People v. Teresinski

MANUEL, J.

I dissent. I would reverse the order of dismissal and direct the trial court to deny the motion to suppress evidence. In my opinion Officer Rocha did not lack an objectively reasonable basis for suspecting that defendant or his passengers were violating the Dixon curfew ordinance (§ 16.2, Dixon City Code). Even if the detention were unlawful, however, the Dixon police officer’s conduct does not taint nor require the exclusion of the identification testimony of Colin Cady, the victim of the Woodland robbery, or the exclusion of the photographs taken by the Woodland police during defendant’s booking on the robbery charges.

Circumstances short of probable cause to make an arrest may justify an officer stopping pedestrians or motorists for questioning. (In re Tony C. (1978) 21 Cal.3d 888, 892 [148 Cal.Rptr. 366, 582 P.2d 957]; People v. Harris (1975) 15 Cal.3d 384, 388-389 [124 Cal.Rptr. 536, 540 P.2d 632]; Cunha v. Superior Court (1970) 2 Cal.3d 352, 355 [85 Cal.Rptr. 160, 466 P.2d 704]; Irwin v. Superior Court (1969) 1 Cal.3d 423, 426-427 [82 Cal.Rptr. 484, 462 P.2d 12]; People v. Mickelson (1963) 59 Cal.2d 448, 450 [30 Cal.Rptr. 18, 380 P.2d 658]; People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 95-96 [41 Cal.Rptr. 290, 396 P.2d 706].) As stated in Tony C., the application of the rules is based on a determination of “‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ (Terry v. Ohio [1968] 392 U.S. at p. 19 [20 L.Ed.2d at p. 904]).” (21 Cal.3d at p. 892; italics added.)

In the present case there was an abundance of objective facts that justified Officer Rocha’s honest and strong belief that the occupants of the vehicle might be in violation of the curfew ordinance. (See In re Nancy C. (1972) 28 Cal.App.3d 747 [105 Cal.Rptr. 113].) He observed a car he did not recognize, apparently occupied by juveniles, driving be*466tween 2 and 3 a.m. in the business district of a relatively small town. Although he knew that the curfew law contained a provision exempting juveniles traveling to or from “some lawful business or place or dance,” he had no way of determining whether the exception applied without detaining and questioning the occupants of the vehicle. In light of the strong possibility that, the exception did not apply, such detention and questioning was fully justified. In my opinion, there can be no question of “the reasonableness in all the circumstances of the particular governmental invasion.”

Even if Officer Rocha acted improperly in detaining defendant and his passengers in Dixon, however, only the physical evidence taken from the vehicle should be suppressed. There is no basis whatever for also suppressing the robbery victim’s identification of defendant as the person who, with two companions, assaulted and robbed him in the Seven-Eleven store in Woodland. That testimony of the victim Cady was obtained by means sufficiently distinguishable so as to be purged of the primary taint of any illegality that might possibly have inhered in the initial detention. (Wong Sun v. United States (1963) 371 U.S. 471, 487-488 [9 L.Ed.2d 441, 455, 83 S.Ct. 407]; Lockridge v. Superior Court (1970) 3 Cal.3d 166 [89 Cal.Rptr. 731, 474 P.2d 683].) Moreover, since that testimony at the preliminary hearing was alone sufficient cause to hold defendant to answer for robbery, the trial court erred in dismissing the charges.

In ruling on the suppression motion, the trial court applied a “but for” test and suppressed not only the physical items found in the car but also all other evidence connecting defendant with the Woodland robbery: “In the case at bar, but for the illegal stop the property of the defendants would not have been seized, they would not have been arrested, their pictures would not have been taken, the witness Cady would not have identified them by name from the mug shots, they would not have been in court and Cady would not have made an in-court identification of them.”

A determination, however, that the evidence would not have been obtained “but for” an antecedent illegal detention is only the start of the inquiry. Not “all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that ille*467gality or instead by means sufficiently distinguishable to be purged of the primary taint.’...” (Wong Sun, supra, 371 U.S. at pp. 487-488 [9 L.Ed.2d at p. 455].)

In Lockridge v. Superior Court, supra, 3 Cal.3d 166, 170, after determining that the challenged evidence would not have been obtained “but for” illegal police conduct, this court nevertheless concluded that the police connection of defendant to the charged robbery through the illegal discovery of a gun was not sufficient to characterize the testimony of the victim of the robbery as “‘come at by exploitation of that illegality.’ (Wong Sun, supra, 371 U.S. 471, 488 [9 L.Ed.2d 441, 455]).”

If the primary taint was purged in Lockridge, a fortiori it was also purged in this case. In Lockridge a gun was recovered during an unlawful search; the serial number of the gun led the police to the file of an unsolved robbery and to the victims of that robbery which had taken place two and a half years before; the victims identified photographs of the defendants and, after robbery charges were filed, made a courtroom identification of them at the preliminary hearing. The trial court suppressed the gun but allowed the testimony of the witnesses.

There was no evidence in Lockridge that without the lead supplied by the gun the police investigation would have connected the defendants with the robbery. We nevertheless refused to characterize the victims’ testimony as obtained by exploitation of the illegal police conduct. We reasoned that the victims were already known to the police as victims of the unsolved robbery; their gun was found as the result of a search in the course of an investigation of a totally unrelated crime; that search was not directed toward discovery of witnesses such as the robbery victims and it did not lead to those victims as the source of further evidence of the crime the police were investigating when they illegally obtained the robbery victims’ gun. We held that it was “pure happenstance” that during the investigation of another crime the police came across the gun taken in the robbery. We stated that the purpose of the exclusionary rule, to deter unlawful police conduct, was adequately served by suppressing the gun and the evidence of the other crimes the police were investigating: “That purpose would not be further advanced by suppressing the testimony of the known victims of the... robbery; testimony that unquestionably would have been admissible to establish petitioners’ guilt of that crime, but for the chance disclosure of their connection therewith during a wholly unrelated police investigation.”

*468This court applied the same principles in People v. McInnis (1972) 6 Cal.3d 821 [100 Cal.Rptr. 618, 494 P.2d 690] to permit the introduction into evidence of “mug shots” taken after an illegal arrest and used to secure a photographic identification of defendant for a robbery unrelated to the arrest. We held that the photographic identification and the in-court testimony of the robbery victims were not tainted by the previous illegal arrest. In McInnis, as in the instant case, two independent agencies were involved. As Justice Mosk pointed out, “The fact that a tenuous link was forged between the illegal arrest and the robbery is more clearly ‘pure happenstance’ in the case at bar than in Lockridge.” (6 Cal.3d at p. 825; see also People v. Griffin (1976) 59 Cal.App.3d 532 [130 Cal.Rptr. 648].)

The circumstances of the present case are very similar to those of Lockridge. It was “pure happenstance” that in the course of the detention of defendant and his passengers for investigation of the curfew violation the Dixon police found the coins taken in the Seven-Eleven robbery in Woodland. Officer Rocha was not looking for evidence of the robbery when he detained defendant; at that time Officer Rocha was unaware of the Woodland robbery.

The trial court in the instant case sought to distinguish Lockridge. The court said: “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 of 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.” This analysis mischaracterizes the record.

. The Dixon and Woodland Police Departments are independent agencies and they were investigating independent crimes, a possible curfew violation in Dixon and a robbery in Woodland. However, that independent agencies were involved is not the crucial factor; neither is the time span controlling. The thrust of Lockridge is that when a crime or, more precisely, victims of crime become known to the police absent illegal conduct on their part and thereafter the defendant’s connection with the crime is discovered by chance, the victim-witnesses are not tainted by the circumstances of the chance discovery.

*469An illustration of the tainting of a victim-witness is provided by People v. Huff (1978) 83 Cal.App.3d 549 [147 Cal.Rptr. 316], where the record failed to establish that the police would have learned of the charged burglary and defendant’s connection with it by means independent of a search which followed an illegal arrest for an unrelated robbery. Unbeknownst to the store owner in Huff, defendant left his shop with four suits. The owner checked the slacks rack after defendant left and satisfied himself that nothing was missing. He discovered the loss of the four suits only after the police telephoned him and he went to the police department and was shown the four suits bearing tags from his store. “It is a matter of pure speculation whether Mr. Crosetti [owner] would have discovered his loss in the absence of the telephone call from the police. Even assuming that he would have discovered the loss at some point in time, it remains a matter for speculation whether he would have connected defendant with that loss and whether he would have reported the loss to the police.” (83 Cal.App.3d at p. 561.)

In the instant case, not only were the Woodland police cognizant of the Seven-Eleven robbery; within minutes of the robbery they obtained the description of the robbers from Cady, the victim; they also had the observations of a passerby who observed three young men leaving a car and entering the Woodland store at about the time of the robbery. The informant’s description of the young men conformed with that given by Cady and the description of the vehicle conformed substantially with that of the vehicle driven by defendant. The information formed part of the bulletin that issued from Woodland just minutes after the Dixon stop and we cannot say, as we did in Lockridge, that without the lead supplied by the unlawful Dixon detention the police would not have connected defendant to the robbery in Woodland.

In any event, Lockridge is dispositive of the instant case insofar as the admissibility of Cady’s testimony is concerned. Likewise, Mclnnis is dispositive of the issue concerning the admissibility of the photographs and Cady’s photographic identification of defendant.

The photo taken by the Woodland police is no more tainted by the unlawful detention than is Cady’s testimonial evidence; both the photo/ photo identification and the testimonial evidence result from the “pure happenstance” discovery of the defendant’s connection with the Woodland robbery and here, as in Lockridge and Mclnnis, the purpose of the *470exclusionary rule would not be served by suppressing either item of evidence.

Clark, J., and Richardson, J., concurred.

Appellant’s petition for a rehearing was denied March 20, 1980. Clark, J., Richardson, J., and Manuel, J., were of the opinion that the petition should be granted.