intimidate their victims.

Further, defendant had not had time to shave off

his moustache or to change his light cardigan sweater

and dark trousers or, more importantly, his distinctive

ripple-soled shoes. Finally, had he been innocent, his

innocence could have been established immediately.

The majority’s other alternative—making ihe viciins

come to defendant—is unacceptable. The victim's rights

*Majority opinion, page 8.

—12—

should be valued at least as highly as a suspected

felon’s.'

I would affirm the judgment.

Clark, J.

I concur:

McComb, J.

‘In addition it must be asked whether those infringements

upon the suspect’s freedom which the majority poses to

avoid will only be increased by such procedure. While victims

are being transported, considerations of convenience and safety

for the detaining officers will reasonably require the suspect

be placed in physical custody, either handcuffed in the back

of a police unit or held at the nearest police station. A

second available police unit must be located and dispatched

to the victim's residence, then returned to the suspect’s place

of detention. Thus, in terms of both manner and length of

detention, the degree to which the freedom of a suspect is

infringed will equal, if not exceed, that resulting from transport-

ing the suspect to the victim.

— A ee ee A ee ow

=—

APPENDIX B.

Opinion of the Court of Appeal.

In the Court of Appeal of the State of California,

Second Appellate District, Division Five.

The People of the State of California, Plaintiff and

Respondent, vs. Mark Lee Harris, Defendant and Appel-

lant. 2d Crim. No. 24550, (Sup. Crt. No. A-290594).

Filed: Dec. 12, 1974.

Defendant Mark Lee Harris was charged with bur-

glary. His motion to suppress evidence (Pen. Code,

§ 1538.5) was denied. After a jury trial, he was

found guilty of first-degree burglary, and placed on pro-

bation. On this appeal the only issue is whether a

motion to suppress should have been granted.’

FACTS

The victims, Mr. and Mrs. Marx, lived at 449

South McCadden Place, Los Angeles. They left their

house one Saturday evening at 7 p.m. and returned

at about 10:15 p.m. Marx parked their car in the

driveway. As they approached the front door they

heard a noise inside the house. Since the Marxes

lived alone, they got back in their car, backed out

of the driveway, and drove into a neighbor's house.

While their car was in the driveway, they saw a car

drive up in front of their house. The driver got

out and wiped his front and rear windows. Mr. Marx

backed out of the neighbor’s driveway, pulled in behind

the unknown car, and wrote down the license plate

number.

"By stipulation the motion was based on the transcript of

the preliminary hearing and additional testimony presented at

the hearing held pursuant to Penal Code section 1538.5.

alffiien

At this point, the other driver “took off.” The

police arrived at about 10:30 p.m. The Marxes gave

the police a description of the person they had seen

as well as the license plate number of his car.

Among the officers to arrive were Ryan and Snee.

The officer in charge told them that a suspect had

been seen at the residence, and that a second suspect

was possibly inside the house; but when it was searched

no suspect was found inside. The officer in charge

told Ryan and Snee that the victims had observed

a suspect, described as a male Caucasian, dark hair,

moustache, about 5’8” tall, about 150 pounds and

wearing a light cardigan sweater and dark pants.’

The officer in charge also told Ryan and Snee that

he had heard dogs barking north of the burglarized

house, and they were barking at somewhat of a succes-

sion northbound, as if the suspect were headed in

that direction.

Officers Ryan and Snee headed northbound on High-

land, a street that runs paraliel to and a block west

of McCadden. They drove two blocks north to Third

Street. The area is solely residential. It was about

11 p.m. They observed defendant and one Paul Stein-

berg’ crossing Highland, westbound on Third Street,

away from McCadden Place.

The physical description of defendant approximated

that furnished the officers. Defendant was wearing a

light cardigan sweater and dark clothing, possibly the

same clothing as the burglary suspect.

“Mr. Marx testified that the man he saw was wearing a

dark sweater and that he so described him to the police.

How it became a light cardigan is obscure.

‘The case against Steinberg was dismissed at the preliminary

hearing.

entities

Each suspect was interviewed separately. Defendant

said he was looking for a girl named Donna who

lived on McCadden place. Steinberg said they had

taken a bus to Highland and Wilshire—several blocks

south of Third—and had been walking from that loca-

tion, looking for a restaurant. Officer Ryan knew there

was a restaurant at Wilshire and Citrus, about 300

feet west of Highland. The suspects appeared nervous.

The officers were suspicious because of the conflicting

statements, the restaurant story, and the suspects’ ner-

vousness.

Deienidant and Steinberg were searched, handcuffed

and placed in the back of the police car.‘ They were

taken back to the Marx residence, for possible identi-

fication by the Marxes.

Neither Mr. nor Mrs. Marx could identify either

suspect. In fact, at the preliminary hearing Mr. Marx

positively testified that the man he had seen outside

his home was not in the courtroom.

Meantime, other officers investigating at the scene

had determined that someone had entered the house

through the service porch window by climbing on top

of a dusty teacart. A footprint of a ripple-soled shoe

was observed in the dust. The words “Neoprine” and

“Oil Resistant” were visible. A police sergeant looked

at Harris’ shoes and saw that they were ripple-soled,

similar in appearance to the shoe which had left its

print in the dust. A police officer removed defend-

ant’s shoe, took it to the teacart and visually matched

it up with the shoeprint in the dust.

‘Specifically, Harris’ shoes were removed by an officer at

Third and Highland to determine whether there was money

inside them. Officer Snee was unable to recall whether Harris

was permitted to put them back on before the group's arrival

at the Marx residence.

==

Defendant and his companion were then formally

placed under arrest.

The burglar or burglars had had time to take only

some change and a folded $10 bill and $1 silver

certificate that had been lying in a drawer.

The evidence at the trial on which defendant was

convicted was, first, testimony about the suspect’s and

defendant’s descriptions; second, that when arrcsted

a $10 bill was removed from Stcinberg’s wallet and

a $1 silver certificate from defendant’s wallet; and,

third, that defendant’s shoeprint matched the shoeprint

found on the teacart.

DISCUSSION |

We need not spend much time on defendant's con-

tention that the initial detention was illegal. The case

he cites, People v. Mickelson, 59 Cal.2d 448, 450-

451, and several hundred following, make clear that

the initial detention was reasonable. The problem is

what followed. It will be recalled that in Mickelson

the police had a report of a 2 a.m. market robbery.

The robber was identified as a fairly tall white man

of large build, with dark hair, wearing a red sweater

and armed with a .45 automatic. Shortly after starting

the search for the suspect, an officer saw a station

wagon which defendant’s companion, one Zauzig, was

driving and in which defendant was a passenger. Zauzig

appeared to be a large white man with dark hair,

wearing a red sweater or jacket. The station wagon

made several suspicious changes of direction and was

eventually stopped. It was then searched and the fruits

of the robbery were discovered. The occupants were

arrested. In suppressing the fruits of the search, the

A EE a Ee

==

court held that it was entirely reasonable to stop the

Station wagon for investigation and to take reasonable

precautions for the officer’s safety. He did not, however,

have probable cause to arrest Zauzig. “Instead of inter-

rogating Zauzig and defendant with respect to the

robbery or requesting them to accompany the officers

the few blocks to the market for possible identification,

the officer elected to rummage through closed baggage

found in the car in the hope of turning up evidence

that might connect Zauzig with the robbery.” (/d.

p. 454. Italics added. )

In Mickelson the Supreme Court did not say what,

if anything, the police could have done had Zauzig

and his companion declined the request to accompany

the officers back to the market for identification. In

this case the People want us to hold, in effect, that

such a request would have been nothing but an un-

necessary public relations gesture: for if anything is

clear from the record before us, it is that defendant

was compelled to accompany the officers back to the

Marx residence, after his person had been searched

with some thoroughness at the scene of his initial

confrontation with the police. During the trip back,

he was in handcuffs. Although the People have never

claimed that the officers had a right to arrest defendant,

that is precisely what they did.°

"In fact, in the trial court the People went out of their

way to prove that no arrest was made until defendant’s shoes

were compared with the imprint left by the burglar. When

one of the officers was asked whether defendant and his com-

panion were arrested at Third and Highland, he answered:

“We brought the individuals back to the location.” The other

officer, when asked: “Were they under arrest at that time?”

answered, “No. They were being detained.” He would not

even admit that the suspects were “in custody.”

(This footnote is continued on next page)

—1§—

The legal premise on which the People urge affirm-

ance is that a suspect, purportedly not under arrest

but detained only for investigation, may be forcibly

transported from the location where the investigatory

detention took place and brought, handcuffed, to the

scene for whatever aid his person and belongings may

be in the investigation of a crime. People v. Gonsoulin,

19 Cal.App.3d 270 is to the contrary. It simply and

correctly characterizes a similar transportation—though

purportedly consented to—as an arrest. As noted. how-

ever, in this case the prosecution went to some pains

not to claim that an arrest was justified or took place.

The constitutional basis for an enforced detention,

short of an arrest, was explained in Terry v. Ohio,

392 U.S. 1. It will be recalled that there the Supreme

Court “emphatically” rejected the notion that Fourth

Amendment considerations are irrelevant to investiga-

tory detentions. “It must be recognized that whenever

a police officer accosts an individual and restrains

his freedom to walk away, he has ‘seized’ that person.”

It is elementary that we may not support the trial court’s

refusal to suppress “on theories . . . invented for the consump-

tion of reviewing courts.” (People v. Superior Court (Simon),

7 Cal.3d 186, 198; cf. People v. Miller, 7 Cal.3d 219,

226; Agar v. Superior Court, 21 Cal.App.3d 24, 28-29.)

The People’s reluctance to urge that an arrest at Third

and Highland would have been justified is understandable. From

the very beginning of the investigation it was questionable

whether the person whom Mr. Marx observed had had anything

to do with the burglary. As it turned out, he had not. Some

explanation of the change of description from a dark sweater

to a light cardigan would have been in order. There is the

problem that defendant was on foot, not in the car Marx

had observed. The officers’ impression that the suspects appeared

nervous, means practically nothing. (People v. Moore, 69 Cal.2d

674, 683.) Their stories were not really conflicting and the

mere fact that there was a restaurant about 300 feet west

from where the suspects said they had gotten off the bus

does not mean that they knew of its existence.

lL

— =

(Id. p. 16.) The court then, after carefully analyzing

the facts of the case before it, decided that the police

were entitled to restrict the petitioner's freedom to

go wherever he pleased and to force a temporary

confrontation for the purpose of investigating the suspi-

cious situation which they had observed. It then further

decided that the officers had the right to take certain

limited steps for their own protection during that con-

frontation. This subsidiary problem—the frisk—is not

what concerns us here. What we are dealing with

is, rather, the People’s assertion that when the on-

the-spot investigation proves fruitless, the police, though

lacking a right to make an arrest, may nevertheless

change the venue of the cenfrontation to a point several

blocks away.

To justify what took place the People rely on People

v. Watson, 12 Cal.App.3d 130. Watson is not in

point. It is a routine case involving a justifiable deten-

tion, followed by a permissible on-the-scere frisk which

led to the discovery of contraband.

The People also cite People v. Shoemaker, supra,

16 Cal.App.3d 316, where the police were held to

have reasonably detained the defendant in front of

a bar where he was sitting on the curb. At the request

of the police, the defendant then voluntarily led them

to an automobile in which, according to defendant's

®‘With respect to the fact that the defendant was handcuffed

during the trip back to the Marx home, the People point

to evidence that handcuffing is a standard ocedure for

felony suspects who enter a police vehicle and that it is done

for the purpose of the officer’s safety. We certainly have no

quarrel with a reasonable police procedure designed to protect

the safety and lives of officers while transporting a suspect

or prisoner. The argument, however, misses the point which

is whether or not the officers had the right to transport defendant

in the first place.

—20—

story, he had arrived at the bar. When the party

arrived at the car, which was about 75 feet from

the initial point of confrontation, defendant started

to shed marijuana. The court held that this voluntary

act was not a response to improper police conduct.

Shoemaker is obviously not in point. There is a

world of difference between a suspect voluntarily lead-

ing officers to an automobile 75 feet away and his

being transported involuntarily, in handcuffs, for several

blocks.

Finally, the People refer us to such cases as People

v. Rodriguez, 10 Cal.App.3d 18, which, in spite of

the so-called “Wade-Gilbert rule and People v. Fowler,

1 Cal.3d 335, 344, find no constitutional violation

in an on-the-spot identification of the suspect by the

victim, after the suspect has been arrested some distance

from the scene of the crime. (See also, People v.

Williams, 6 Cal.App.3d 274, 278; People v. Burns,

270 Cal.App.2d 238, 246.) This argument, too, misses

the point. In the cases relied on by the People, the

defendant was legally arrested. The question discussed

was the legality of the confrontation with the victim

at the scene of the crime, during which the arrestee

was not represented by counsel and had not waived

his right to such represeniation. Obviously, that is

not the problem here whe:e the attempted identification

of defendant by Marx was negative.

Thus, there simply was no legal justification for

the police to have defendant in their custody at the

time when it became apparent that the physical charac-

teristics of the shoes he wore became highly relevant

to the investigation of the burglary. The case is thus

on all fours with Davis v. Mississippi, 394 U.S. 721,

—2)—

where the United States Supreme Court suppressed

evidence of fingerprints obtained from the suspect dur-

ing an illegal custody. Defendant’s formal arrest based

on the comparison between the shoe print left on

the premises and the shoes he was wearing was therefore

illegal, as was all other physical evidence—such as

the money in his possession—that was obtained as

a result of the arrest. (See also, People v. Moore,

69 Cal.2d 674, 683; People v. Sesslin, 68 Cal.2d

418, 426; People v. Gardner, 266 Cal.App.2d 19,

22; People v. Gibson, 220 Cal.App.2d 15, 26.)

The judgment is reversed.

CERTIFIED FOR PUBLICATION

Kaus, P. J.

We concur:

Stephens, J.

Hastings, J.

Superior Court No. A-290594 (Los Angeles County).

Elias Powell, Judge.

JOSEPH SHEMARIA for Defendant and Appellant.

EVELLE J. YOUNGER, Attorney General, JACK

R. WINKLER, Chief Assistant Attorney General, S.

CLARK MOORE, Assistant Attorney General, ED-

WARD T. FOGEL, Jr., and GARY R. HAHN, Deputy

Attorneys General, for Plaintiff and Respondent.