ROTH, P. J. I dissent.
The minutes recite that the trial court granted a motion “as a matter of law” suppressing the evidence,1 and dismissed the case because of a lack of evidence to support the prolonged detention during which the suppressed evidence was obtained. The People appeal.
The court addressing counsel said: “. . . defendant got out his identification, they patted him down, no tools, nothing that appeared to be loot, what gives him [the officer] the right to further detain him?” (Italics added.) It appears that the trial court accepted the original detention as proper. It suppressed the evidence and dismissed the case because it was satisfied that “police instinct” (see infra), triggered by the objective circumstances recited by the majority, which circumstances provided the basis for the original detention, should have been completely “satisfied as a matter of law” when defendant was patted down and when he thoroughly identified himself.
Accepting for the purpose of this dissent, as the trial court did, the propriety of the original detention, which is in and of itself subject to doubt, the trial court had the defendant, Toney, and all the evidence [626]before it and then proceeded, by its order, to suppress the evidence obtained after defendant had been frisked and after he had identified himself.
The duty of determining questions of fact in a proceeding conducted pursuant to section 1538.5 of the Penal Code is for the trial court. The rulings of the trial court will not be disturbed on appeal if there is substantial evidence to support them. (People v. Superior Court, 3 Cal.App.3d 476, 488 [83 Cal.Rptr. 771]; accord People v. Garnett, 6 Cal.App.3d 280, 289 [85 Cal.Rptr. 769] [resolution of conflicts in testimony a matter for the trial court].) If the trial court is charged with the responsibility of determining questions of fact, it cannot be stripped of the concomitant power to draw inferences from the evidence which is presented. (Cf. People v. Superior Court, 3 Cal.3d 807, 828 [91 Cal.Rptr. 729, 478 P.2d 449].) At bench there is substantial evidence to support the trial court’s ruling and “. . . due deference to the trier of fact’s determination of the weight and credibility of the testimony . . .” (Id. at p. 828) should lead to an affirmance of the order.2
The record shows it was 9 p.m. and dark. Defendant walked out “from between two buildings” and “looked in the direction of the police car” then “turned and walked back between the two buildings.” The officers called defendant and “told him to come over to the car.” He did. In the ensuing conversation defendant told the officers he was looking for Dave, but when queried where Dave lived “he said he didn’t know.” The officers then proceeded with a pat-down search and Toney made clear that he felt nothing like a weapon or any type of tool or anything that might be used to burglarize a car. Concurrently, and it is fair to assume in response to Toney’s request, defendant produced his California operator’s license. After the patdown and identification, Toney’s partner “went between the buildings” and Toney ordered defendant to “stand to the rear of the vehicle on the driver’s side.” According to Toney, the neighborhood was “a known area of burglaries for motor vehicles.”
As to his subjective interpretation of the described events and acts, Toney testified: “I thought [defendant] might be a burglar”—“it appeared [627]to me as if the defendant was attempting to avoid any type of contact with us” and then in response to the prosecution’s questions: “Would you just kind of call that police instinct?” Toney replied: “Yes.”
Nothing in the record shows that there was not a well defined proper, walk-way between the two buildings which the defendant would have had every “right” to use. Similarly, there is no evidence at all respecting any of the several factual issues: we do not know whether the police car was parked 10 or 100 feet from the spot at which defendant first appeared before he retraced his steps—in the dark; we do not know what defendant’s intentions were in terms of ever even entering the alley; and Toney’s conclusion, with nothing to fortify it, that the defendant saw the police car3 and thereupon attempted to avoid contact with the officers, is nothing but opinion based on “hunch” or “instinct.”
We have nothing before us respecting defendant’s appearance, age or demeanor—factors normally considered important in a detention of this kind. Nor, of course, is there a suggestion that a crime had been recently committed, or that a prowler had been reported, other than Toney’s statement that this was a “known area” for car burglaries, generally.
Finally, we are not told by the record how the defendant reversed the direction of his walk. Obviously, this hiatus is critical since a furtive or hurried retreat would certainly have justified prompt investigation by the police.
What the record does tell us, however, is that the defendant promptly and willingly responded to the orders of the police to come over to the squad car; that he produced valid identification; that he answered every question addressed to him; that he submitted to a frisk; and that he cooperated with the officers in every way.
Defendant’s inability to supply Dave’s address apparently was one of the circumstances which led the trial court to believe that the original detention was proper. In none of the facts recited, however, including defendant’s failure to supply Dave’s address, did the trial court nor do I discern anything that could legitimately excite “police instinct” to prolong the detention beyond the actual stop and frisk plus the concurrent identification.
To catalogue all that we do not know about the circumstances of this prolonged detention is to compile a checklist of factors normally underlying a valid detention and arrest. On the dispositive issue of the length of detention we have solely the argument of the prosecution and absolutely no evidence other than such as can be derived by pyramiding inferences.
[628]To justify the prolonged detention at bench would, in my opinion, extend the limited right to stop and frisk defined in Terry v. Ohio, 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868], and Sibron v. New York, 392 U.S. 40 [20 L.Ed.2d 917, 88 S.Ct. 1889], to the plenary power of the police found only in a police state. The test of the lawfulness of the duration of a temporary detention is whether it extended beyond the time reasonably necessary under the circumstances to carry out the initial purpose of the detention. (Willet v. Superior Court, 2 Cal.App.3d 555, 559 [83 Cal.Rptr. 22]; accord, Pendergraft v. Superior Court, 15 Cal.App.3d 237, 242 [93 Cal.Rptr. 155].) The trial court found, in terms of the facts before it, that the prolonged detention was not justified.
This finding is buttressed by the considered judgment of the trial judge which is entitled to due deference and which should be affirmed if there is substantial evidence to support it. (People v. Superior Court, supra, 3 Cal.App.3d 476, 488.)
Whenever any citizen anywhere is stopped by two policemen for what may objectively appear to a reasonable man to be good reasons, it is an unequal encounter. When a citizen is stopped by two policemen for admittedly no reason other than “police instinct” it’s questionable whether he should be stopped at all for the very reason demonstrated. No “police instinct” can justify a detention prolonged on the hope that, the detention itself will turn something up, even if, in the course of events, it should happen to do so.
I would affirm the order.
Respondent’s petition for a hearing by the Supreme Court was denied June 9,1971.
We are not unmindful of People v. Beasley, 5 Cal.App.3d 617 [85 Cal.Rptr. 501] which holds that a minute order entered under Penal Code section 1385 should state specifically the reasons for a dismissal. However, in Beasley, the dismissal was in the “interests of justice.” At bench, the minute order is “as a matter of law” and the reporter’s transcript specifically shows that the trial judge did not consider the evidence sufficient to justify further detention. The reporter’s transcript shows that the district attorney specifically asked the court “Is this as a matter of law ...” and that the court replied: “As a matter of law, yes.” It appears that the court entered an order of dismissal under Penal Code section 1385 to afford the district attorney an immediate opportunity to test its order suppressing the evidence under 1538.5. (People v. Superior Court, 271 Cal.App.2d 338 [76 Cal.Rptr. 712].)
Significantly, Toney’s testimony that he “saw” the police car was stricken and he was only allowed to state that the defendant looked in the squad car’s direction.