Roth

Following denial of his motion to suppress evidence (Pen. Code, § 1538.5), Gregory Thomas Roth entered a negotiated *213 guilty plea pursuant to People v. West (1970) 3 Cal.3d 595 [ 91 Cal.Rptr. 385 , 477 P.2d 409 ] to possession of a firearm by a felon (Pen. Code, § 12021). He appeals the denial of his suppression motion, contending the police officers acted illegally in detaining him and patting him down. We agree with the first contention, and reverse.

Factual and Procedural Background

The People’s Evidence

At about 1:20 a.m. on February 7, 1988, reserve Deputy Sheriff Mark Boumpensiero and Deputy Hinton were conducting a security check of closed businesses in the Alpha Beta shopping center in Lakeside. It was a clear night and the temperature was moderate, not too cold. They saw Roth walking in the parking lot, about 30 yards from the Alpha Beta, westbound toward the front of the store. There was no one else in the parking lot and Boumpensiero saw no other cars in the area.

Boumpensiero shined his spotlight on Roth and stopped the patrol car. When the deputy hit him with the spotlight, Roth stopped walking. Both deputies got out of their car. Boumpensiero stood…

I agree a detention occurred. I dissent, however, because the Fourth Amendment requires only “ ‘some minimal level of objective justification’ ” for making the stop. (United States v. Sokolow (1989) 490 U.S. 1, 7 [ 104 L.Ed.2d 1, 10 , 109 S.Ct. 1581, 1585 ].) Here, police found Roth walking alone at 1:20 a.m. in a deserted and closed shopping center wearing a bulky and, in light of the weather conditions, inappropriate jacket. These circumstances are suspicious. Holding the detention unlawful, the court essentially means the police officer wrongfully performed his duty in investigating what any fair-minded person would have to concede are at least minimally suspicious circumstances. I find such a conclusion not only difficult to accept philosophically, but legally as well.

In evaluating the validity of a stop such as this, we must consider the “totality of the circumstances—the whole picture.” (People v. Miles (1987) 196 Cal.App.3d 612, 617 [ 242 Cal.Rptr. 107 ].) Here, there are at least three objective facts producing, in my view, ample justification for detention: time, location, appearance. On similar facts courts have held a detention lawful. For example, in People v. Ellis…

WIENER, Acting P.J.

Following denial of his motion to suppress evidence (Pen. Code, § 1538.5), Gregory Thomas Roth entered a negotiated guilty plea pursuant to People v. West (1970) 3 Cal.3d 595 [ 91 Cal. Rptr. 385 , 477 P.2d 409 ] to possession of a firearm by a felon (Pen. Code, § 12021). He appeals the denial of his suppression motion, contending the police officers acted illegally in detaining him and patting him down. We agree with the first contention, and reverse.

At about 1:20 a.m. on February 7, 1988, reserve Deputy Sheriff Mark Boumpensiero and Deputy Hinton were conducting a security check of closed businesses in the Alpha Beta shopping center in Lakeside. It was a clear night and the temperature was moderate, not too cold. They saw Roth walking in the parking lot, about 30 yards from the Alpha Beta, westbound toward the front of the store. There was no one else in the parking lot and Boumpensiero saw no other cars in the area.

Boumpensiero shined his spotlight on Roth and stopped the patrol car. When the deputy hit him with the spotlight, Roth stopped walking. Both deputies got out of their car. Boumpensiero stood behind the door of the patrol car and asked…

I concur in the majority opinion because the trial court determined Officer Boumpensiero issued a command to Roth when he asked him to approach the patrol vehicle. The majority opinion quotes the officer’s statement as being either “I would like to talk to you,” or “Come over here. I want to talk to you.” Based upon this conflicting recollection of what Officer Boumpensiero actually said to Roth, the trial court found a “command” and, thus, a detention. The officer had every right to approach Roth and determine the reason for his unusual appearance at this time and place. However, I am bound by the finding that what the trial court might have found only to be a “request” was actually a “command.” (See People v. Leyba (1981) 29 Cal.3d 591, 596-597 [ 174 Cal.Rptr. 867 , 629 P.2d 961 ].)

Certainly the use of the vehicle spotlight was not enough to escalate an otherwise appropriate investigation contact into a detention. (See People v. Franklin (1987) 192 Cal.App.3d 935, 940-941 [ 237 Cal.Rptr. 840 ].) Unfortunately, Roth’s physical proximity to the officer, disclosing the jacket-covered weapon bulge and probable cause for further investigation and arrest, only resulted from the…