People v. King

California Court of Appeal Aug 2, 1977 No. Crim. 16014Published

Before: Elkington

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Holding. The court held that the trial court's finding of no Fourth Amendment violation was supported by substantial evidence, as the officer's conduct in calling out to the defendant did not necessarily constitute an unlawful detention.

Issues

Whether the trial court erred in denying the defendant's Penal Code section 995 motion to set aside the information.
Whether the police officer's conduct constituted an unlawful detention under the Fourth Amendment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We accordingly conclude, as did the superior court, that the police conduct under consideration was without Fourth Amendment flaw.”

“Unless there is some sort of a temporary restraint or holding in custody, there is no detention.”

“Where the superior court’s conclusions on a Fourth Amendment issue turn upon issues of fact and credibility of witnesses we may not reweigh the evidence, or draw inferences other than those reasonably drawn by the trial court.”

Opinion

ELKINGTON, J.

The sole issue of defendant King’s appeal from an order of commitment entered on his plea of guilty to possession of heroin (Health & Saf. Code, § 11350) is whether the superior court erred in denying his Penal Code section 995 motion to set aside the charging information. The validity of the information depended upon the absence of a Fourth Amendment violation in the police seizure of certain heroin as will hereafter be discussed.

The appeal appears to be permitted by Penal Code section 1538.5, subdivision (m); the People make no contrary contention.

One afternoon a police officer, traveling in a police vehicle, saw King standing on the sidewalk with seven or eight other individuals, and looking in the direction of the police car. The officer proceeded in the direction of the group and as he did, King “began walking away, away from [the] approaching vehicle.” The officer “exited the vehicle and [again] observed Mr. King walking away.” The officer “called out to him,” saying “Danny, stop, I want to talk to you,” but King “continued to walk away speeding up his walk as he did so.” King was then seen to place, his hand in his pocket and upon pulling it out, make a throwing motion. Twenty-three toy balloons of different colors containing heroin were thus thrown to the ground. The officer, a trained narcotics specialist, knew such toy balloons to be a common method of packaging heroin, so he grabbed King “to keep him from discarding any further objects.” Following King’s arrest more heroin was found upon his person.

The officer additionally gave the following testimony: “Q. And you were within six feet of him when he pulled his hand out of his pocket, right? A. Approximately six feet, yes. Q. You were going to detain him at that time, is that right? A. We were going to stop him and talk to him,

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yes. Q. But he wasn’t free to go? A. We hadn’t actually detained him at the time so he was free to go if he wanted to.”

We briefly state the function of this court on King’s appeal. Where the superior court’s conclusions on a Fourth Amendment issue turn upon issues of fact and credibility of witnesses we may not reweigh the evidence, or

People v. King

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ELKINGTON, J.

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