JEFFERSON (Bernard), Acting P. J.* I dissent.
The majority holds that the two police officers had probable cause to arrest the defendant in the motel room where he was found and that the search of his person which produced various keys which led to his prosecution for burglary and grand theft was therefore a valid search. The majority thus sustains the trial court’s ruling denying the suppression-of-evidence motion. The majority also rejects the defendant’s claim that he was denied the effective assistance of trial counsel.
I find both of these holdings by the majority to be erroneous, untenable, and unsupportable by the record or the pertinent decisional law. The majority purports to accept and follow the well-settled standard of appellate review which is set forth in People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410 [118 Cal.Rptr. 617, 530 P.2d 585], as follows: “A proceeding... to suppress evidence is a full hearing on the issues before the superior court sitting as finder of fact. [Citations.] The power to judge credibility of witnesses, resolve conflicts in testimony, weigh 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.]” But the majority’s holding is in effect a nullification of this appellate-review standard.
[613]The key error in the majority’s analysis stems from its holding that the trial court’s ruling is supported by substantial evidence and from its reliance upon People v. Harris (1975) 15 Cal.3d 384 [124 Cal.Rptr. 536, 540 P.2d 632] and People v. Moore (1970) 13 Cal.App.3d 424 [91 Cal.Rptr. 538], for the proposition that the officers had probable cause to arrest the defendant. Neither of these cases is apposite to the factual situation presented in the instant case.
I do not quarrel with the principle that there is probable cause to arrest a suspect when “‘the facts available to the officers at the moment of the arrest would “warrant a man of reasonable caution in the belief” that an offense has been committed. [Citation.]’” (People v. Miller (1972) 7 Cal.3d 219, 225 [101 Cal.Rptr. 860, 496 P.2d 1228].) But I do quarrel with the majority’s view that the police officers had probable cause to arrest defendant.
I
Defendant’s Suppression-of-evidence Motion Should Have Been Granted Because of an Invalid Warrantless Arrest or Detention and Search
The critical issue before us is whether the evidence presented at the suppression-of-evidence hearing could justify a finding by the trial court that the officers had probable cause to arrest and, hence, to search the defendant. The majority accepts Officer Anderson’s testimony at the suppression-of-evidence hearing as constituting substantial evidence to meet the definition of probable cause to make an arrest. Officer Anderson testified that the facts he used to constitute probable cause to arrest defendant for burglary consisted of the following: the officer was informed by the manager of the motel that there was a man in a motel room who did not belong there; that the defendant was fully clothed and asleep in the motel room; that defendant did not give a satisfactory explanation of how he happened to be there. From the facts, said Officer Anderson, he concluded that defendant had committed a burglary.
I am unable to accept Officer Anderson’s conclusion that the defendant did not provide him with any satisfactory explanation for his presence there. Officer Anderson testified at the suppression-of-evidence hearing that, upon awakening defendant and asking him how [614]he happened to be in the motel room, he obtained from defendant the explanation that he had been invited into the room for drinks and then had simply fallen asleep. Although there was indication of tampering with the bathroopi window, Officer Anderson said it was obvious that the defendant was too large a man to have gained access to the room by way of the window; that therefore defendant must have gotten into the room by the use of a motel key. The assumption which Officer Anderson made that a motel key had been used by defendant to gain entrance was based upon the officer’s knowledge that obtaining a motel key and using it to gain entrance to a motel room was a common method employed by burglars to commit motel burglaries.
It is my view, however, that it is pure speculation, conjecture and hunch to consider that the existence of this method of committing a motel burglary is sufficient to negate defendant’s explanation that he had been invited into the room for drinks and then fell asleep while fully clothed. There is no testimony in the record that anything was taken by defendant or that the room was disturbed in any way. It is therefore illogical, unreasonable and untenable for an officer—or for anybody else for that matter—to believe that one who uses a key to commit a burglary of a motel room, would go into a motel room and then do nothing more there but go to sleep. There is thus no basis for a finding by the trial court in this case, or for a finding by the majority, that under the circumstances presented, defendant gave an unsatisfactory explanation for his presence in the room. On the contrary, the only reasonable inference that the evidence supports is that defendant’s explanation of his presence in the motel room was a true explanation.
The majority engages in further intense speculation in an effort to justify an obviously unjustifiable arrest—if indeed an arrest did take place at the time defendant was searched. The majority’s theory that there was probable cause to arrest defendant for the misdemeanor offense of defrauding an innkeeper—committed in the presence of the officers, although the officers never dreamed that any such offense was being committed in their presence—has no more substance than the majority’s theory of burglary. Thus, Mr. Lee, the manager, told the officers that a man who had not registered was sleeping in a room rented to someone else. Since the officers then knew that the motel room had been rented to another person, defendant’s explanation of his presence in the room certainly precluded any belief by the officers that defendant was occupying the room with intent to defraud the proprietor.
[615]It is simply preposterous for the majority to take the position that the officers had reasonable cause to believe that defendant was committing a misdemeanor in their presence as he lay asleep fully clothed on the bed. The observation of the Miller court is pertinent here and needs repeating: “Accordingly, the People cannot meet the objective criterion of probable cause for an arrest on a charge of stolen property [defrauding an innkeeper here], because they have failed initially to demonstrate, by an exposition of the officers’ beliefs, that those officers suspected the defendant to be guilty of that crime.” (Miller, supra, 7 Cal.3d 219, 226; fn. omitted.) (Italics added.)
It is significant that at an Evidence Code section 402 evidentiary hearing with respect to the admissibility of defendant’s subsequent statements—a hearing which was held as part of the trial—Officer Jones testified to a version of the facts entirely different from the version given by Officer Anderson in his testimony at the suppression-of-evidence hearing. Officer Jones testified that defendant was not arrested for burglary, or at all, as of the time he was being searched, which is contrary to the testimony of Officer Anderson. Officer Jones stated in his testimony that defendant was simply being detained when he was being searched and that defendant was arrested only after automobile keys were found and removed from his person and these keys were determined to be the keys to a stolen automobile located in the parking lot.
The majority considers the substantial discrepancies between Officer Anderson’s testimony at the suppression-of-evidence hearing and Officer Jones’ testimony at the Evidence Code section 402 admissibility-of-evidence hearing as being of no material consequence because there existed probable cause for defendant’s arrest whether he was in fact arrested or simply detained at the time of the personal search and seizure. I simply cannot understand how the majority is able to conclude that such substantial discrepancies in the testimony of the two officers do not embrace the issue of whether the officers had probable cause to arrest defendant for the felony offense of burglary. It appears to me that the discrepancies in the version of the facts regarding defendant’s arrest or detention related by Officer Anderson and in the version of those facts related by Officer Jones have an inexorable bearing upon whether these police officers had probable cause to arrest the defendant for burglary. When we add Officer Jones’ testimony that there was no arrest of defendant to that of Officer Anderson saying [616]there was an arrest, we must inevitably conclude (1) that Officer Anderson could not have had a subjective belief that defendant had committed burglary, and (2) that there were no facts known to him which would constitute an objective verification of the reasonableness of any subjective state pf mind—assuming that he could have had any subjective belief that defendant had committed burglary.
It is clear that, in order for there to exist probable cause for a warrantless arrest, the arresting officer must not only subjectively entertain a belief that a felony offense has been committed by the defendant, but it must also be objectively reasonable for him to entertain such a belief.
This two-fold requirement of a subjective belief and an objective basis for such a subjective state of mind in determining probable cause to make a felony arrest was recently reiterated in In re Tony C. (1978) 21 Cal.3d 888, 893, footnote 2 [148 Cal.Rptr. 366, 582 P.2d 957], in which the high court observed: “In a trio of cases decided in 1972 this two-fold requirement of an objective verification of the reasonableness of a subjective state of mind was recognized and enforced in the context of probable cause to arrest. [Citations.]” (Italics in original.)1
Although the In re Tony C. case was not concerned with probable cause for a warrantless arrest, but with what constituted grounds to justify a detention and search short of probable cause for an arrest, nevertheless, the court set forth a principle of law which I deem applicable and pertinent to the issue of what constitutes probable cause for a warrantless felony arrest. In requiring that an investigative stop or detention be supported by a subjective suspicion on the part of an officer of criminal activity by the person stopped or detained, and an objective basis in terms of specific and articulable facts to support such a subjective suspicion, the Tony C. court laid down an important corollary to this rule of law. The corollary was to the effect “that an investigative [617]stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.” (In re Tony C., supra, 21 Cal.3d 888, 893.)
In like manner, I deem it a part of the definition of probable cause to make a warrantless felony or misdemeanor arrest that an arrest predicated on mere hunch, rumor or curiosity on the part of the police officer, cannot justify an arrest of a suspect even though the officer has acted in complete good faith. This is exactly what we have in the case at bench. The very best that Officer Anderson had to go on could have been a good faith belief that defendant had committed burglary, although I do not consider that the record would support a finding of such a good faith belief. But since his good faith belief, if any, is only supportable by a hunch based upon the officer’s knowledge that some hotel and motel burglaries have been committed by suspects who got illegal possession of a key to a hotel or motel room, the arrest of defendant—if it did take place before the search—was not based on any probable cause. Hence, the search of defendant which turned up the car keys was an illegal and unconstitutional search and seizure. This made the keys obtained in the search subject to being suppressed as evidence pursuant to Penal Code section 1538.5.
The case at bench is similar in principle to People v. Miller (1972) 7 Cal.3d 219 [101 Cal.Rptr. 860, 496 P.2d 1228], in which a defendant was arrested for the offense of receiving stolen property because police officers found him sleeping in a car parked in a parking lot. The car contained electronic equipment in plain sight, but the officers had received no information that the equipment was stolen property. In holding that the arrest was invalid the court made the observation that “the People cannot meet the objective criterion of probable cause for an arrest on a charge of stolen property, because they have failed initially to demonstrate, by an exposition of the officers’ beliefs that those officers suspected the defendant to be guilty of that crime.” (Id. at p. 226.) (Italics added.)
Further emphasis was placed by the Miller court on the requirement for probable cause to justify a warrantless arrest that police officers have a belief that a defendant committed a particular crime. Thus, the court added: “Although the officer must suspect that an individual has committed the elements of a crime in order eventually to establish probable cause to arrest for commission of that crime, the officer need not [618]articulate all his suspicions at the time of arrest,...” (Id. at p. 226, fn. 1.) (First italics added; second italics in original.)
It is obvious in the case at bench that Officers Anderson and Jones did not have a good faith belief that defendant had committed a burglary. The offense' of burglary requires a specific intent to commit theft or some felony. (Pen. Code, § 459.) What intent did Officer Anderson believe defendant possessed when the latter entered the motel room? Was it to commit some other felony? Officer Anderson’s testimony does not supply an answer. Nor does the evidentiary hearing testimony of Officer Jones at the trial supply an answer except to refute the suppression-of-evidence-hearing testimony of Officer Anderson that defendant was in fact arrested at the time he was searched beyond the customary pat-down search for weapons.
It is equally obvious that neither Officer Anderson nor Officer Jones entertained any subjective belief that defendant had committed in their presence the misdemeanor offense of defrauding an innkeeper. The majority conjectures and speculates that Mr. Lee’s trial testimony would indicate that Officer Jones probably had a subjective belief that there was probable cause to arrest defendant for this misdemeanor offense. But I read the record of Mr. Lee’s trial testimony differently than does the majority.
The questions to Mr. Lee and his answers were as follows: “When the police arrived, you told them that you wanted the man in the other room removed; is that correct? [If] A. Right. [If] Q. And you didn’t tell them that you wanted him arrested, but you said that you wanted him removed and you wanted money for the room? [1f] A. I didn’t ask for money. [If] Q. You told them that you wanted him removed, though, but not arrested; is that right? [If] A. Right.” (Italics added.)
This testimony of Lee is not reasonably capable of the inference that the officers asked Lee whether he wanted the defendant arrested. If Officer Jones suspected that the misdemeanor offense of defrauding an innkeeper was being committed by defendant in his presence, it would be of no consequence whether Lee wanted defendant arrested or not. Why would a police officer ask a motel proprietor whether the latter wanted a defendant arrested if the officer was observing the defendant commit an offense in the officer’s presence to justify an arrest? But the most persuasive evidence against the conjectural and speculative theory [619]that Officer Jones probably articulated in his mind that defendant was committing the offense of obtaining service from the motel with an intent to defraud the motel by not paying for such service is the testimony of Officer Jones himself. Jones testified that they were making an investigative detention of defendant—not an arrest at the time of the search. If Officer Jones believed that he had probable cause to arrest defendant for the offense of defrauding an innkeeper, he would have arrested defendant rather than making a detention only.
It is manifestly and inescapably clear, therefore, that Officer Jones did not possess any subjective belief that defendant had committed the misdemeanor offense of defrauding an innkeeper. Hence, there was no probable cause to arrest defendant for this offense. Nor did Officer Jones, at the time of the search, believe that defendant had committed any offense which would provide probable cause to justify an arrest. Such probable cause developed only after the illegal search turned up the car keys which fit the ignition of a stolen vehicle.
If Officer Jones is to be believed, the search of defendant was a part of a detention process and before any arrest was made. Under such circumstances, the only search that can be justified by a prearrest detention is a pat-down search for weapons. As the California Supreme Court has pointed out, “[t]he sole justification for such a search is ‘the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.’ (Terry v. Ohio (1968) supra, 392 U.S. 1, 29-30 [20 L.Ed.2d 889, 910-911.) In the ordinary Terry-type pat-down, occurring as it does in the context of a street frisk, an intrusion further than the outer clothing of the suspect is allowable only if the initial limited exploration discloses potential instruments of assault. (Sibron v. New York (1968) 392 U.S. 40, 44-45 [20 L.Ed.2d 917, 924-925, 88 S.Ct. 1889].) To properly exceed the scope of a pat-down the officer must be able to point to ‘specific and articulable facts reasonably supporting his suspicion’ that the suspect is armed. (People v. Collins (1970) 1 Cal.3d 658, 662 [83 Cal.Rptr. 179, 463 P.2d 403].) The burden of establishing these facts rests with the People. (Ibid., citing People v. Johnson (1968) 68 Cal.2d 629, 632 [68 Cal.Rptr. 441, 440 P.2d 921].)” (People v. Brisendine (1975) 13 Cal.3d 528, 542 [119 Cal.Rptr. 315, 531 P.2d 1099].)
[620]Here the officers made a search of defendant for the specific purpose—not of seeking to locate a weapon—but on the hunch that defendant might have had motel keys in his pocket. This search, therefore, constituted a clear violation of defendant’s federal and state constitutional rights to be free of an unreasonable search and seizure as explained in Brisendine.
Even where an officer during a pat-down search touches some object which he realizes is not a weapon, he may not seize such an object. “An officer unable to point to specific and articulable facts suggesting that the object he touches during a pat-down search is a weapon may not seize the object.” (People v. Leib (1976) 16 Cal.3d 869, 876 [129 Cal.Rptr. 433, 548 P.2d 1105].) A suspicion even that a defendant is carrying contraband can form no justification for a detention search that goes beyond the pat-down search for a weapon. (Kaplan v. Superior Court (1971) 6 Cal.3d 150 [98 Cal.Rptr. 649, 491 P.2d 1]; People v. Mosher (1969) 1 Cal.3d 379 [82 Cal.Rptr. 379, 461 P.2d 659]; Leib, supra, 16 Cal.3d 869.)
II
Defendant Is Not Barred From Raising on Appeal the Issue of Invalidity of a Search Resulting From a Detention as Contrasted With a Search Resulting From an Arrest
The People also advance the contention that defendant should be precluded, on this appeal, from raising the issue of the invalidity of the search as part of a mere detention of defendant in that defense counsel did not raise the issue at the suppression-of-evidence hearing or renew a motion at the trial to suppress evidence, or otherwise object to the introduction into evidence of the keys seized in making a search of defendant’s person.
I fully recognize that it is a settled rule of law that, “for a suppression ruling to be reviewable, the underlying objection, contention or theory must have been urged and determined in the trial court... .[If] This is an elemental matter of fairness in giving each of the parties an opportunity adequately to litigate the facts and inferences relating to the adverse party’s contentions.” (People v. Manning (1973) 33 Cal.App.3d 586, 600-601 [109 Cal.Rptr. 531].)
[621]But my review of the record of the suppression-of-evidence hearing indicates quite clearly, however, that defendant moved to suppress evidence (including the car keys) both on the ground that the search was incident to an illegal arrest and on the ground that the search was incident to an illegal detention. Thus, defense counsel stated to the court at the beginning of the suppression-of-evidence hearing: “I indicated in my notice to counsel that what I wish to suppress were any observations made, any statements made, any evidence seized or - any contraband seized as the result of the illegal detention, arrest, or search of Mr. Lewis.” (Italics added.) The fact that defense counsel in argument at the conclusion of this hearing emphasized the theory of an illegal arrest for burglary cannot be unreasonably distorted to amount to a waiver of the ground initially urged of an illegal search incident to either an arrest or to a detention.
I thus disagree with the apparently narrow and strict interpretation placed upon a defendant’s suppression-of-evidence motion by the Manning court. The Manning court observed: “Even if the trial court has not insisted upon a formal statement of grounds, it is apparent that the scope of issues upon review must be limited to those raised during argument, whether that argument has been oral or in writing.” (Manning, supra, 33 Cal.App.3d 586, 601.) (Italics added.) A defendant’s constitutional rights should not be wiped away by the specious argument of waiver advanced by the People on this appeal.
III
Defendant Was Denied His Constitutional Right to Effective Assistance of Trial Counsel
I turn next to the issue of whether defendant was denied his constitutional right to effective assistance of counsel. This issue is raised by defendant on his appeal from the judgment of conviction as well as by a petition for a writ of habeas corpus. It is now established law that a defendant has been denied effective assistance of counsel only upon a showing “that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates,” and that, in addition, “counsel’s acts or omissions resulted in the withdrawal of a potentially meritorious defense.” (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859].)
[622]Defendant predicates his position that he was denied the effective assistance of counsel on the theory that his trial counsel failed to renew at the trial the motion to suppress evidence after the evidentiary-admissibility hearing had revealed the testimony of Officer Jones—testimony which was contradictory of the testimony of Officer Anderson given at the hearing on the suppression-of-evidence motion—and failed to object to the introduction into evidence of the keys seized from defendant’s person during the search of defendant’s person.
It is significant that, on the appeal, the People point out that defendant may not claim as error the receipt into evidence of the automobile keys seized from defendant as a result of the search of defendant’s person because defendant did not object to admissibility at the trial. Here, again, it is “the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citations.] The contrary rule would deprive the People of the opportunity to cure the defect at trial and would ‘permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.’ [Citation.]” (People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal.Rptr. 732, 579 P.2d 1048]; accord, People v. Privitera (1979) 23 Cal.3d 697, 710 [153 Cal.Rptr. 431, 591 P.2d 919].)
In this instance the record is not at all ambiguous. It demonstrates that defense counsel did not renew the suppression-of-evidence motion after Officer Jones testified at the evidentiary-admissibility hearing during the trial—a hearing held to test the admissibility of defendant’s statements. Nor did defendant object to the introduction into evidence of the vehicle keys taken from defendant’s person. On the contrary, the trial judge specifically asked if defense counsel was objecting to the introduction of the prosecution’s exhibits—which included the vehicle keys—and counsel responded that she had no objection to the exhibits being received into evidence.
The majority rejects defendant’s claim regarding ineffective assistance of counsel by making the facile explanation that the search of defendant was an integral part of a valid warrantless arrest and, therefore, that the contradictory testimony of Officer Jones could have no effect on converting an arrest into the lesser intrusion denominated a detention. Obviously, if there was probable cause to arrest defendant [623]for the felony offense of burglary based solely on Officer Anderson’s testimony—even though it was contradicted by the subsequent testimony of Officer Jones—a renewal by defense counsel of a motion to suppress evidence based on a theory of an invalid search following a detention of defendant rather than following an arrest of defendant, and an objection to admissibility of evidence seized from defendant during the search, could not possibly succeed. Under such a hypothesis, defense counsel’s failure could not result in the withdrawal of a potentially meritorious defense.
It is my view that the majority’s holding in rejecting defendant’s contention that he was deprived of his constitutional right to effective assistance of counsel is equally as erroneous as its holding that the officers had probable cause to arrest defendant for the felony offense of burglary. It is manifestly clear to me that the testimony of Officer Jones that defendant was searched and the car keys removed from his person before any arrest was made created a serious and glaring problem of credibility with respect to the testimony of Officer Anderson, which necessarily demonstrated a failure on the part of the People to carry its burden of proving that Officers Anderson and Jones had probable cause to arrest defendant and search him beyond the pat-down search which is the only permissible search in the case of an investigative detention.
The record before us is devoid of any evidence that a reasonably competent attorney for the defendant would have failed to renew the suppression-of-evidence motion and would have failed to object to the introduction in evidence of the objects seized during the search of defendant’s person. The likelihood of such a motion being denied is without any foundation in the evidence. On the contrary, in light of the testimony of Officer Jones, the conclusion is inescapable that the trial judge would have granted such a motion on the ground that there was lacking probable cause for the officers to arrest defendant on a charge of burglary or defrauding an innkeeper and that the search and seizure of the keys from defendant’s person constituted a constitutionally impermissible search and seizure as flowing from an investigative detention. (See Leib, supra, 16 Cal.3d 869; Kaplan, supra, 6 Cal.3d 150; and Mosher, supra, 1 Cal.3d 379.)
This is not a case in which it can be validly asserted that the record is silent as to whether the failure to renew the motion to suppress evidence [624]and to object to the admissibility of evidence seized from defendant was a matter of a tactical choice by defense counsel. The vehicle keys obtained in a search of defendant’s person constituted a crucial element in the prosecution’s case against defendant for grand theft of an automobile. This illegally seized evidence constituted a substantial part of the prosecution’s case against defendant. The Pope case reiterated, without equivocation, that if trial counsel’s failure to perform the obligations which reasonably competent counsel would have performed “results in the withdrawal of a crucial or potentially meritorious defense, ‘“the defendant has not had the assistance to which he is entitled.”’” (Pope, supra, 23 Cal.3d 412, 425.) (Fn. omitted.)2
I would thus reverse the judgment of conviction and grant the petition for writ of habeas corpus.
Appellant’s petitions for a hearing by the Supreme Court were denied October 15, 1980. Bird, C. J., was of the opinion that the petitions should be granted.
Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.
In the In re Tony C. case, the court was dealing with the issue of what circumstances short of probable cause to make an arrest would justify a police officer in making an investigative stop and detention for questioning or other limited investigation. As part of the guiding principle set forth in the In re Tony C. case, the court established the same two requirements of a subjective state of mind and an objective verification of that state of mind. Thus, the In re Tony C. court concluded with respect to the legality of an investigative stop or detention “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. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so.” (In re Tony C, supra, 21 Cal.3d 888, 893.)
In the omitted footnote, the Pope court commented: “A crucial defense is not necessarily one which, if presented, ‘would result inexorably in a defendant’s acquittal.’ [Citations.] Ibarra [People v. Ibarra (1963) 60 Cal.2d 460 (34 Cal.Rptr. 863, 386 P.2d 487)] itself teaches that by failing to obtain an adjudication of the stronger of two potential defenses, trial counsel deprived his client of constitutionally adequate assistance (60 Cal.2d at pp. 465-466).” (Pope, supra, 23 Cal.3d 412, 425, fn. 15.)