People v. Teresinski ( 1980 )

Opinion

TOBRINER, J.

The People appeal from an order dismissing charges of robbery. The dismissal follows an earlier order suppressing evidence obtained as a result of the search of defendant’s car.

As we shall explain, a police officer, lacking an objectively reasonable basis for suspecting criminal activity, detained defendant’s car. Consequently that detention violates the Fourth Amendment, and both physical evidence of the robbery found in the car and identification testimony procured by exploitation of the illegal detention cannot be admitted into evidence. Because no admissible evidence remained to link defendant to the robbery, we affirm the trial court’s order dismissing the charges.

About 2 a.m., Officer Rocha of the Dixon police force saw an unfamiliar car with three occupants proceeding through the city business district. Because of windshield glare he could not see defendant, the driver, but he thought both passengers were juveniles and surmised that the driver also was a minor. Although the car was proceeding at a lawful speed without any suspicious behavior, the officer signaled the driver to stop. He subsequently explained that he detained the car because “I believed they were juveniles in the car. We have a 10:00 o’clock curfew in Dixon.”

As the car slowed to a stop Officer Rocha observed defendant and the front-seat passenger glance back and reach down. Those gestures led him to believe that the occupants might be hiding alcohol or reaching for a weapon. Defendant alighted from the car, walked toward the police vehicle, and presented his driver’s license. The license verified defendant’s adult status, and in fact only one occupant of the car was a juvenile.

Rocha told defendant to stay at the rear of the car, walked to the driver’s window, and shined his light on the floorboard. He saw a pool of liquid and a beer can under the front seat. Ordering the two passengers out, he then observed a gun holster; and, after questioning, Rocha retrieved a loaded weapon from the floorboard.¹

A subsequent search of the car produced several beer containers, a baggie of marijuana, and a paper bag filled with bills and change. The money was traced to a Seven-Eleven store that had been robbed earlier that night in nearby Woodland. Defendant and his two passengers were arrested on suspicion of robbery. Mr. Cady, the store clerk who witnessed the robbery, identified photographs of defendant and his companions. Later at the preliminary hearing Cady identified defendant in person.

The trial court ruled that the detention was illegal and granted a motion to suppress, as the fruits of an illegal detention, the physical evidence found in the car, the photographic identification, and the subsequent courtroom identification. Since there remained no evidence linking defendant with the robbery, he ordered the charges dismissed; the People appealed.

We recently defined the constitutional standard for measuring the validity of a detention. In In re Tony C. (1978) 21 Cal.3d 888, 893 [148 Cal.Rptr. 366, 582 P.2d 957], we stated: “to justify an investigative stop or detention the circumstances known or apparent to the officer must 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 [citation omitted], to suspect the same criminal activity and the same involvement by the person in question.”

We need only apply that standard to the facts of the present case. The detention here rested upon Officer Rocha’s suspicion that defendant and his comrades were violating a city curfew ordinance.² Contrary to Officer Rocha’s statement, the ordinance does not declare it a crime for minors to be found in public after 10 p.m. It provides that it is unlawful for a minor “to loiter, idle, wander, stroll, or play in or upon the public streets” and other public places between 10 p.m. and 5 a.m. These terms cannot reasonably be construed to encompass defendant’s conduct.

The word “loiter” in particular bears a sinister connotation: it connotes lingering for the purpose of committing a crime. (In re Cregler (1961) 56 Cal.2d 308, 312 [14 Cal.Rptr. 289, 363 P.2d 305].) As the court noted in People v. Horton (1971) 14 Cal.App.3d 930, 933 [92 Cal.Rptr. 666]: “driving along city streets, even at 1:15 in the morning, is not ‘loitering.’” Whether or not the terms “idle, wander, stroll, or play,” when used in a curfew ordinance, also carry a sinister connotation, those terms are equally inapplicable to the present case. Conceivably one may “idle, wander,” or “play” in an automobile, but merely driving along a street in a lawful manner cannot be so described.

In sum, Officer Rocha lacked any objectively reasonable basis to suspect that defendant or his passengers were violating the prohibitory language of the ordinance. Accordingly, his detention of defendant was unlawful under the standards established in In re Tony C, supra, 21 Cal.3d 888, 893.

Although the People have conceded before this court that defendant’s conduct did not violate the curfew ordinance, they nevertheless argue that the detention should be upheld on the ground that the officer’s action was based on a “reasonable mistake of law.” (Cf. Hill v. California (1971) 401 U.S. 797 [28 L.Ed.2d 484, 91 S.Ct. 1106] (mistake of fact); Elder v. Bd. of Medical Examiners (1966) 241 Cal.App.2d 246 [50 Cal.Rptr. 304].) Courts on strong policy grounds have generally refused to excuse a police officer’s mistake of law. (See, e.g., People v. McKelvy (1972) 23 Cal.App.3d 1027, 1036-1037 [100 Cal.Rptr. 661].) We need not decide, however, whether under exceptional circumstances an officer’s reasonable mistake of law might validate police conduct because in this case the officer’s mistake cannot be found reasonable.

The curfew ordinance did not present an obscure or unfamiliar enactment to Officer Rocha, but one that he had enforced on numerous occasions. The plain language of the ordinance clearly does not prohibit a minor from simply being present on the streets of Dixon after 10 p.m., but only prohibits such behavior as “loitering” or “idling” on the streets; the officer’s belief that Dixon had enacted a blanket curfew ordinance should have been dispelled by a simple reading of the terms of the enactment. Moreover, several years before the detention in the present case, the Court of Appeal in construing a similar ordinance explicitly held that driving a car at a normal rate of speed down a public street did not violate the ordinance. (People v. Horton, supra, 14 Cal.App.3d 930.) If we were to find Officer Rocha’s mistake of law reasonable under these circumstances, we would provide a strong incentive to police officers to remain ignorant of the language of the laws that they enforce and of the teachings of judicial decisions whose principal function frequently is to construe such laws and to chart the proper limits of police conduct.

Finally, the Attorney General contends that even though the illegality of defendant’s detention bars use of physical evidence found in his car, the lower court erred in suppressing the Seven-Eleven clerk’s identifications of defendant as a participant in the robbery. The Attorney General further argues that the identifications alone established probable cause and that the order of dismissal therefore should be reversed.

The issue congeals into whether the identification evidence was obtained by “exploitation” of the illegal detention “‘or instead by means sufficiently distinguishable to be purged of the primary taint.’” (Wong Sun v. United States (1963) 371 U.S. 471, 488 [9 L.Ed.2d 441, 455, 83 S.Ct. 407].) In People v. Sesslin (1968) 68 Cal.2d 418, 428 [67 Cal.Rptr. 409, 439 P.2d 321], we explained that “to remove the taint from evidence obtained directly as a result of unlawful police conduct requires at least an intervening independent act by the defendant or a third party which breaks the causal chain linking the illegality and evidence in such a way that the evidence is not in fact obtained ‘by exploitation of that illegality.’”

We find no intervening act in the present case. The officer followed the initial detention with a visual search of the interior of defendant’s car—a search that was illegal because of the illegality of the detention. That visual search led to a more thorough search, which turned up the proceeds of the Seven-Eleven robbery. Relying on that evidence, which we have determined to be the product of an illegal search, the officer arrested defendant and his companions for suspicion of robbery and took them into custody. Cady identified the photographs, and subsequently identified defendant in person. All events followed in immediate, logical and causal progression, without any intervening act which could form a basis for finding that the taint of the illegal detention, search and seizure had been so attenuated that it did not infect the later identification testimony.

The Attorney General relies on cases which have permitted use of evidence illegally obtained in investigation of matters unrelated to the crime of which defendant is charged. (See People v. McInnis (1972) 6 Cal.3d 821 [100 Cal.Rptr. 618, 494 P.2d 690]; Lockridge v. Superior Court (1970) 3 Cal.3d 166 [89 Cal.Rptr. 731, 474 P.2d 683]; People v. Griffin (1976) 59 Cal.App.3d 532 [130 Cal.Rptr. 648].) In each of those cases the defendant had been illegally arrested for an unrelated crime, weeks or months after the charged offense had been committed, and a search or mug shot made in connection with the later unrelated arrest served to link defendant to the charged crime. The courts held the evidence admissible on the theory that it was not derived from exploitation of the illegality.

In the present case, defendant was arrested upon suspicion of the robbery of which he is now charged. As the trial court explained “This is not a case of independent agencies investigating independent crimes, nor of one agency investigating a crime and taking the defendant’s photograph and then forwarding the photograph to another agency investigating a different crime. The investigation by both agencies related to the same robbery and the property taken therein. The investigations were each simultaneous and very closely related in time as well as subject.” Under these circumstances, we agree with the trial court that the identification testimony derived directly from exploitation of the physical evidence discovered as a result of the illegal detention.

The order of dismissal is affirmed.

Bird, C. J., Mosk, J., and Newman, J., concurred.

1 The issues in this case concern the legality of the initial detention. The scope of the search has not been questioned. (Cf. People v. Superior Court (1970) 3 Cal.3d 807 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559].)

2 The ordinance reads: “Sec. 16.2 Curfew—Minors not to be in public after 10:00 P.M.; exceptions.

“It shall be unlawful for any person under the age of eighteen years to loiter, idle, wander, stroll, or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, or other public grounds, public places and public buildings, places of amusement and eating places, vacant lots, or other unsupervised places, between the hours of 10:00 P.M. and 5:00 A.M. of the day immediately following; provided, however, that the provisions of this section do not apply when the person is accompanied by his parent, guardian, or other adult person having the care and custody of the person, or when the person is returning directly home from a meeting, entertainment, recreational activity or dance, or when the person is going directly to or returning directly from work.

“A person under eighteen years may obtain food in a cafe after a meeting, entertainment, recreational activity, dance or work after the hour of 10:00 P.M., but must vacate the premises immediately after consuming the food served and proceed directly home.” (Ord. No. 6, 1950, § 1.)

“Sec. 16.4 Curfew—Minors under eighteen violating curfew regulations.

“Any person under the age of eighteen years violating the provisions of section 16.2 shall be guilty of a misdemeanor and shall be dealt with in accordance with juvenile court law and procedure.” (Ord. No. 6, 1950, § 3.)