Petition — Wise v. California

a

& ¥

IN THE |

SUPREME COURT OF THE UB STATES

October Term, i

No. 79- 99-2075

EDDIE WISE,

Petitioner,

Vv.

THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA, SECOND APPELLATE

DISTRICT

QUIN DENVIR

State Public Defender

of California

RUSSELL I. LYNN

Deputy State Public

Defender

WILLIAM WESLEY PATTON

Deputy State Public

Defender

107 South Broadway

Suite 9111

Los Angeles, CA 90012

Phones: (213) 620-5437

(213) 620-5444

Attorneys for

Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-

EDDIE WISE,

Petitioner,

Vv.

THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA, SECOND APPELLATE

DISTRICT

QUIN DENVIR

State Public Defender

of California

RUSSELL I. LYNN

Deputy State Public

Defender

WILLIAM WESLEY PATTON

Deputy State Public

Defender

107 South Broadway

Suite 9111

Los Angeles, CA 90012

Phones: (213) 620-5437

(213) 620-5444

Attorneys for

Petitioner

TABLE OF CONTENTS

“

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA, SECOND APPEL-

LATE DISTRICT

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

STATEMENT OF FACTS

The Preliminary Hearing

Prosecution Case

REASONS FOR GRANTING THE WRIT

I ONE'S EXERCISE OF HIS CONSTI-

TUTIONAL RIGHT TO AVOID AN

ILLEGAL POLICE SEIZURE CANNOT

BE USED AGAINST HIM TO FORMU-

LATE SUFFICIENT CAUSE TO

DETAIN FOR QUESTIONING

CONCLUSION

APPENDIX "A" OPINION, COURT OF APPEAL

SECOND DIST. FILED

MAR. 3, 1980

APPENDIX "B" ORDER OF SUPREME COURT

OF CALIFORNIA DENYING

HEARING, May 2, 1980

ouvuurw & WN NY ND Ff

18

TABLE OF AUTHORITIES

Cases

Adams v. Williams

(1972) 407 U.S. 143

Aguilar v. Texas

(1964) 378 U.S. 108

Albertson v. SACB

(1965) 382 U.S. 70

Bad Elk v. United States

(1900) 177 U.S. 529

Badillo v. Superior Court

(1956) 46 Cal.2d 269

Brown v. Texas

(1979) i -

61 L.Ed.2d 357

Camara v. Municipal Court

(1967) 387 U.S. 523

Commonwealth of Pennsylvania v.

Jeffries

(1973) 454 Pa. 320

Fletcher v. Wainwright

(Sth Cir. 1968) 399 F.2d 62

Government of the Virgin Islands v.

Duvergee

(3rd Cir. 1972) 456 F.2d 1271

Grosso v. United States

(1968) 390 U.S. 62

Haynes v. United States

(1968) 390 U.S. 85

Au Yi Lau v. United States

Immigration & Nat. Serv.

(Dist. of Columbia Cir. 1971)

445 F.2d 217

ii

Pages

10

12

11,15,16

13,16

12

10

14-15

TABLE OF AUTHORITIES (Cont'd)

Cases

Leary v. United States

(1969) 395 U.S. 6

Marchetti v. United States

(1968) 390 U.S. 39

Norwell v. Cincinnati

(1973) 414 U.S. 14

People v. Bower

(1979) 24 Cal.3d 638

People v. Menifee

(1979) 100 Cal.App.3d 235

People of the State of

California v. Eddie Wise

2 Crim. No. 35275

See v. Seattle

(1967) 387 U.S. 541

Sherbert v. Verner

(1963) 374 U.S. 398

Sibron v. State of New York

(1968) 392 U.S. 40

Speiser v. Randall

(1958) 357 U.S. 513

Spinelli v. United States

(1969) 393 U.S. 410

Wong Sun v. United States

(1963) 371 U.S. 471

Terry v. Ohio

(1968) 392 U.S. 1

United States v. DiRe

(1948) 332 U.S. 581

iii

Pages

13,15,16

9,14,16

14

11,14

12

12,13,14

10,12

TABLE OF AUTHORITIES (Cont'd)

Cases

United States v. Embery

(3rd Cir. 1976) 546 F.2d

United States v. Mendenhall

(1980) U.S.

48 U.S.L.Wk. 4575

United States v. Newman

(10th Cir. 1974) 490 F.2d 993

United States v. Nichols

(8th Cir. 1971) 448 F.2d 622

Wainwright v. Louisiana

(1968) 392 U.S. 598

Wright v. Georgia

(1963) 373 U.S. 284

California Statutes

Health & Saf. Code

§ 11377

Pen. Code

§ 1538.5

Codes

United States Code, Title 28

S . 229713)

Constitutions

U.8. Const.

Amend. IV

XIV

Rules of Court

Cal. Rules of Court

rule 25

28

iv

Pages

3,5,8

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-

EDDIE WISE,

Petitioner,

Vv.

THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA, SECOND APPELLATE

DISTRICT

Petitioner, EDDIE WISE, respectfully

prays that a writ of certiorari issue to

review the judgment and opinion of the

California Court of Appeal, Second

Appellate District, Division One, entered

on March 3, 1980, in the case of The People

of the State of California v. Eddie Wise,

2 Crim. No. 35275. The California Supreme

Court denied a petition for hearing in this

matter on May 2, 1980, and left standing

the judgment of the Superior Court of Los

Angeles County convicting petitioner of a

violation of the California Health and

Safety Code section 11377 (possession of

phencyclidine) and sentencing him to the

California Youth Authority for the maximum

period of confinement.

OPINION BELOW

A copy of the opinion of the Court of

Appeal is reproduced as Appendix A,

attached to the instant petition. A copy

of the order indicating that the petition

for hearing in this case was denied by the

California Supreme Court is attached hereto

as Appendix B.

JURISDICTION

The jurisdiction of this Court is

invoked under Title 28, Univced States Code

section 1257(3). The order of the Court of

Appeal became final on May 2, 1980, when

the Supreme Court of the State of

California denied petitioner's petition

for hearing. (Cal. Rules of Court, rules

25, 28.)

QUESTIONS PRESENTED

l. If the police lack specific and

articulable facts connecting a citizen to

criminal activity, may they detain that

person if he exercises his constitutional

right to be free from a threatened unwar-

ranted detention?

2. Can avoidance of the police who do

not have sufficient cause to detain a

suspect form the basis for probable cause

to detain?

3. May the police in an indiscrim-

inate dragnet fashion, drive a police

vehicle at a group of Blacks who exhibit

no manifestations of criminal behavior in

the hope that some might run away to avoid

the threatened illegal detention, and then

may the police base that detention on the

citizen's attempt to avoid the illegal

detention?

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United

States Constitution provides:

"The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and seizures,

shall not be violated, and no

Warrants shall issue, but upon

probable cause, supported by oath

or affirmation, and particularly

describing the place to be searched,

and the persons or things to be

seized."

The Fourteenth Amendment to the United

States Constitution provides in pertinent

part:

"No State shall make or enforce

any law which shall abridge the

privileges or immunities of

citizens of the United States;

nor shall any State deprive any

person of life, liberty, or

property, without due process of

law; nor deny to any person within

its jurisdiction the equal protec-

tion of the laws."

STATEMENT OF THE CASE

In an information filed in the Superior

Court of Los Angeles County, it was alleged

that petitioner violated California Health

and Safety Code section 11377, possession

of a controlled substance, phencyclidine

(CT 37) 2/ After petitioner's motion to

suppress evidence pursuant to California

Penal Code section 1538.5 was denied, he

pleaded guilty (CT 40). Petitioner was

then sentenced to the California Youth

Authority for the maximum term of confine-

ment (CT 47-48).

1. "CT" refers to the pages of the

Clerk's Transcript; “RT" refers to the

Reporter's Transcript.

4

Petitioner appealed his judgment of

conviction to the California Court of

Appeal, Second Appellate District, Division

One. Petitioner alleged on appeal: (1)

That he was unconstitutionally detained and

that all evidence seized during that

illegal detention should have been sup-

pressed, and (2) that the warrantless

search of his closed container, an ordinary

bottle, violated petitioner's Fourth Amend-

ment right to privacy and protection from

unreasonable searches.

STATEMENT OF FACTS

The Preliminary Hearing’

Prosecution Case

On November 14, 1978, at approximately

9 p.m., Officers Pytel and Holtz went to a

parking lot at 102nd and Grape Streets to

investigate complaints from anonymous,

untested informers concerning previous

//

2. The Penal Code section 1538.5 sup-

pression hearing in the Superior Court was

submitted upon the preliminary hearing

transcript as contained in the Clerk's

Transcript (CT 26).

narcotics activity at that location.2/ In

conjunction with other officers who were

to drive a police car into the parking lot

to detain or scatter any citizens who

might be present, Pytel and Holtz stationed

themselves on foot behind a building north

of the lot (CT 4-6). Pytel then observed

a group of "male Negroes and a female

Negro .. . standing in the parking lot"

(CT 6). Pytel and Holtz observed no mani-

festations of criminal behavior; the group

was merely standing and talking, no objects

passed hands and no one appeared to be

under the influence of drugs. As the

police car drove toward the group, five or

six people in the group, including peti-

tioner, ran:4/pytel and Holtz ordered

3. The anonymous informants did not

state that drug activity was taking place

that night, did not give a description of

any persons involved in those prior trans-

actions, and did not indicate the time of

day of the previous narcotics activity.

4. Those members of the group who chose

not to exercise their constitutional right

to avoid illegal police detentions were

also detained, questioned, and had Field-

Identification Cards completed (CT 11-13,

16).

petitioner to halt and raise his hands. As

petitioner complied with the police command,

he “almost instantly" dropped a bottle to

his feet.>/

During petitioner's detention

the officers opened the bottle and deter-

mined that it contained PCP (CT 6-7, 12,

16-19). Petitioner was then arrested (CT 7,

16).

2. oe a a

5. The prosecution presented no

evidence that the officers thought that

petitioner abandoned or attempted to con-

ceal the bottle. In fact, Pytel testified

that petitioner did not attempt to throw

or toss the bottle away, but rather merely

"dropped the bottle down to his side" when

they ordered him to halt and raise his

hands (CT 10, 12).

REASONS FOR GRANTING THE WRIT

I

ONE'S EXERCISE OF HIS CONSTITUTIONAL

RIGHT TO AVOID AN ILLEGAL POLICE

SEIZURE CANNOT BE USED AGAINST HIM

TO FORMULATE SUFFICIENT CAUSE TO

DETAIN FOR QUESTIONING

This Court has in other contexts con-

Sistently held that one cannot be punished

for the act of invoking a constitutional

right.&/ However, in the instant case,

petitioner was punished for exercising his

Fourth Amendment right to be free from an

unwarranted seizure by the police; the

Court of Appeal held that petitioner's

avoidance of the police permitted the offi-

cers to seize and detain him (Appen. A,

p- 11).2/ As the California Supreme Court

6. See v. Seattle (1967) 387 U.S. 541;

Camara v. Municipal Court (1967) 387 U.S.

523; Albertson v. SACB (1965) 382 U.S. 70;

Marchetti v. United States (1968) 390 U.S.

39; Grosso v. United States (1968) 390 U.S.

62; Haynes v. United States (1968) 390 U.S.

85; Leary v. United States (1969) 395 U.S. 6;

Sherbert v. Verner (1963) 374 U.S. 398; and

Speiser v. Randall (1958) 357 U.S. 513.

7. It is clear that even under Justice

Stewart's recent definition of "Seizure" in

[fn. cont'd]

so cogently noted in People v. Bower (1979)

24 Cal.3d 638, 649:

"If the right to be free from unjus-

-ified detentions is lost merely by

seeking to avoid such encounters,

then the right is meaningless; it

would exist only to the extent it

was not exercised. Such a conclu-

sion is unacceptable."

However, this Court has never specifi-

cally affirmed the constitutional right to

avoid or resist an unlawful detention. As

Justice Douglas noted in his dissenting

opinion in Wainwright v. Louisiana (1968)

392 U.S. 598, "at least prior to the ill-

starred case of Terry v. Ohio, a citizen

had the right to offer some resistence to

an unconstitutional 'seizure' or 'search.'

Must he now stand quietly and svp..nely

while officers 'pat him down,' whirl him

United States v. Mendenhall (1980) __ U.S.

___, petitioner was seized since the offi-

cers' ordering him to halt and raise his

hands was a show of authority through "the

use of language or tone of voice indicating

that compliance with the officer's request

might be compelled." Furthermore, under

the circumstances "a reasonable person

would have believed that he was not free to

leave." (Id., __ U.S. __; 48 U.S.L.Wk.

4575, 4578.)

8/

around, and throw him in the wagon?"=

Unfortunately, conflicting language and

holdings in this Court's opinions, as well

as inconsistent opinions in the Federal

District courts, render it unclear whether

a citizen may be detained for exercising

his right to avoid illegal detentions. A

hearing by this Court is therefore neces-

Sary to give guidance to the lower courts

by resolving the current ambiguous and

conflicting state of the law.

In the instant case, Officers Pytel

and Holtz, prior to petitioner's attempt

to avoid the police contact, lacked suffi-

cient specific and articulable facts upon

9/

which to predicate petitioner's detention.

8. The court in Government of the

Virgin Islands v. Duvergee (3rd Cir. 1972)

456 F.2d 1271, 1273, noted that the right

to avoid an illegal arrest as formulated

in Bad Elk v. United States (1900) 177 U.S.

529, 534-535 and United States v. DiRe

(1948) 332 U.S. 581, 594 "may now be ques-

tionable in view of Terry v. Ohio [cita-

tion]."

9. The Court of Appeal merely held

that after petitioner ran, the officers had

sufficient cause to detain him. Respondent

(fn. cont'd]

10

First, the anonymous, untested informers’

tip that prior narcotics transactions had

occurred in the parking lot was not suffi-

ciently detailed nor reliable to support a

detention. (Adams v. Williems (1972) 407

U.S. 143, 146-147; Aguilar v. Texas (1964)

378 U.S. 108; Spinelli v. United States

(1969) 393 U.S. 410.) Furthermore, the

mere presence of petitioner in an area of

prior narcotics transactions was not suff-

cient to justify his detention. (Sibron v.

State of New York (1968) 392 U.S. 40, 62-

63; Brown v. Texas (1979) ___ U.S. __se,

61 L.Ed.2d 357; United States v. Nichols

(8th Cir. 1971) 448 F.2d 622, 624.) The

officers here had no information that a

crime was being or was about to be com-

mitted, had no description of any suspects,

and saw no actions by any of the members of

the group which manifested possible crim-

inal conduct. Even so, the police decided,

and did, detain and question the members of

the group. The police "dragnet" was

has never contested either at trial or on

appeal, that prior to the attempt to avoid

police detention, that there was sufficient

cause for a detention.

11

predicated upon a mere hunch that some

of the members of the peacefully assem-

bled group who were standing in the parking

lot next to their residence might be

involved in criminal behavior. Even after

the police vehicle was driven toward the

group, the only additional fact was the

attempt of six persons to avoid the unwar-

ranted police contact 22/

In United States v. DiRe, supra, 332

U.S. at 594, this Court stated that "[o]ne

has an undoubted right to resist an unlaw-

ful arrest, and courts will uphold the

right of resistence in proper cases." The

right to avoid illegal police detentions

short of arrests was recognized in Justices

Harlan's and White's concurring opinions

in Terry v. Ohio (1968) 392 U.S. l.

Justice Harlan stated that "ordinarily

10. Since petitioner dropped the bottle

in response to the illegal detention and

the order to halt and raise his hands, the

police could not predicate their search on

an abandonment theory. (United States v.

Newman (10th Cir. 1974) 490 F.2d 993, 995;

Fletcher v. Wainwright (5th Cir. 1968)

399 F.2d 62; Wong Sun v. United States

(1963) 371 U.S. 471; Badillo v. Superior

Court (1956) 46 Cal.2d 269, 273.)

12

the person addressed has an equal right to

ignore his interrogator and walk away,"

and Justice White concluded that "[a]bsent

special circumstances, the person approached

may not be detained or frisked but may

refuse to cooperate and go on his way."

(Id., at 32-34.) Furthermore, in Wright v.

Georgia (1963) 373 U.S. 284, 291-292, this

Court held that "one cannot be punished for

failing to obey the command of an officer

if that command is itself violative of the

Constitution." Also, "one is not to be

punished for nonprovocatively voicing his

objection to what he obviously felt was a

highly questionable detention by a police

officer." (Norwell v. Cincinnati (1973)

414 U.S. 14, 16.) It would therefore appear

from the foregoing authorities that police

who lack sufficient facts to detain a person

may not utilize the suspects' exercise of

his constitutional right to be left alone

free of unreasonable seizure as the predi-

cate for the detention.+//

ll. In Commonwealth of Pennsylvania v.

Jeffries (1973) 454 Pa. 320, 311 A.2d 914,

917, police observed defendant walking on

[fn. cont'd]

13

Even so, this Court in Sibron v. New

York, supra, 392 U.S. 40, 66-67, held that:

", . « Geliberately furtive actions

and flight at the approach of

strangers or law officers are strong

indicia of mens rea, and when cou-

pled with specific knowledge on the

part of the officer relating the

suspect to the evidence of crime,

they are proper factors to be con-

sidered in the decision to make an

arrest." 12/

However, neither Sibron nor its progeny

discuss the counterbalancing policy of not

penalizing one for exercising his constitu-

tional right to be free from unwarranted

seizures. The court in Au Yi Lau v.

United States Immigration & Nat. Serv.

the street. When Jeffries saw the officers,

he attempted to avoid them by running away.

The Pennsylvania Supreme Court found that

the defendant's quickened pace and flight

were not sufficient to justify a Terry

stop. (Accord People v. Bower, supra, 24

Cal.3d 638; People v. Menifee (1979) 100

Cal.App. 3d 235-)

12. Of course, in the instant case,

Since the officers had no information relat-

ing petitioner or any other member of the

group to criminal behavior, even under

Sibron the police could not rely on the

suspects' flight to justify the detentions.

14

(Dist. of Columbia Cir. 1971) 445 F.2d 217,

223, has even held that a nonviolent

attempt to avoid the police who had no

Cause to detain a suspect was in itself

sufficient cause for a Terry detention:

"It was this response [defend-

ant's avoidance] to the appearance

of the immigration officers which,

we think, sufficed to create a

reasonable suspicion in the minds

of the officers that petitioners

might be illegal aliens, and

thereby, under the Terry doctrine,

Warranted the temporary detention

of petitioners for interrogation.

- « -" (See also United States v.

Embery (3rd Cir. 1976) 546 F.2d

552.

Au_ Yi Lau and Embery are not only

inconsistent with "the principle that a

citizen can defy an unconstitutional act

(which] is deep[ly rooted] in our system

[Citation]," but they are also inconsis-

tent with the spirit of this Court's

opinions in Norwell v. Cincinnati and

Brown v. Texas, supra. (Wainwright v.

Louisiana, supra, 392 U.S. 598, 20 L.Ed.2d

at 1331 [Douglas dis.].) In Norwell an

officer approached a suspect and asked him

if he lived in the neighborhood. The

suspect walked away; the officer twice

15

attempted to stop the suspect, however, the

man threw off the officer's arm and pro-

tested. The suspect was then arrested for

disorderly conduct. In reversing the

conviction, this Court stated that,

"Csjurely one is not to be punished for

nonprovocatively voicing his objection to

what he obviously felt was a highly ques-

tionable detention by a police officer."

(Id , 414 U.S. at 16.)423/tn Brown v. Texas,

supra, U.S. , 61 L.BG.2d 357, 363,

this Court held that petitioner could not

be punished for refusing to cooperate with

an officer during a Terry detention since

"the officers lacked any reasonable suspi-

cion to believe appellant was engaged or

had engaged in criminal conduct."

Therefore, as in Norwell, Brown,

People v. Bower, and Commonwealth of

Pennsylvania v. Jeffries, supra, Officers

13. It would be absurd to hold that

one has a constitutional right to verbally

abuse an officer who is attempting to

effectuate an illegal detention while at

the same time holding that a person cannot

exercise his constitutional right to be free

from an unconstitutional seizure by merely

avoiding that confrontation.

16

Pytel and Holtz should not have been

permitted to seize petitioner based upon

his attempt to exercise his constitutional

right to be free from that unreasonable

seizure. If the police can illegally

threaten the detention of a citizen and then

use the citizen's attempt to avoid that

contact as a suspicious circumstance, then

the right to be free from unwarranted

seizures is meaningless. Therefore, a

grant of certiorari and a reversal of the

judgment below are required as a matter of

constitutional law.

x 2 8 & 8 @

17

CONCLUSION

For the foregoing reasons, petitioner

respectfully prays that this Court grant the

instant petition for certiorari. This

Court's resolution of the question of

whether a person may be detained based

upon his attempt to avoid an illegal

police detention is necessary to resolve

conflicts in the law and to give guidance

to the lower courts.

Respectfully submitted,

QUIN DENVIR

State Public Defender

of California

RUSSELL I. LYNN

Deputy State Public

Defender

By (ndakAnac. beabeg [atte

WILLIAM WESLEY PATTON

Deputy State Public

Defender

Attorneys for

Petitioner

18

APPENDIX "A"

APPENDIX "A"

Opinion of California Court of Appeal

[2 Crim. No. 35275, Second Dist., Div. One,

Mar. 3, 1980.]

THE PEOPLE,

Plaintiff ana Respondent,

Vv.

EDDIE WISE,

Defendant and Appellant.

Defendant appeals from a judgment

entered on a plea of guilty to unlawful

possession of PCP. He challenges the

legality of his detention and the seizure

of the contraband. His motion pursuant

to section 1538.5, Penal Code was submit-

ted on the transcript of testimony taken

at the preliminary hearing.

At 9 p.m. Officers Pytel and Holtz,

in uniform and in a marked patrol car,

drove to Century Boulevard and 102nd

Street where a parking lot was located in

an apartment area; they went there because

they had received numerous complaints from

citizens in the area of narcotic sales and

activity in that parking lot and information

1.

from other officers regarding complaints

of narcotic activity made to them by citi-

zens in that area, and because they had had

personal experience with that particular

parking lot having made numerous arrests

in the past for narcotics and involvement

in numerous narcotic incidents regarding

suspects or victims of narcotic transactions.

The officers walked to the parking lot

about five apartments from the corner and

remained behind a building from which, they

could view the entire parking lot in which

about 30 or 40 yards away, was a group of

15 or 20 young Negro male adults; a police

car pulled into the lot and its high beam

lights illuminated the entire lot; most of

the people in the group remained there but

five or six of them, one of whom was defend-

ant, ran away. From Officer Pytel's own

past experience at that parking lot he

noticed that usually when one is possessing

narcotics for sales in that vicinity and

sees a police car or officer he will turn

and run in the opposite direction. Defend-

ant ran away from the group and the police

car and directly toward the building behind

2.

which Officers Pytel and Holtz were stand-

ing when defendant was 20 feet away and

facing them the officers stepped out from

behind the building; defendant was holding

a bottle in his left hand; Officer Pytel

said, "Police officers. Halt, put up your

hands"; defendant dropped the bottle onto

the grass down to his side which landed

two or three feet away, and raised his

hands. Officer Pytel recovered the bottle

which was a brown glass container the con-

tents of which he could see through the

glass; it contained Sherman cigarettes and

when he opened it a strong odor of PCP

emitted from the cigarettes.

Appellant relies on People v. Bower,

24 Cal.3d 638, in challenging the consti-

tutionality of his detention.* He asserts

that the detention was predicated on "mere

hunch" that there might criminal activity,

1 Inasmuch as on the trial level

defendant did not advance the theory of

violation of his right to assemble freely

or utilize it as a ground for a search and

seizure objection, we will not now enter-

tain his contention based thereon and

raised here for the first time. (People

v. Privitera, 23 Cal.3d 697, 710.)

3.

and that the officers engaged in a "police

dragnet" operation the result of which did

not constitute probable cause to detain him

even though he fled police.

"It is settled that circumstances short

of probable cause to make an arrest may

justify a police officer stopping and brief-

ly detaining a person for questioning or

other limited investigation. [Citations. ]"

(In re Tony C., 21 Cal.3d 889, 892.) After

articulating principles controlling deten-

tion, the court in Tony C. continued:

"Balancing these factors, the courts have

concluded that in order to justify an

investigative stop or detention the cir-

cumstances known or apparent to the officer

must include specific and articulable facts

causing him to suspect that (1) some activ-

ity relating to crime has taken place or is

occurring or about to occur, and (2) the

person he intends to stop or detain is

involved in that activity. Not only must

he subjectively entertain such a suspicion,

but it must be objectively reasonable for

him to do so: the facts must be such as

would cause any reasonable police officer

4.

in a like position, drawing when appropriate

on his training and experience [citation],

to suspect the same criminal activity and

the same involvement by the person in ques-

tion." (P. 893.)

In light of the foregoing standards we

examine the actions of Officer Pytel in

relationship to the existing circumstances

and conduct to determine whether the facts

known to him at the time he ordered defend-

ant to halt, which included his specialized

training, knowledge and experience (People v.

Superior Court (Kiefer), 8 Cal.3d 807, 827)

and the specific and articulable facts

available to him together with reasonable

inferences to be drawn therefrom, were such

as to reasonably cause him to believe that

some activity relating to crime was occur-

ring and that defendant was involved in

that activity. We conclude that defendant

was lawfully detained.

In People v. Bower, 24 Cal.3d 638,

defendant, a white male, was with several

black persons at night in a black residen-

tial complex; the group changed its course

when it observed the patrol car, then

S.

conversed ina "huddle"; the officers

decided either narcotics or weapons were

involved due to the hour and a white male

being with black persons in a black residen-

tial area; when the officers approached,

the group disbanded and when defendant

exited to the street at a quick walk, the

officer told him to stop. The case falls

into proper perspective when considered

in relation to the narrow issue framed by

the court: "This court must decide 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."

(P. 641.) The court held that these factors

were not an adequate basis on which to

detain defendant. (P. 649.)

It is important to know what the case

at bench is not. It is not a white man in

a black residential "high crime" area with

black companions at night. It is a young

male adult standing with a group of 19

other young male adults at 9 p.m. in a

parking lot of an apartment complex who,

upon entry to the lot of a police car, ran

6.

with four others from the group which

remained standing and away from the police

vehicle and out of the light of its high

beams across the grass into the darkness

in the direction of a building holding a

bottle in his left hand, and was stopped

by officers who had observed him run from

the group and the police car upon its entry

to the lot, were aware of prior narcotics

Sales and activity in that lot from numerous

complaints to them and to other officers

by citizens in the area and from numerous

arrests they personally had made there for

narcotics and involvement in numerous inci-

dents regarding suspects or victims of

narcotic transactions, and knew from their

Own personal experience in that lot that

usually when one possesses narcotics for

Sales there and sees a police car or officer,

he will turn and run in the opposite direc-

tion.

There is no race factor present; they

were all black males in a black neighbor-

hood, but neither race nor "one officer's

perception of the criminal tendencies of a

racial group" (People v. Bower, 24 Cal.

7.

3d 638, 646-647; original emphasis) entered

the officer's consideration. There do

exist two factors which the court in Bower

characterized as "not ‘actvity' by a citi-

zen" (p. 645) -- darkness and the character

of the area. These two alone are insuffi-

cient to warrant the intrusion (In re Tony C.,

21 Cal.3d 888, 897), but still they may be

pertinent circumstances when other factors

are present. (People v. Rosenfeld, 16 Cal.

App.3d 619, 622.) Bower warns us that the

nighttime factor "should be appraised with

Caution." (P. 645.) While 9 p.m. is not

a late hour it is dark then and whether it

is 9 p.m. or 3 a.m., darkness effectively

hides criminal activity. Concerning the

area, the officers knew the parking lot

as one of narcotic sales and activity.

Again we are cautioned in Bower in apprais-

ing a "high crime area." We note that the

term "high crime area" was not used here,

the parking lot was never so described and

the crime rate had no part in the officer's

consideration. However, the character of

the area in terms of Officer Pytle's per-

sonal familiarity with the activities there

8.

and the nighttime factor combined to pro-

vide the environment in which the conduct

of defendant must be judged.

The lack of "furtive behavior" or the

“innocent gesture" was also discusced in

Bower; the court found "little that is

'furtive'" about defendant's behavior

(p. 647) -- four or five persons in ani-

mated conversation left the apartment

building each leaving to go in a different

direction; nothing was concealed, disposed

of, exchanged or carried; when they sepa-

rated they walked away on public sidewalks

with no attempt to avoid the lighted open

portions of the area. The key seems to be

that the underlying facts must reasonably

distinguish the suspect from any other

citizen at "that time and place." (People v.

Moore, 69 Cal.2d 674, 683), thus the acti-

vity must be appraised in relation to the

environment, time and place in which it

occurred. (People v. Moore, 69 Cal.2d 674,

683; Flores v. Superior Court, 17 Cal.App.

3d 219, 223.) Considered in this light,

defendant's actions were not exactly normal

and in no way approached the innocence cf

9.

the mere act of turning one's back to a

police officer while talking into the tele-

phone in a telephone booth as in People v.

Moore, 69 Cal.2d 674, 683. Upon seeing

the police car, defendant and four others

ran in the same direction away from the

vehicle out of the light across the grass

toward a darkened building. Significant

is the fact that the other 15 members of

the group remained where they were illumi-

nated by the high beams of the police car.

This flight from the police is to be judged

in the environment in which the activity

took place. (Flores v. Superior Court,

17 Cal.App.3d 219, 223.) To the trained

officer knowing the character of that park-

ing lot and that usually one possessing

narcotics for sale there will run from

police, such flight from the police vehicle

amounted to even more than a "furtive

gesture"; plainly, it took on all the char-

acteristics of an attempt by one in

//

//

//

//

10.

possession of narcotics to escape confronta-

tion with a police officer.”

Appellant's contention that seizure

of the bottle was unlawful is based on the

dual premise that he did not abandon it and

his interest in the contents and in any

case his discarding the bottle was the

product of an illegal detention; and that

the search of the bottle cannot be justi-

fied as a plain view seizure. In light of

our conclusion concerning the first premise,

we do not reach the second.

Appellant introduces an element of fear

of danger of being shot by police "in light

of the increasing number of police shootings

of detained suspects," and argues that drop-

ping the bottle was to assure police it was

not a weapon. This police shooting theory

fails to support any such fear factor. He

2 It could be argued that when Offi-

cer Pytel saw defendant running toward him

before he ordered him to halt he saw the

bottle in his hand. There is some confusion

in the record on this point. However, in

the absence of a showing Officer Pytel

relied on this added circumstance, we con-

sider this no further.

ll.

is precluded from raising the issue here

for the first time. (People v. Privitera,

23 Cal.3d 697, 710; People v. Rogers,

21 Cal.3d 542, 547-548.) The same may be

said for his argument that there was no

testimony regarding the contraband nature

of the bottle or Officer Pytel's expertise

in recognizing its contents as contraband.

Although the superior court commented that

defendant dropped the bottle in plain sight

upon being ordered to stop, it is clear

that in denying his motion the superior

court accepted the theory of abandonment:

"They ordered him to stop and he drops the

bottle in plain sight. Investigating it

they found it contained contraband. I

think is is a valid stop. Of course, there

was, in fact, no search once you get by

that."° (Emphasis added.) This is a

3. At the preliminary hearing defense

counsel argued that by dropping the bottle

defendant did not abandon it; the prosecutor

said it constituted abandonment. The motion

in superior court was. submitted on the tran-

script of testimony taken at the preliminary

hearing without argument. We can assume that

the superior court decided the motion pri-

marily on the issue framed by defendant him-

self at the preliminary hearing.

i2.

holding that defendant had abandoned the

bottle at the commencement of a legal deten-

tion, and that seizure and examination of

the bottle by police were not the result of

any search. Finally, there is no evidence

that Officer Pytel threatened to conduct

an illegal search. When he told defendant

to halt and raise his hands he did not tell

or even intimate to him he was going to

search him (People v. Robinson, 58 Cal.App.

3d 363, 366), he made no threats of any

kind and committed no act evidencing his

intent to attempt, by coercion or threat,

a non-consensual search. (In re Michael V.,

10 Cal.3d 676, 682.) Thus, this theory

was not presented in the court below. Under

the circumstances, it is reasonable to

believe the officer ordered defendant to

raise his hands as a proper precaution for

his own safety.

On the state of the record here, plainly

the issue is not whether the seizure of the

bottle was the product of an illegal search,

but whether it was the product of an illegal

detention for if the bottle was abandoned

by defendant at the outset of legal police

(5 #

conduct and detention it was proper for the

officers to seize and examine it. We have

hereinabove concluded that defendant's

detention was a lawful one and that there

was no illegal police conduct. It is

readily inferable from the evidence that

defendant dropped the bottle from his hand

either immediately before or at the time

he raised his hands to dispossess himself

of its contraband contents. Thus we also

conclude that the defendant's dropping the

bottle from his hand to the grass was an

abandonment of the bottle and the contra-

band it contained, they were not the sub-

ject of any "Search," there was no intrusion

into defendant's right of privacy and they

were legally acquired by the police.

(People v. Stafford, 28 Cal.App.3d 405,

410; People v. Orr, 26 Cal.App.3d 849,

860; People v. Rosenfeld, 16 Cal.App.3d 619,

623; People v. Poehner, 16 Cal.App.3d 481,

485-486; People v. Harris, 15 Cal.App.3d 498,

501.

Appellant's remaining contention is

that he is entitled to good time/work time

credits for presentence custody against his

14.

sentence. Whether a convicted felon is

entitled to good time and work time credit

for time served in the county jail prior to

sentencing is a question which our Supreme

Court has answered in the affirmative.

(People v. Sage (Feb. 19, 1980, Cr. 20997)

__ Cal.3d ___.) ~=Presumably appellant will

receive the benefit thereof administratively.

(See fn. 7, p. 14 slip opinion.) If not he

may resort to judicial relief by way of

motion to be given such credit in the trial

court.

The judgment is affirmed.

CERTIFIED FOR PUBLICATION

LILLIE, Acting P.J.

I concur:

HANSON, J.

15.

I dissent.

The propriety of Officer Pytel's initial

detention of appellant presents an exceed-

ingly close case.

It seems to me that the question boils

down to whether the police officer reason-

ably could believe that appellant was

connected to some activity relating to

crime (People v. Bower (1979) 24 Cal.3d 638,

644; In re Tony C. (1978) 21 Cal.3d 888,

892-893), and could point to “specific and

articulable facts" (ibid.) to support that

belief. Here there were two sets of facts:

(a) the officers were at the location

because they received numerous complaints

from citizens about narcotics sales and

activity in the parking lot and had made

numerous arrests for narcotics activity

at that precise location; and (b) defendant,

when a police car came into sight, ran away

from it toward the hidden witness-officer.

Fact (a) is more than the mere "high crime

area" rationalization rejected in Bower

(24 Cal.3d at p. 645). The citizen com-

plaint and the prior arrests related to

Re

specified crime (on-going narcotic activity)

in a specified place (the parking lot).

Fact (b) is more than mere avoidance of

officers by a citizen not desiring the

pleasure of their company. (Bower, supra,

24 Cal.3d at pp. 647-648.) It is flight

-- a fact which, if proved -- the jury

might consider in deciding guilt or inno-

cence. (Pen. Code, § 1127c.) As such, it

likewise is a specific and articulable

fact. While there is some logic in the

appellant's argument that the validity of

a detention should not depend on the speed

with which a party moves away from approach-

ing police officers (in Bower, supra, for

instance, the appellant had moved at a

"very quick walk, almost a run" (24 Cal.

3d at p. .643)), it simply is not unreason-

able, and therefore, is not within the

constitutional prohibition, to use the

fact of a dead run as one of the facts

Supporting a decision to detain. Accord-

ingly, I concur in the majority's conclusion

that the detention -- the stop itself --

was valid.

//

I cannot agree, however, that the search

of the bottle was justified on the theory

of abandonment. The record shows that, as

appellant ran from the police car, Officer

Pytel and his partner, Officer Holtz, both

in uniform, stepped from behind a building

when appellant was twenty feet away, and

said "Police officers. Halt, put up your

hands." At that moment defendant dropped

the bottle and put his hands in the air.

The officers retrieved and opened the

bottle and were then able to smell the

odor of PCP coming from the cigarettes.

The bottle dropping occurred almost

instantly after the police command as appel-

‘ lant complied with the order to raise his

hands. It is manifest that the bottle

was dropped in response to that order. It

is not reasonable, in my view, to read

into that response and intent to give up

all interest in the bottle, and hence any

right to object based on privacy. Thus,

cases in which a defendant discarded contra-

band while being pursued by police officers

(e.g., People v. Prendez (1971) 15 Cal.

App.3d 486) or when approached by officers

3.

(e.g. Hester v. United States (1924) 265

U.S. 57, 58) are not in point.

It is clear on this record that the

PCP was not identified until the bottle

was opened and the contents were smelled

by the officers. If appellant retained

a privacy interest in the contents of the

bottle further questioning to the extent

permitted during a detention (see e.g.,

People v. Manis (1969) 268 Cal.App.2d 653)

should have occurred to determine if, under

any theory, there was a right to open the

bottle without the benefit of a search

warrant. The only theory upon which to

begin to construct an argument would be

that the contents of the bottle were in

plain view and reasonably suspected to

contain contraband. The majority opinion

states that Officer Pytel could see the

contents of the bottle through the glass,

that it contained Sherman cigarettes and

that when the bottle was opened a strong

odor of PCP emitted from the cigarettes.

//

rf

//

Assuming that this is ao,* in the absence

of any testimony concerning the officer's

experience or expertise (Wimberly v.

Superior Court (1976) 16 Cal.3d 557, 563-

565), the securing of the bottle while a

search warrant was procured (see People v.

Dalton (1979) 24 Cal.3d 850) would have

been proper, but opening it was not. (Ibid.)

(Compare People v. Lilienthal (1978) 22 Cal.

3d 891, 899.)

//

L/

//

//

1 It is not disputed that the odor

was not smelled until the bottle was opened.

It is not quite so clear from the reporter's

transcript, as I read it, that Officer Pytel

saw the contents through the glass. On

direct examination, he testified simply

that the bottle was "[a] brown coffee-mate

type container, containing Sherman Ciga-

rettes, which emitted the odor of [PCP]

- » -" and that after he "made this observa-

tion of the bottle" appellant was taken

into custody. On cross-examination, he

testified that when he retrieved the bottle

he opened it up and then was able to smell

the odor, and he noted that the bottle had

[Footnote omitted]

Se

Accordingly, I must dissent from the

judgment of affirmance.

COLE, J.*

a label on it covering most of the bottle

and was of dark brown glass. On redirect

examination, the officer testified that

you can see the contents of the bottle

through the glass by holding it up. But

nowhere did the officer testify that he

did in fact hold the bottle up to see the

contents, before he opened it. This

court has called for the bottle and

inspected it, inside of a glassine envel-

ope. The bottle is an ordinary small size

Coffee-Mate container whose wrapper com-

pletely surrounds the glass surface except

for a small space at the top and the bottom.

Holding the bottle up to the light the

outlines of what apparently are cigarettes

can be seen.

*Assigned by the Chairperson of the

Judicial Council.

6.

[ORDER OF SUPREME COURT OF CALIFORNIA

DENYING HEARING]

[CAPTION OMITTED]

May 2, 1980.

Appellant's Petition for Hearing

DENIED.

The Reporter of Decisions is directed

not to publish in the Official Reports

the opinion in the above entitled cause

filed March 3, 1980 which appears at 103 Cal.

App.3d 9. (Cal. Const., Art., VI, section

14; Rule 976, Cal. Rules of Court.)

Clark, J., is of the view that the

Opinion should remain published.

BIRD

Chief Justice