People v. Roth

219 Cal. App. 3d 211, 268 Cal. Rptr. 66, 1990 Cal. App. LEXIS 581

• Court: California Court of Appeal
• Decided: March 28, 1990
• Docket: D009011
• Status: Published

Opinions

Opinion

WIENER, Acting P. J.

Following denial of his motion to suppress evidence (Pen. Code, § 1538.5), Gregory Thomas Roth entered a negotiated guilty plea pursuant to People v. West (1970) 3 Cal.3d 595 [91 Cal.Rptr. 385, 477 P.2d 409] to possession of a firearm by a felon (Pen. Code, § 12021). He appeals the denial of his suppression motion, contending the police officers acted illegally in detaining him and patting him down. We agree with the first contention, and reverse.

Factual and Procedural Background

The People’s Evidence

At about 1:20 a.m. on February 7, 1988, reserve Deputy Sheriff Mark Boumpensiero and Deputy Hinton were conducting a security check of closed businesses in the Alpha Beta shopping center in Lakeside. It was a clear night and the temperature was moderate, not too cold. They saw Roth walking in the parking lot, about 30 yards from the Alpha Beta, westbound toward the front of the store. There was no one else in the parking lot and Boumpensiero saw no other cars in the area.

Boumpensiero shined his spotlight on Roth and stopped the patrol car. When the deputy hit him with the spotlight, Roth stopped walking. Both deputies got out of their car. Boumpensiero stood behind the door of the patrol car and asked Roth to approach, saying “I would like to talk to you” or “Come over here. I want to talk to you.” Roth came to the patrol car. Boumpensiero said he would like to know what, if any, business Roth had at that time of the morning or what he was doing in the area. Roth said he was going to the Alpha Beta. After the deputy told him the store was closed, Roth said he was going to look in the Alpha Beta dumpsters for junk.¹

Roth was wearing a heavy, bulky jacket or two jackets. After asking why he was there, Boumpensiero noticed a big bulge in the center of Roth’s chest. For safety reasons, he asked him if he had any weapons. Roth said yes, and started to go for the weapon with his right hand. Boumpensiero said “No, that’s no problem. I’ll take it out for you.” He placed Roth’s hand on the hood of the patrol car, spread-eagled him on the car, and retrieved a framing hammer or ax. He removed Roth’s jacket, then conducted a pat-down and found an unloaded .22 automatic and three knives.

Boumpensiero arrested Roth. A further search disclosed a baggie containing three-tenths of a gram of methamphetamine, three syringes, ammunition shells, and a baggie containing a green leafy substance.

Defense Evidence

Roth testified he was coming from the other side of Lakeside, from an apartment about three blocks from the lake, and was headed to his sister’s house. He was wearing two jackets because the weather was so cold.² There were at least half a dozen cars in the parking lot, although no one was out walking. As he was walking through the Alpha Beta parking lot, he saw the patrol car pull in at the other end of the lot and come straight toward him, stop about 20 feet away, and shine a spotlight on him. He froze because it seemed like the natural thing to do. The two deputies jumped out of the car, one coming straight to him and the other staying behind the car with his hand on his gun. The deputy asked him if he had any weapons. He said yes. He had a framing hammer in his jacket. The deputy took him to the patrol car and had him put his hands on the hood. He did not explain he was conducting a security check of the area, and did not ask Roth what he was doing until after Roth was in the patrol car.

Discussion

Roth contends the officers lacked sufficient grounds for detaining him and the patdown was unjustified.

Circumstances short of probable cause to arrest allow a police officer to stop and detain a person briefly for questioning and limited investigation. (In re Tony C. (1978) 21 Cal.3d 888, 892 [148 Cal.Rptr. 366, 582 P.2d 957].) A detention occurs when a reasonable person would believe he or she is not free to leave. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 789-790 [195 Cal.Rptr. 671, 670 P.2d 325].)

A detention is justified where “the circumstances known or apparent to the officer . . . include specific and articulable facts causing him to suspect that (1) some activity 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 in a like position, drawing when appropriate on his training and experience . . . , to suspect the same criminal activity and the same involvement by the person in question.” (In re Tony C, supra, 21 Cal.3d at p. 893, fn. omitted.) Mere curiosity, rumor, or hunch is insufficient despite the officer’s good faith. (Ibid.)

Viewing the facts in the light most favorable to respondent (People v. Berkeley (1978) 88 Cal.App.3d 457, 459, fn. 1 [151 Cal.Rptr. 686]), a detention occurred when Boumpensiero shined his spotlight on Roth, stopped the patrol car, both deputies got out, and Boumpensiero stood behind the car door, commanding Roth to approach so the deputy could speak to him.³(Cf. People v. Bailey, supra, 176 Cal.App.3d at p. 402.) In this situation, a reasonable person would not believe himself or herself free to leave. (Cf. id. at pp. 405-406.)

The sole ostensible ground for the detention was Roth’s early morning presence in the deserted parking lot of a shopping center whose businesses were closed. The circumstances were devoid of indicia of his involvement in criminal activity. Indeed, here there was patently less to justify the detention than in People v. Aldridge (1984) 35 Cal.3d 473 [198 Cal.Rptr. 538, 674 P.2d 240], where the defendant’s apparent attempt to avoid the police at night in “an area of continuous drug transactions” was insufficient to warrant a detention. (Id. at p. 478.) Similarly, in People v. Wilkins (1986) 186 Cal.App.3d 804 [231 Cal.Rptr. 1] the police illegally detained a defendant based on his furtive nighttime behavior in a high crime area. (Id. at p. 811.) Conversely, in Santos v. Superior Court (1984) 154 Cal.App.3d 1178 [202 Cal.Rptr. 6] the detention was lawful. There, in spite of a municipal ordinance prohibiting loitering around closed businesses, at 10 p.m. the defendant was standing in a closed parking lot in a high crime area with two other individuals who were exchanging an unidentified object. (Id. at pp. 1180-1182, 1184.) The only business open nearby was a liquor store with a different parking lot. (Id. at p. 1181.) The evidence here, on the other hand, is qualitatively less.

In light of our conclusion the detention was illegal, we need not reach Roth’s contention the patdown was improper.

Disposition

The judgment is reversed and the cause remanded to the trial court. Upon a motion to withdraw Roth’s guilty plea within 30 days of the finality of this decision, the trial court is directed to vacate the guilty plea, reinstate all charges and allegations in the information, and proceed in accordance with the views expressed in this opinion. If Roth fails to make a timely motion or waives the right to withdraw his plea, the trial court is directed to reinstate the judgment.

1 Alpha Beta’s trash cans were at the southwest side of the store.

2 Roth admitted, however, neither deputy was wearing a jacket.

3 The trial court found: “[T]he officer was making some type of a detention. There can be no doubt about that because he issued a command to him.” We accept the finding there was a command and, exercising our independent judgment, agree with the trial court there was a detention. (See People v. Bailey (1985) 176 Cal.App.3d 402, 406 [222 Cal.Rptr. 235]; People v. Franklin (1987) 192 Cal.App.3d 935, 940 [237 Cal.Rptr. 840].)