Rosenfeld

People appeal an order suppressing evidence and dismissing the information against defendant. (Pen. Code, § 1238, subd. (7).)

During the hearing on defendant’s motion to suppress (Pen. Code, § 1538.5), Officer Joseph Toney of the Los- Angeles police testified that he and his partner were patrolling an alley behind apartment buildings with open garages in an area of Hollywood where there had been “quite a few burglaries from motor vehicles.” About 9 p.m. they saw defendant *621 walk out from, behind two buildings and look in the direction of the police vehicle. He then turned and walked back between the buildings. Toney’s on-the-scene interpretation of this event was, according to his testimony:

The officers called defendant to their vehicle. Officer Toney asked him what he was doing there, and defendant said that he was looking for a friend named Dave. When asked where his friend lived, defendant said he didn’t know. A pat-down of defendant revealed no weapons or tools. Toney asked for identification, and defendant produced a California driver’s license. At this point Toney’s partner walked over between the buildings, and Toney directed defendant to stand to the rear of…

I dissent.

The minutes recite that the trial court granted a motion “as a matter of law” suppressing the evidence, 1 and dismissed the case because of a lack of evidence to support the prolonged detention during which the suppressed evidence was obtained. The People appeal.

The court addressing counsel said: “. . . defendant got out his identification, they patted him down, no tools, nothing that appeared to be loot, what gives him [the officer] the right to further detain him?” (Italics added.) It appears that the trial court accepted the original detention as proper. It suppressed the evidence and dismissed the case because it was satisfied that “police instinct” (see infra), triggered by the objective circumstances recited by the majority, which circumstances provided the basis for the original detention, should have been completely “satisfied as a matter of law” when defendant was patted down and when he thoroughly identified himself.

Accepting for the purpose of this dissent, as the trial court did, the propriety of the original detention, which is in and of itself subject to doubt, the trial court had the defendant, Toney, and all the evidence *626 before it and then…

I concur in the opinion and offer only brief additional comment.

In Rios v. United States, 364 U.S. 253 [ 4 L.Ed.2d 1688 , 80 S.Ct. 1431 ], the relevant facts are recited as follows:

The decision of the Supreme Court of the United States holds in effect that the officers’ two-mile pursuit of the cab and their act in approaching and detaining the vehicle for purposes of “routine interrogation” were proper. In remanding the case to the District Court for further proceedings, the court declared as follows: “The validity of the search thus turns upon the narrow question of when the arrest occurred, and the answer to that question depends upon an evaluation of the conflicting testimony of those who were there that night.”

In People v. Cowman, 223 Cal.App.2d 109 [ 35 Cal.Rptr. 528 ], a case involving a similar factual situation, we discussed Rios v. United *625 States, supra, and a number of other decisions of the state and federal courts wherein the actions of police officers in detaining suspects for purposes of investigation were held proper notwithstanding that the attendant circumstances were not sufficiently suspicious to provide probable cause to arrest. In the light of this…

People appeal an order suppressing evidence and dismissing the information against defendant. (Pen. Code, § 1238, subd. (7).)

During the hearing on defendant's motion to suppress (Pen. Code, § 1538.5), Officer Joseph Toney of the Los Angeles police testified that he and his partner were patrolling an alley behind apartment buildings with open garages in an area of Hollywood where there had been "quite a few burglaries from motor vehicles." About 9 p.m. they saw defendant walk out from behind two buildings and look in the direction of the police vehicle. He then turned and walked back between the buildings. Toney's on-the-scene interpretation of this event was, according to his testimony:

"... It appeared to me as if the defendant was attempting to avoid any type of contact with us." [1]

The officers called defendant to their vehicle. Officer Toney asked him what he was doing there, and defendant said that he was looking for a friend named Dave. When asked where his friend lived, defendant said he didn't know. A pat-down of defendant revealed no weapons or tools. Toney asked for identification, and defendant produced a California driver's license. At this…