ASHBY, J. I respectfully dissent.
The facts are veiy simple. Deputy Sheriff Falls saw two males seated in a parked car. There was a beer can on the dashboard. The minor, who was 15, was in the passenger’s seat and his companion was the driver. As Deputy Falls approached, both the driver and the minor got out of the car. While Falls talked to them, Deputy Vernon looked into the car and found two nun-chakus sticks on the floor of the driver’s side of the vehicle. He picked them up and asked whose sticks they were. The question was not directed specifically at the minor, who said “that they were his,” and that “he had found them.”
At the time the question was asked, appellant was not under arrest nor was he in custody within the meaning of Miranda v. Arizona, 384 U.S. 436, 444 [16 L.Ed.2d 694, 706, 86 S.Ct. 1602, 10 A.L.R.3d 974]. He was subject only to temporary detention for purposes of investigation, which is not the type of significant restraint to which the Miranda rules apply. (People v. Manis, 268 Cal.App.2d 653, 663-669 [74 Cal.Rptr. 423]; People v. Hubbard, 9 Cal.App.3d 827, 833 [88 Cal.Rptr. 411].) The majority’s conclusion that the minor was effectively in custody because there was probable cause to arrest him is not supported by the record.
As to Vehicle Code section 23123.5, there is no evidence in the record that the beer can contained beer or any other fluid, alcoholic or not. In speculating to the contrary, the majority violates the rule that the appellate court must view the evidence in the light most favorable to the judgment and indulge in all reasonable factual inferences which favor the trial court’s ruling. (See People v. Lawler, 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621].)
In regard to Penal Code section 12020, the nun-chakus sticks were on the floor of the driver’s side of the vehicle, not appellant’s side. Appellant was only a passenger, not the driver or the owner. These facts would not have been sufficient to prove that appellant possessed them. (People v. Myles, 50 Cal.App.3d 423, 429 [123 Cal.Rptr. 348]; People v. Zyduck, 270 Cal.App.2d 334, 336 [75 Cal.Rptr. 616].)
Conceding this evidence alone would not have sustained the petition, the majority concludes that it was nevertheless sufficient to have sustained an arrest, and that therefore the minor was “effectively under arrest.” (Ante, p. 138.) In relying upon such a narrow and technical approach, the majority ignores the reality of the situation and strains to [140]exclude the evidence. The fallacy in the majority’s reasoning is its reliance on cases where there was only one suspect. This fails to.take into consideration the special circumstances where there are two possible suspects under facts suggesting that only one of them is guilty. In these circumstances the police may properly engage in further investigation, without complying with Miranda, in order to exonerate one suspect and avoid having to arrest both.
The question of ownership of the nun-chakus sticks was not specifically directed to appellant and, viewed realistically, the logical and natural object of the inquiry was appellant’s companion, not him. Had the companion, who seemed the likely owner of the sticks, admitted they were his, the investigation would have ceased as to appellant. The majority itself states that the officers would have arrested both the driver and the, passenger “absent an adequate explanation by one or both persons.” (Ante, p. 137.) Deputy Vernon’s general inquiry regarding ownership of the nun-chakus sticks provided the opportunity for that “adequate explanation.” It was a reasonable and appropriate means of exonerating a possibly innocent party so as to avoid an unnecessary arrest.
The majority says that “under Miranda the vital question is custody, not whether the investigation has focused on the person interrogated.” (Ante, p. 136.) The cases cited by the majority for this proposition clearly are distinguishable from the facts of the instant case and the cases cited in this dissent. Miranda v. Arizona, 384 U.S. 436, 444, footnote 4 [16 L.Ed.2d 694, 706, 86 S.Ct. 1602, 10 A.L.R.3d 974]; Mathis v. United States, 391 U.S. 1, 4-5 [20 L.Ed.2d 381, 384-385, 88 S.Ct. 1503]; and People v. Woodberry, 265 Cal.App.2d 351, 354-357 [71 Cal.Rptr. 165], all involve defendants who were either in jail or in a police department interrogation room at the time they were questioned. People v. Hubbard, 9 Cal.App.3d 827 [88 Cal.Rptr. 411], held that police who stopped a vehicle which went through a red light did not violate Miranda by asking the defendant if he had any pills after feeling them during a pat-down. The majority overlooks the fact that the extent to which the investigation has begun to focus on the suspect is a crucial element in determining whether there is custody within the meaning of Miranda, supra. (See People v. Herdan, 42 Cal.App.3d 300, 307, fn. 10 [116 Cal.Rptr. 641].)
Ample authority supports the conclusion that, if the police might have technical probable cause to arrest two suspects, a general investigation likely to lead to the exoneration of one of the suspects is not restricted by [141]the Miranda rules. In People v. Alesi, 67 Cal.2d 856 [64 Cal.Rptr. 104, 434 P.2d 360], the police arrested the defendant on a warrant at the apartment of a Miss Kline. They found a marijuana cigarette in the defendant’s pocket. The defendant was asked if it was his and he answered yes. He was then asked, “ ‘ “It’s weed, isn’t it?” ’ ” He answered, “ ‘ “Yes.” ’ ” (Id. at p. 864.) The Supreme Court at pages 864-865 held: “.. . The queries were a natural product of the fast-moving events and gave the deputies an opportunity to exonerate an innocent person, Miss Kline, who was also in the apartment at the time and could have been involved in ownership of the contraband. The questions concluded the inquiry into the newly discovered crime, marijuana possession, and we hold that under the circumstances this was a routine investigation and not violative of Escobedo-Dorado.”
The same reasoning has been applied in cases governed by Miranda rather than Escobedo-Dorado. In People v. Allison, 249 Cal.App.2d 653 [57 Cal.Rptr. 635], witnesses saw a man named Fontana remove a tire from a Volkswagen. Fontana then ran off with the tire. He was apprehended near the open door of defendant’s Volkswagen and a new automobile tire was in plain view behind the driver’s seat. The defendant who apparently was the owner of the car was asked to whom the tire belonged. He replied that it was his, and was arrested. The court held that the Miranda warning was not required and stated that: “Although Gregorio had reason to believe that Fontana had stolen the tire, his only basis for being ‘suspicious’ of defendant consisted of the fact that defendant was in the company of Fontana and was the owner of the car in which the tire had been placed. Gregorio had no way of knowing whether defendant was aware that Fontana had stolen the tire, or whether, possessing such knowledge, he had consented to its being placed in his car. Had defendant offered an innocent explanation of how the tire came to be placed in his car, the investigation so far as it applied to defendant would necessarily have ended. It was not until defendant gave. Gregorio reason to believe that he had lied, thus raising an inference of guilty knowledge, that the situation as to defendant passed the investigatory stage.” (249 Cal.App.2d at pp. 657-658.)
In People v. Kasperek, 273 Cal.App.2d 320 [77 Cal.Rptr. 904], the police arrested a person named Simmons in possession of a stolen tape recorder. Simmons said he purchased it from the defendant. The police knocked at the defendant’s door and asked if he knew Simmons and if he had sold him a tape recorder. The defendant answered “ ‘Yes,’ ” and was arrested. The court held at page 323, “. . . Until appellant had given [142]his affirmative answers to the officers’ preliminary questions, the logical probabilities of the situation strongly support the inference that the primary focus of suspicion rested upon Simmons, the known possessor of the stolen property, rather than upon appellant. However, appellant’s answers were such as to shift the focus of attention toward him and to create that strong suspicion of guilt which justified the ensuing arrest.”
The evidence establishes that appellant was only temporarily detained while the officer engaged in a general investigation which, in the particular circumstances, was likely to lead to the exoneration of appellant. Appellant was not in custody or deprived of his freedom in a significant way within the meaning of Miranda v. Arizona, supra, 384 U.S. 436, 444 [16 L.Ed.2d 694, 706], until, unexpectedly, appellant rather than his companion stated that the nun-chakus sticks were his. The officer’s investigation was both appropriate and reasonable.
I would affirm the order.
A petition for a rehearing was denied August 16, 1977. Ashby, J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied September 22, 1977. Bird, C. J., and Clark, J., were of the opinion that the petition should be granted.