People v. Divito

California Court of Appeal Feb 17, 1984 No. Crim. 44541Published

Before: Compton

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Holding. A police officer's initial approach to a citizen on a public street does not constitute a detention under the Fourth Amendment, and the subsequent detection of the odor of PCP provides probable cause for a search and arrest.

Issues

Whether a police officer's initial approach to a citizen on a public street constitutes a detention requiring reasonable suspicion.
Whether the detection of the odor of PCP after a lawful approach justifies a detention and search.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Officer Avila was not constitutionally foreclosed from approaching respondent, or any other citizen, on a public street as it is beyond question that a mere “contact” or “approach” does not invoke Fourth Amendment considerations.”

“A detention commenced only after the officer lawfully approached respondent and detected the characteristic odor of PCP.”

“Having detected the presence of the distinctive odor and being cognizant of respondent’s previous actions, Officer Avila reasonably suspected that contraband was present and that respondent had concealed it on his person.”

Opinion

COMPTON, J.

Antonio Divito was charged by information with possessing . phencyclidine (PCP) for purposes of sale. (Health & Saf. Code,

[13]

§ 11378.5.) A motion to suppress evidence pursuant to Penal Code section 1538.5 was granted and the case dismissed, and as authorized by Penal Code section 1238, subdivision (a)(7), the People appeal.

The motion to suppress was submitted upon the transcript of the preliminary examination which established that at 6:15 p.m. on May 25, 1982, Los Angeles Police Officer David Avila was in uniform and travelling as a passenger in an unmarked police vehicle when he observed respondent and two other men standing on the corner of Ascot and 52d Street from a distance of 20 feet. Respondent, who had his back to the police car, “was holding something up” and the two men appeared to be examining it. Respondent’s companions, immediately upon observing the police vehicle, turned and walked rapidly away. Respondent turned as well and looked in the direction of the police car. He then placed an unknown object in his right pants pocket and slowly followed his companions.

Officer Avila, who possessed extensive experience in arrests for PCP sales at this intersection and knew the area to be rife with such conduct, suspected that he had witnessed a narcotics transaction and stopped his police vehicle to investigate. As the officer approached respondent, he detected “[a] strong chemical-type odor indicative of PCP,” or phencyclidine, emanating from respondent’s person.

Following the detection of the PCP odor, respondent was asked to turn around and place his hands behind his head. As he complied, the officer patted down the outer clothing and felt a circular object inside respondent’s right trouser pocket, which he retrieved. It was “a vial containing a clear liquid with a tobacco-type substance floating about.”

Respondent was then placed under arrest. Prior to booking, “four Sherman-type cigarettes cut in half or four halves . . . and one whole” cigarette were found in respondent’s jacket pocket. In ruling upon respondent’s suppression motion, the superior court concluded that the police officer had no right to “stop” or “detain” respondent prior to detection of the odor. The trial court opined that after such detection there was probable cause to arrest.

People v. Divito

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COMPTON, J.

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