Opinion
Hearing Granted and Retransferred to Court of Appeal March 5, 1981.
Opinions on pages 742-788 omitted.
[168 Cal.Rptr. 864]Susan L. Wolk, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Gary R. Hahn and Robert D. Breton, Deputy Attys. Gen., for plaintiff and respondent.
L. THAXTON HANSON, Associate Justice.
Rosalyn Ruth Phillips appeals her conviction pursuant to guilty plea of importing marijuana into the State of California (Health & Saf. Code, § 11360, subd. (a)).
FACTS
While Officer Hub Mayer was at the National Airlines building in Houston, Texas, on April 10, 1979, he saw the defendant in conversation with a man and looking very nervous. When the man opened up the small suitcase that he was carrying, Officer Mayer approached the couple and saw in plain view within the suitcase several loose preludin tablets. The man closed the suitcase after rummaging through it and the defendant went to the restroom where she remained about five minutes.
Shortly after defendant Phillips returned from the restroom, the man departed and boarded a National Airlines flight to Florida. The defendant appeared watchful and suspicious of Officer Mayer, who was dressed in plain clothes. After the man departed, she returned to the restroom and left again just in time to board another National Airlines flight to Los Angeles. She was at the time carrying a brown leather jacket and a small brown tote bag.
[168 Cal.Rptr. 865]Officer Mayer promptly called Officer Roy Kaiser who was assigned to the narcotics division of the Los Angeles Police Department at the Los Angeles International Airport and related his observations concerning defendant Phillips. He described the defendant specifically, informed Officer Kaiser that in his opinion she was possibly in the possession of narcotics or dangerous drugs and requested him to continue the surveillance and investigation of defendant upon her arrival in Los Angeles.
Officers MacBride and Kaiser at the Los Angeles airport awaited the arrival of the National Airlines flight from Houston, Texas. Officer Kaiser identified defendant Phillips as she disembarked from the airplane. She walked to the baggage area, picked up a brown suitcase from the carousel and started to walk across the street to a taxi island curb. As she stood at the taxi island, the officers approached her, showed her their badges and requested identification. The defendant displayed a California driver's license to the officers. Officer Kaiser explained that they were conducting a narcotics investigation and that they had reason to believe she had drugs in her possession. He asked whether she had any drugs with her. Defendant Phillips responded, "Yes."
Officer Kaiser then asked the defendant if she would mind if he searched her suitcase and purse. She said: "Go ahead." Because of the confusion in the vicinity with people milling around, the officer asked defendant if she would mind going to his office across the street, about 100 yards from where they were standing, and the defendant agreed to accompany him. They walked together to the airport office and upon arrival defendant Phillips unlocked her suitcase. When Officer Kaiser opened it, he found two clear plastic baggies, each of which contained a green plant material which he believed to be marijuana.
Defendant Phillips originally pleaded not guilty to the charges. However, after the court denied her 1538.5 motion to suppress the evidence, she withdrew her plea of not guilty and pleaded guilty as charged. Criminal proceedings were suspended and her application for probation was granted on the condition, inter alia, that defendant spend the first six months of the three-year period in county jail and that she cooperate with her probation officer in a plan for psychiatric counseling. She appeals the judgment of conviction (order granting probation).
ISSUES
Defendant Phillips contends (1) that the court improperly denied her 1538.5 motion because the police officer lacked probable cause to detain her and she did not give voluntary consent to the search of her suitcase; and (2) that the trial court at the time of her sentencing improperly considered facts outside of the record.
DISCUSSION
I
The record does not support the contentions of defendant Phillips that the police officers lacked probable cause and that her consent was not voluntarily given. It is well established that in order 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. He must subjectively entertain such a suspicion and 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. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.) A warrantless detention for reasonable investigative purposes is justified when there is a rational belief of criminal activity with which a suspect is connected (People v. Bower (1979) 24 Cal.3d 638, 644, 156 Cal.Rptr. 856, 597 P.2d 115). Probable [168 Cal.Rptr. 866] cause for defendant's arrest was not required to justify her detention by the officers.
Officer Kaiser at the time he made the decision to detain defendant had information that defendant Phillips was seen in the company of a man who was carrying Preludin tablets in his suitcase at the Houston airport; she appeared nervous and watchful of other persons at that time; she appeared to be suspicious of Officer Mayer's activity; and she twice entered the women's restroom displaying signs of apprehension and immediately boarded her Los Angeles flight when she left the restroom the second time. An experienced narcotics officer develops a keen awareness of those unusual and suspicious activities which suggest that a suspect is engaged in criminal activity and this is of value in predicting the safety of law abiding citizens (People v. Peterson (1978) 85 Cal.App.3d 163, 168-169, 149 Cal.Rptr. 198). The set of circumstances known to Officer Kaiser taken together justified him in detaining the defendant for questioning.
No violation of defendant's Miranda rights was involved in this questioning since defendant was not in custody and there was no interrogation within the meaning of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602. (See, e. g., People v. Carter (1980) 108 Cal.App.3d 127, 130-131, 166 Cal.Rptr. 304.)
There is no suggestion in the record that the consent given by defendant Phillips to the search of her suitcase was invalidated by undue influence exercised by police officers or by her submission to authority. A consent which is induced by illegal police conduct, such as an illegal detention or arrest, standing alone is a significant circumstance but is not conclusive on the issue of voluntariness (People v. James (1977) 19 Cal.3d 99, 109, 137 Cal.Rptr. 447, 561 P.2d 1135). The activity of the police officers in the case at bench was both reasonable and justified, and in the absence of police illegality, it is necessary for the defendant to show that her consent was the result of coercive circumstances.
There were no coercive circumstances in the present case since Officer Kaiser courteously requested that defendant show him some identification, asked whether she had any drugs, and further requested her consent to search her suitcase and purse. There is no suggestion that the defendant at any point resisted or objected. She freely and voluntarily accompanied the officers to the airport police office, took out her key and unlocked her suitcase without being requested to do so.
The trial court's denial of the 1538.5 motion is supported by substantial evidence (People v. James, supra, 19 Cal.3d 99, 107, 137 Cal.Rptr. 447, 561 P.2d 1135).
II
Defendant Phillips finally contends that the remarks of the court at the sentencing hearing disclosed bias and the consideration of matters outside the record which resulted in the imposition of an inappropriately severe sentence. She claims that the court improperly considered "the potential sentencing of Judge Halvonik" at the time of her sentencing and that expressions of bias by the court rendered her sentencing fundamentally unfair. Defendant was placed on three years probation on various conditions including, inter alia, that she spend six months in county jail with the remainder of the sentence suspended. She apparently believes that in view of mitigating circumstances the county jail sentence was not warranted.
The granting or denial of probation and the severity of the sentencing lie within the court's discretion, and in the absence of a showing that the court's determination was arbitrary or capricious and engaged in without a weighing of the facts, there is no abuse of that discretion. (People v. Navarro (1972) 7 Cal.3d 248, 258-259, 102 Cal.Rptr. 137, 497 P.2d 481.) The court in exercising its discretion is required to consider all material facts and applicable legal principles. (People v. Surplice (1962) 203 Cal.App.2d 784, 791, 21 Cal.Rptr. 826.)
[168 Cal.Rptr. 867]The court in the present case read and considered the comprehensive probation report, found matters in mitigation, and, apparently persuaded by defendant's declaration that she would not sell marijuana, granted her probation. The record discloses neither bias nor improper consideration of extraneous factors by the trial court. Defendant makes no claim that inaccurate information relative to her prior history was presented to or considered by the court, which might render her sentence improper. (See, e. g., People v. Peterson (1973) 9 Cal.3d 717, 724-728, 108 Cal.Rptr. 835, 511 P.2d 1187; People v. Calloway (1974) 37 Cal.App.3d 905, 908, 112 Cal.Rptr. 745.) The comments of the court upon which defendant relies do not constitute grounds for a new sentencing hearing since there is no indication that the court relied on material false information which defendant was given no opportunity to correct. (In re Beal (1975) 46 Cal.App.3d 94, 100, 120 Cal.Rptr. 11.)
In fact, the court heard arguments of counsel and considered, inter alia, the fact that defendant had no prior record, that she had excellent school grades, that her age was in her favor, that she was employed full time, as well as that both her former husband and the man she met in Houston were heavy in drugs, and that defendant had experimented with cocaine and regularly used marijuana. On the basis of these and other factors the court found "circumstances in mitigation of the punishment prescribed by law, or that the ends of justice would be subserved by probation." Thus the court exercised an appropriately informed discretion based on the merits and arising out of a fundamentally fair hearing. (People v. Peterson, supra, 9 Cal.3d 717, 725-730, 108 Cal.Rptr. 835, 511 P.2d 1187.)
We feel compelled to comment on what we construe in the dissenting opinion as a conclusion that since the determination of whether consent is voluntary or coerced must take into account the totality of the circumstances and the defendant's "sex was female and her racial identity was black," ("a black woman ") (original italics), her consent to search is invalid because it was given under submission to an assertion of authority by two male officers.
Seeking legal support for this proposition the dissenting opinion seizes upon Mr. Justice Marshall's dissent in Schneckloth v. Bustamonte (1973) 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, and alludes to the "great deal of friction in our society between the police and the black community." The dissenting opinion leaps to the unsubstantiated conclusion that "this relationship of friction is such that the average black person, including the female black defendant in the instant case, does not reasonably believe that he or she has any option or choice to withhold a consent to search requested by a law enforcement official," especially "a black woman ". (Original italics.) The dissent then seeks to fashion a special rule for black suspects which is not applicable to the general population, namely: "that a failure of a police officer to expressly advise a black suspect-male or female-that there is a right to refuse a requested consent to search renders the consent involuntary as a matter of law." The logical inference is that were the suspect of any other race or color, such as a citizen of Caucasian, Asian or Oriental ancestry, a different principle would apply.
We reject such a proposition of law as being blatantly and patently unconstitutional as an abridgement of the Equal Protection Clause as to all races other than black.
It is absolutely fundamental to our system of justice that all law, especially criminal law, be equally applied to all citizens without regard to race, color, creed or sex and that no preferential treatment should be afforded by reason of such distinguishing characteristics. In fact, in our view, such selective treatment as advanced in the dissenting opinion would not only be an insult to the intelligence and dignity of the black community but would be completely unacceptable to the general public. Moreover, in the instant case for all we know the police officers may also have been of African ancestry. We acknowledge that the [168 Cal.Rptr. 868] People in their pursuit of justice need to be sensitive to the interests of citizens of various sexes and colors. It does not, however, appear reasonable for the court to make the specific combinations of color and sex of officer and suspect the controlling variables in the dispensation of justice.
The dissenting opinion alludes to the above language as "high-sounding rhetoric and hyperbole" and points to the "affirmative action" programs apparently to justify a differentiated treatment of suspects by law enforcement officers based on color or sex. Preferential "affirmative action" programs, such as in the areas of school desegregation, employment discrimination and sex discrimination all present a situation drastically different from the issues raised in the instant case in the field of law enforcement.
The dissenting opinion's proposed specialized treatment of blacks based on color and sex clearly violates the Equal Protection Clause as to other citizens. We point to the language in the majority opinion in the United States Supreme Court case of University of California Regents v. Bakke (1978) 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750, in which Mr. Justice Powell states: "(T)he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." (Id., at pp. 289-290, 98 S.Ct. at p. 2748.) "(P)referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids. (Id., at p. 307, 98 S.Ct. at p. 2757.) "(P)referential programs (treatment) may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection (treatment) based on a factor having no relationship to individual worth. (Citation.) " (p. 298, 98 S.Ct. p. 2753) and such "(d) isparate constitutional tolerance of such (special) classifications well may serve to exacerbate racial and ethnic antagonisms rather than alleviate them. (Citation.) " (Id., at pp. 298-299, 98 S.Ct. at p. 2753.)
The color of the defendant in the case at bench was relevant only insofar as it constituted an element in her identification from the description transmitted from Texas. The record discloses no basis for assuming that the officers who detained the black female defendant engaged in any conduct from which it may be inferred that they differentiated their treatment of suspects on the basis of color or sex.
Applying the law equally without regard to skin pigmentation or sex, we repeat "there is no suggestion in the record that the consent given by defendant Phillips to the search of her suitcase was invalidated by undue influence exercised by police officers or by her submission to authority."
DISPOSITION
The judgment (order granting probation) is affirmed.
Assigned by the Chairperson of the Judicial Council.
JEFFERSON, Acting Presiding Justice, dissenting.
Retired Presiding Justice of the Court of Appeal, sitting under assignment by the Chairperson of the Judicial Council.
I dissent.
In this case, the majority rejects the two contentions made by defendant as being untenable. One contention is that the court improperly denied the suppression-of-evidence motion made pursuant to Penal Code section 1538.5. The basis of this contention is that the police officer lacked any reasonable suspicion to detain defendant and, also, that she did not give a voluntary consent for the search of her suitcase. Defendant's second contention is that the trial court erred in pronouncing sentence because facts outside of the record were improperly considered.
I find that both of these contentions have substantial merit and warrant a reversal of the judgment of conviction. [168 Cal.Rptr. 869]
I
The Officer's Warrantless Detention of Defendant Constituted a Constitutionally Impermissible Detention
It is my view that the evidence which defendant sought to suppress was evidence which falls under the category of fruit of the poisonous tree of a constitutionally impermissible detention. (See Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.) It was the constitutional duty of the trial court, therefore, to grant defendant's suppression-of-evidence motion rather than to deny it.
I agree with the majority that the constitutional standard for measuring the validity of a police detention that is short of an actual arrest is that set forth in In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957. It is worthy of note that this constitutional standard was more recently emphasized by our high court in People v. Teresinski (1980) 26 Cal.3d 457, 162 Cal.Rptr. 44, 605 P.2d 874.
Thus, the Teresinski court observed: "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.' " (Teresinski, supra, 26 Cal.3d 457, 461, 162 Cal.Rptr. 44, 605 P.2d 874.)
It is my view that Officer Kaiser's conduct in the case before us cannot possibly be equated with conduct which satisfies the requirements set forth in Tony C. and Teresinski. Here, Officer Kaiser had neither "specific" nor "articulable" facts which caused him to suspect either (1) that some activity relating to crime had taken place or was occurring or about to occur or (2) that the defendant who was stopped and detained was involved in any such activity.
I agree with the majority that all of the information which Officer Kaiser possessed was information which came from Officer Mayer's telephone call from Houston, Texas, to Officer Kaiser in Los Angeles. Thus, Officer Mayer informed Officer Kaiser in this telephone call that he, Officer Mayer, had seen defendant conversing in the Houston airport with a male who opened a suitcase in plain view of anyone who desired to look into it; that Officer Mayer approached close enough to the couple to see into the open suitcase and there saw several loose preludin tablets in the suitcase. It is conceded that these tablets fall into the category of contraband-restricted drugs. Officer Mayer further told Officer Kaiser that this male rummaged around in the suitcase and then finally closed it.
Officer Mayer did not observe, nor did he say he observed, the male in question hand any drugs or narcotics or any kind of object from the suitcase-or otherwise-to defendant, or that defendant transferred any paper or object to the male in question. Upon closing the suitcase, the defendant left the location and went into a nearby restroom for approximately five minutes at the most. Upon returning from the restroom, defendant walked back to the location where the male was standing, and conversed with him again. Shortly thereafter, the male departed and boarded a flight to Florida.
Officer Mayer further told Officer Kaiser that the defendant appeared to look in his direction several times, appeared to be "somewhat " suspicious of the activity of Officer Mayer who was in plain clothes; that she entered the same restroom a second time. Upon exiting from the restroom the second time, defendant boarded a flight to Los Angeles. During all of this observation period, defendant was simply [168 Cal.Rptr. 870] carrying a jacket and a small tote bag. Officer Mayer informed Officer Kaiser that he wanted a surveillance of defendant to continue upon her arrival in Los Angeles as he felt that she was possibly in the possession of narcotics or dangerous drugs.
It was solely on the basis of this information from Officer Mayer that Officer Kaiser placed defendant under surveillance as she got her bag from the baggage carousel and ramp and then proceeded to exit the terminal and stand in the taxi island.
Officer Kaiser testified that he then confronted defendant at the taxi island-displaying his police identification and stating that he was a police officer. At the time of this confrontation, Officer Mayer had along with him another police officer-Detective MacBride. Kaiser said he then asked defendant if she would mind showing him some identification. Defendant complied by handing to Officer Kaiser a California Driver's License. There is no indication in the record that this identification document was in any way irregular.
After receiving the California Driver's License from defendant, Officer Kaiser then told defendant that he "was conducting a narcotics investigation, and that I had information to believe that she was possibly carrying narcotics; and I asked her if she had any drugs with her." The defendant replied in the affirmative and Kaiser then asked the defendant if he could look through her suitcase and search her purse. Officer Kaiser said defendant replied: "Go ahead." Kaiser then requested the defendant to come to the office where he would conduct the search. The office was across the street in the center of the airport, approximately 100 yards from the taxi stand. Defendant and the two officers then walked to the airport office, where a search of the suitcase by the two police officers revealed the presence of marijuana in the defendant's suitcase.
The majority tells us that an experienced narcotics officer develops a keen awareness of unusual and suspicious activities which suggest that a suspect is engaged in criminal activity, and that this is of value in predicting the safety of law-abiding citizens. I consider this view of the majority to constitute a patent misreading of observations made by the In re Tony C. court. It is true that the language used by the In re Tony C. court is to the effect that, in determining whether a police officer possessed objective information to cause him to reasonably suspect a detained person of having engaged in criminal activity, we may take into consideration the factor that such police officer is entitled to draw upon his training and experience-but only "when appropriate" to do so.
I deem it of considerable significance that the In re Tony C. court permits the use of an officer's training and experience in determining the objective reasonableness of his suspicions about criminal activity only when such training and experience are appropriate under the circumstances. In the case at bench the so-called experience consists of assumptions of Officer Mayer drawn from the fact that he observed the defendant talking with a male who opened a suitcase which revealed some dangerous drugs in plain view while this male rummaged through the suitcase as if looking for something else. But the officer observed no interchange of any objects or items of any kind whatever between the defendant and the male possessor of the suitcase, although this male and the female defendant talked twice with each other within a space of a few minutes.
Is it appropriate or reasonable for a police officer to assume, based on any prior experience, that defendant was engaged in the illegal activity of being in possession of narcotics or dangerous drugs simply because she was talking with an individual who inadvertently, or, even openly, revealed that he was in the possession of dangerous drugs while searching in his open suitcase for some other objects? I emphatically think not. To consider that Officer Mayer had been involved in law enforcement experience which made it "appropriate" or "reasonable" for him to have a suspicion that defendant was engaged in the criminal activity of possessing narcotics or other contraband [168 Cal.Rptr. 871] is as farfetched and reprehensible as permitting a determination of a defendant's guilt of some crime by reason only of such defendant's association with one who is guilty of committing a criminal offense. To use this kind of observation-supposedly based on experience-as a basis for suspecting that defendant herself was in possession of contraband or narcotics is patently unreasonable and inappropriate. It thus makes the subsequent detention of defendant a detention predicated on nothing more than unadulterated surmise, suspicion and speculative reasoning of the rankest sort.
The so-called nervousness and watchful looks of an individual represents a belief by a police officer which no more connotes criminal activity than does a citizen's presence in an area known as a high-crime area. As pointed out by the Tony C. court: "Nor did the situation become suspicious simply because Officer Joy had been told that several burglaries had occurred in the neighborhood. It is true that a number of decisions have given weight to the fact that the stop or detention took place in a 'high crime area.' (Citation.) But the justification is so easily subject to abuse that this fact alone should not be deemed sufficient to support the intrusion. 'To hold that police officers should in the proper discharge of their duties detain and question all persons in that location would for practical purposes involve an abrogation of the rule requiring substantial circumstances to justify the detention and questioning of persons on the street.' " (In re Tony C., supra, 21 Cal.3d 888, 897, 148 Cal.Rptr. 366, 582 P.2d 957.) (Emphasis added.)
So, in the case at bench, the justification that defendant looked nervous and suspicious "is so easily subject to abuse" that it cannot form any part of substantial circumstances to justify a detention as that involved here.
It is also of significance that Officer Mayer made no effort to detain defendant in Houston but simply advised Officer Kaiser to continue a surveillance of defendant. This indicates that Officer Mayer did not believe that he had sufficient suspicions to make a detention but that additional activity on defendant's part was needed to constitute substantial circumstances to justify a warrantless detention of defendant.
In addition, other alleged suspicious activity by defendant falls into this same category of pure hunch, surmise and unreasonable conjecture and speculation. According to Officer Kaiser, Officer Mayer told him over the telephone that the defendant appeared nervous and watchful of him and other persons at the time she was talking with the male with the suitcase and that she entered the women's restroom on two occasions with only a short time in between. How can entering a restroom twice after a conversation with another person with no transaction occurring between them indicate to an experienced officer that the lady entering the restroom was in possession of contraband? What possible kind of experience can a police officer have which tells him that persons entering restrooms are not doing so to carry out the bodily functions for which restrooms are provided?
The majority embellishes upon the record in stating that defendant "twice entered the women's restroom displaying signs of apprehension." There is no testimony in the record to support this observation of the majority.
There is absolutely nothing in this record to sustain the majority's holding that Officer Mayer or Officer Kaiser was "objectively reasonable" in entertaining a suspicion that defendant was ever in the possession of narcotics or other contraband. If a police officer is permitted to use his so-called expertise, experience, and trained observations in the case at bench to constitute an "objectively reasonable" suspicion that defendant was in the possession of narcotics or other contraband, such use defies all common experience and, unequivocally, should summarily be rejected by this court.
The subjective and unreasonable belief by Officer Kaiser-based on statements from Officer Mayer-is not unlike the officer's belief that was considered in In re Tony C. There, an officer believed that a minor proceeding along a public street during school [168 Cal.Rptr. 872] hours was, ipso facto, bent on committing burglaries-felony offenses. The officer's theory, said the In re Tony C. court, "would treat every minor truant as a suspected thief, burglar, or worse; yet the prosecution made no attempt to prove, by statistics or otherwise, the validity of so startling an inference." (In re Tony C., supra, 21 Cal.3d 888, 897, 148 Cal.Rptr. 366, 582 P.2d 957; fn. omitted.) In the case before us, the validity of the inference that defendant was engaged in criminal activity is equally as startling and invalid as that mentioned by the In re Tony C. court. As in Tony C., so here, the alleged validity of so startling an inference is not supported by any statistics or other data offered by the prosecution.
The record before us establishes unerringly that Officer Kaiser did not possess any objectively reasonable belief that some criminal activity had already occurred, was about to occur, or that defendant (Phillips) was "involved in that activity." (In re Tony C., supra, 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.) (Emphasis added.)
The majority cites People v. Peterson (1978) 85 Cal.App.3d 163, 168-169, 149 Cal.Rptr. 198, in seeking to uphold the validity of Officer Kaiser's actions and concludes that such action by an experienced narcotics officer is of value in protecting the safety of law-abiding citizens. I suggest that law-abiding citizens can have no safety in reliance upon their right of privacy which is guaranteed against government intrusion by the Fourth and Fourteenth Amendments to the United States Constitution and by section 1 of article I of the California Constitution, if law enforcement officers are permitted to make a so-called investigative detention and a search of the defendant such as are involved in the case before us.
I can only interpret the majority's decision today as a desire to make a headlong rush to limit the applicability of the exclusionary rule in some direction and in any direction. And, in so doing, the majority ignores precedent, experience, logic and common sense in order to exclude the rule's operation from situations in which it is sorely needed and eminently and patently justified.
Viewed either singly or collectively, "the circumstances known to Officer (Kaiser) did not support a reasonable suspicion" (In re Tony C., supra, 21 Cal.3d 888, 898, 148 Cal.Rptr. 366, 582 P.2d 957) that defendant Rosalyn Phillips was involved in any criminal activity whatever when observed in the airport in Houston, Texas. The ensuing investigative stop at the Los Angeles airport was thus based entirely on a combination of hunch, curiosity, surmise and conjecture; it lacked any objectively reasonable basis on Officer Kaiser's part that defendant was engaged in any form of criminal activity whatever.
It is of no moment that the investigative stop of defendant made by Officer Kaiser did not amount to a full scale arrest. An investigative detention of a suspect may constitute a violation of a suspect's Fourth and Fourteenth Amendments' right to privacy to the same extent as that involved in an actual and traditional arrest of a suspect. "The Fourth and Fourteenth Amendments' prohibition of searches and seizures that are not supported by some objective justification governs all seizures of the person, 'including seizures that involved only a brief detention short of traditional arrest.' " (Reid v. Georgia (1980) --- U.S. ----, ----, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890.) (Emphasis added.)
II
Defendant's Consent for the Search of Her Suitcase Was an Involuntary Consent and Made Under Acquiescence to a Claim of Lawful Authority
The majority holds that the trial court was correct in denying defendant's suppression-of-evidence motion because defendant voluntarily consented to the search of her suitcase by Officer Kaiser and his companion officer. It is my view that defendant's consent in the case before us must be held to be involuntary as a matter of law.
The record indicates that defendant, a black female, was approached by two males in plain clothes who identified themselves [168 Cal.Rptr. 873] as police officers. After showing defendant his badge and identification as a police officer, Officer Mayer asked defendant if she would mind showing him some identification. She complied and handed to Officer Mayer a California Driver's License. After obtaining defendant's identification, Officer Mayer then told defendant that he was conducting a narcotics investigation and that he had information to believe that she was possibly carrying narcotics and that he then asked her if she had any drugs with her. The defendant stated: "Yes." Officer Mayer then asked defendant if she would mind if he looked through her suitcase and search her purse; that the defendant said: "Go ahead." The officer then requested defendant to come to the office in the center of the airport and she was then accompanied by the two officers to the airport office where the search of the suitcase revealed presence of marijuana.
A. The Interrogation of Defendant Constituted a Violation of Her Miranda Rights
From the foregoing facts, it is clear that defendant's consent was not a voluntary one and that the officer's first question to defendant as to whether she had any drugs with her was an interrogation made in violation of defendant's Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602.) The majority takes the position that defendant's Miranda rights were not violated because she was not in custody and, therefore, was not subject to interrogation within the meaning of Miranda. I disagree.
The Miranda court did not limit its requirement of warnings to the situation of a suspect who is formally arrested. The Miranda court stated that its warning requirements before interrogation came into play whenever "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda, supra, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612.) (Emphasis added.) In the instant case, it is totally unrealistic to assert that defendant was not deprived of her freedom of action in a significant way. Officer Kaiser did not tell defendant that she was free to leave before he informed her that he wanted some identification from her and, after receiving her driver's license, before he told her that he "was conducting a narcotics investigation," and that he "had information to believe that she was possibly carrying narcotics." In light of such an accusation, there is no way that defendant could have reasonably believed that she was free to leave and there is no way that Officer Kaiser could have reasonably believed that he was not depriving defendant of her freedom to leave.
As the court observed in United States v. Bekowies (9th Cir. 1970) 432 F.2d 8, 12, "a suspect will be held to be in custody if the actions of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably have led him to believe he could not leave freely." Certainly, "(f)or one to be in custody, it is not required that he be in handcuffs or even that he be advised in express terms that he is under arrest." (Rosario v. People of Territory of Guam, (9th Cir. 1968) 391 F.2d 869, 872.) Furthermore, it was pointed out in Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, as a prelude to Miranda, that there is an important distinction between an investigatory stage and an accusatory stage insofar as a suspect's rights are concerned. The Escobedo court made the cogent observation "that when the process shifts from investigatory to accusatory-when its focus is on the accused and its purpose is to elicit a confession-our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer." (Id. at p. 492, 84 S.Ct. at 1765.) Thus, in the case at bench, when Officer Kaiser informed defendant that she was believed to be possibly in possession of narcotics, the investigatory stage had ceased and shifted to the accusatory stage with its focus on defendant. Defendant was then entitled to the Miranda warnings prior to Officer Kaiser's interrogation question to her, namely, whether she had any drugs with her. In my view, defendant was in [168 Cal.Rptr. 874] custody and this question to her constituted custodial interrogation-a clear violation of Miranda.
B. Defendant's Consent To Search of Her Purse and Suitcase Followed an Illegal Detention and Thus Became Illegal as the Fruit of the Poisonous Tree
There are two basic reasons why defendant's consent should be held to be involuntary and therefore invalid. The first is that the consent to search was induced by an illegal detention. The second is that the consent to search, as a matter of law, was made under a submission to an assertion of authority.
In the fairly early case of People v. Wilson (1956) 145 Cal.App.2d 1, 7, 301 P.2d 974, it was held that "it is obvious that a 'permission' granted after a person has been improperly arrested and searched, while he is still in custody, and without informing him of his legal right to refuse permission, is not a real or proper consent." The rule set forth in Wilson was approved by our high court in People v. James (1977) 19 Cal.3d 99, 109, 137 Cal.Rptr. 447, 561 P.2d 1135, in which it was observed: "It is well settled that the first of the three facts relied on in Wilson -i. e., that the consent to search was induced by an illegal arrest-compels, even standing alone, a conclusion of involuntariness; 'The rule is clearly established that consent induced by an illegal search or arrest is not voluntary, and that if the accused consents immediately following an illegal entry or search, his assent is not voluntary because it is inseparable from the unlawful conduct of the officers.' (Citations.)"
It is obvious that the James principle of automatic involuntariness of a consent to search induced by an illegal arrest applies equally to a consent to search that is induced by an illegal detention.
C. Defendant's Consent To the Search of Her Purse and Suitcase Was Invalid Because Given Under Submission to an Assertion of Police Authority
Even if we were to assume-which I do not-that defendant's detention was a constitutionally permissible detention, the evidence establishes-as a matter of law-that defendant's consent was involuntary because made as a result of the assertion of police authority. It is well settled, of course, that since the search of defendant's personal property was conducted as a warrantless search, the burden was on the prosecution to establish justification under a recognized exception to the warrant requirement. Consent to search is such an exception. In the case of consent, however, the People have the additional burden of proving that the defendant's manifestation of consent "was the product of his free will and not a mere submission to an express or implied assertion of authority." (James, supra, 19 Cal.3d 99, 106, 137 Cal.Rptr. 447, 561 P.2d 1135.)
I agree that the appellate review of the resolution of this issue is limited. "The question of the voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, 'The power to judge credibility of witnesses, resolve conflicts in testimony, weight evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings-whether express or implied-must be upheld if supported by substantial evidence.' (Citations.)" (James, supra, 19 Cal.3d 99, 107, 137 Cal.Rptr. 447, 561 P.2d 1135.)
In the case at bench, the evidence does not support any reasonable exercise of discretion by the trial judge to make a finding that the prosecution had established its burden of proving a voluntary consent to search. On the contrary, the evidence demonstrates, without equivocation, that the defendant's consent was a submission to the assertion of authority by the two police officers that confronted her. In this case, the police officers did not advise defendant that she had a right to refuse the request for a consent to search her purse and her suitcase. I recognize that several cases, both federal and state, have held that such a request in and of itself is no indication of a belief on the part of a suspect that he has no right to refuse the requested consent. [168 Cal.Rptr. 875] (See People v. Duren (1973) 9 Cal.3d 218, 241, 107 Cal.Rptr. 157, 507 P.2d 1365; Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854; and United States v. Watson (1976) 423 U.S. 411, 412, 96 S.Ct. 820, 822, 46 L.Ed.2d 598.)
In the case before us, however, there are facts which make the rejection of a requirement that police must inform a suspect that there is a right to refuse a consent to search inapposite and untenable. First. We are dealing here with a female defendant whose racial identity is black. Second. In addition, Officer Kaiser did not seek to secure a consent to search (1) until he had requested and received the defendant's identification through a California Driver's License and (2) until he had received an affirmative answer to his question thereafter of whether the defendant had any drugs in her possession. These facts lead inexorably and inevitably to the conclusion that the defendant before us could not be expected to have any belief that she had any right to refuse the requested consent to search.
In Schneckloth, the United States Supreme Court rejected the view that failure of the police to inform a defendant of the right to refuse a consent to search should be deemed sufficient to make a consent given in the absence of such a warning a coerced consent. But Schneckloth did point out that the determination of whether a consent to search was voluntary or coerced was to be governed by the totality-of-the-circumstances rule, and that the failure to notify a defendant of the right to refuse a requested consent to search was a factor which could be taken into account in applying the totality-of-the-circumstances rule in determining whether a consent to search was voluntary or coerced.
In James, the California Supreme Court made an advancement albeit a slight one over the Schneckloth view that refused to impose a requirement of notification to a suspect of the right to refuse a requested consent to search. The James court took the position that, although an absolute requirement of notification as a precondition to a consent to search being valid was being rejected, this rejection was not to be construed as any intention to discourage the giving of such notification by police officials in appropriate cases. The James court proceeded to set forth the warning that "the police would be well advised in close cases to 'make a record' by expressly giving the admonition rather than relying on the inference discussed hereinabove." (James, supra, 19 Cal.3d 99, 118, 137 Cal.Rptr. 447, 561 P.2d 1135; fn. omitted.)
In calling attention to the fact that defendant's sex was female and her racial identity was black, I do so in light of the dissenting opinion of Mr. Justice Marshall in the United States Supreme Court case of Schneckloth v. Bustamonte, supra, in which he said: "The proper resolution of this case turns, I believe, on a realistic assessment of the nature of the interchange between citizens and the police, and of the practical import of allocating the burden of proof in one way rather than another. The Court seeks to escape such assessments by escalating its rhetoric to unwarranted heights, but no matter how forceful the adjectives the Court uses, it cannot avoid being judged by how well its image of these interchanges accords with reality. Although the Court says without real elaboration that it 'cannot agree,' ante, 412 U.S. at 248, 93 S.Ct. at 2058, the holding today confines the protection of the Fourth Amendment against searches conducted without probable cause to the sophisticated, the knowledgeable, and, I might add, the few. In the final analysis, the Court now sanctions a game of blindman's bluff, in which the police always have the upper hand, for the sake of nothing more than the convenience of the police. But the guarantees of the Fourth Amendment were never intended to shrink before such an ephemeral and changeable interest. The Framers of the Fourth Amendment struck the balance against this sort of convenience and in favor of certain basic civil rights. It is not for this Court to restrike that balance because of its own views of the needs of law enforcement officers. I fear that that is the effect of the Court's decision today. (P) It is regrettable that the obsession with validating searches like that [168 Cal.Rptr. 876] conducted in this case, so evident in the Court's hyperbole, has obscured the Court's vision of how the Fourth Amendment was designed to govern the relationship between police and citizen in our society. I believe that experience and careful reflection show how narrow and inaccurate that vision is, and I respectfully dissent." (Schneckloth, supra, 412 U.S. 218, 289-290, 93 S.Ct. 2041, 2079, 36 L.Ed.2d 854 (dis. opn. of Marshall, J.); fn. omitted.) (Emphasis added.)
The evidence over the years is fairly overwhelming that there is a great deal of friction in our society between the police and the black community. It follows, without any substance to the contrary, that this relationship of friction is such that the average black person, including the female black defendant in the instant case, does not reasonably believe that he or she has any option or choice to withhold a consent to search requested by a law enforcement official. This is especially true under the circumstances presented here that defendant, a black woman, was confronted not by one male officer, but by two male officers. In addition, as indicated previously, the consent to search was requested only after the officers had first secured an identification from defendant and had then obtained an affirmative answer to the interrogation question of whether she possessed any drugs.
I am unable to agree, however, with the view expressed by the James court without any exceptions in its affirmation of the principle that " '(t)he mere asking of permission to enter and make a search carries with it the implication that the person can withhold permission for such an entry or search.' (Citations.) (P) Defendant denigrates this rationale as a 'legal fiction,' but we believe it to be psychologically sound: when a person of normal intelligence is expressly asked to give his consent to a search of his premises, he will reasonably infer he has the option of withholding that consent as he chooses." (James, supra, 19 Cal.3d 99, 116, 137 Cal.Rptr. 447, 561 P.2d 1135; fn. omitted.)
This rule of inference upheld by the California Supreme Court in James does not accord with reality and is simply not psychologically sound when applied to a request for a consent to search made by a police officer to a black suspect or defendant. On the contrary, what is psychologically sound, and what does accord with reality, as implied in Justice Marshall's dissent in Schneckloth v. Bustamonte, is the fact that the average black suspect considers that when a consent to search is requested by a police officer, such suspect has no choice but to give consent. Such suspect believes that he must comply with the requested consent in order to preclude an inevitable consequence that he will be searched irrespective of a refusal to consent, and that, in the process, he will be subjected to unpleasant verbal abuse and possibly some degree of physical abuse.
This is a common experience of the black community. This black person's belief is not fictional but is rooted in not uncommon occurrences that have taken place over the years. Any failure or refusal to recognize this factual premise is simply contrary to the common experience of the black community without regard to what that experience might show with respect to the community at large. Furthermore, this belief of the black community is not limited to the poor or uneducated. It is a belief that is rife in all segments of the black community those who are educated and in good financial circumstances, as well as those who are not.
Insofar as black suspects are concerned, the only realistic rule is that of a holding that a failure of a police officer to expressly advise a black suspect male or female that there is a right to refuse a requested consent to search renders the consent involuntary as a matter of law.
The majority takes issue with my dissenting view that the only realistic rule, insofar as black suspects are concerned, is to mandate a Miranda -type admonition by the police that a suspect has the right to refuse to give a requested consent to search. In rejecting the dissent's view, the majority [168 Cal.Rptr. 877] simply fails or refuses to recognize the reality that we live in a racist society and that blacks and other minorities are not accorded equality of treatment in all aspects of American life.
The majority employs high-sounding rhetoric and hyperbole in announcing that it is fundamental to our system of justice that the law be equally applied to all citizens without regard to race, color, creed or sex and that no preferential treatment should be afforded by reason of such distinguishing characteristics. I simply call to the majority's attention that "affirmative action" programs, for example, have been instituted and required in an effort to provide minorities with some semblance of that equality of treatment under the law which the majority considers and I do also to be fundamental to our system of justice.
But if the black suspect is to be accorded equality of treatment with other suspects not preferential treatment in the area of the concept of voluntariness of a consent to search, the rule of a Miranda -type advisement by the police of the right of a suspect to refuse a requested consent is necessary in order to eradicate decades of distasteful and unpleasant experience of the black community with the police. If the adoption of such an advisement rule of law for black suspects alone offends the majority's sense of equality of treatment, the majority should be proposing and advocating the adoption of such a rule of advisement for all suspects, regardless of race, color, creed or sex. I would support wholeheartedly a change in the James court's view to mandate such a rule of law for all suspects whose consent to search is sought by the police white, black, yellow, brown, male, female, young, old all races, creeds and colors.
The majority simply misses the point of my dissent in raising the issue of equal protection of the laws discussed in University of California v. Bakke (1978) 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750. If the majority intends to hold that the white community has had the same experience with the police that the black community has had to produce the same beliefs that a requested consent to search provides no right to refuse consent, then I would agree with the majority that a separate rule of law for black suspects would deny constitutional equal protection rights to all non-black suspects. But the answer in such a case if this is the reality of the white experience is to hold that a police requested consent to search, sought from a white suspect under such circumstances, is also fatally flawed as a consent to search given under a submission to authority.
But until our high court sees the wisdom of changing its rejection in James of such a universal rule of advisement, I must adhere to the view I articulate herein which accords with reality that the failure of such an advisement by the police to a black suspect renders a consent to search invalid as a matter of law such consent being necessarily given under submission to authority. To uphold as voluntary the consent to search, given by defendant in the case before us, constitutes judicial sanction to a continuance of the policy of unequal treatment of black suspects.
III
The Sentencing Procedure Employed by the Trial Judge Was Not Free from Error
In my view, the errors discussed above mandate a reversal of defendant's conviction. Under such circumstances, therefore, I would normally find it unnecessary to discuss defendant's contention regarding the irregular sentencing procedure alleged to have been employed by the trial court. However, since the majority sees no validity to defendant's contention, I deem it appropriate to express my disagreement with the majority's view. The basic thrust of defendant's argument is that the trial judge, in sentencing defendant, considered matter outside of the record and thus denied her a fair hearing. (See In re Calhoun (1976) 17 Cal.3d 75, 83-84, 130 Cal.Rptr. 139, 549 P.2d 1235.) The record establishes that the trial judge, in the process of sentencing defendant, expressed rather strong feelings regarding his disagreement with the sentences imposed by certain other judges and [168 Cal.Rptr. 878] his concern over the possible sentence of a justice of the Court of Appeal who had been charged with a drug offense.
These remarks of the trial judge the majority dismiss as being inconsequential. I am unable to conclude, as does the majority, that these remarks played no significant part in the decision of the trial judge in determining what sentence was appropriate for defendant. Certainly fairness requires an absence of bias and a presence of impartiality on the part of the sentencing court. The trial court's remarks indicated a consideration of improper matters in deciding upon the sentence to be imposed on defendant. As a result, I conclude that there was not the " 'absence of arbitrary determination, capricious disposition or whimsical thinking' " (People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65) that is essential to constitute a valid exercise of discretion in the sentencing procedure employed by the trial judge in the case at bench.
As discussed herein, the errors in this case are monumental. I would thus reverse the judgment of conviction.
Hearing Granted; BIRD, C. J., did not participate.