Jennings

I concur with the majority’s holding that section 20A of the San Francisco Municipal Code must be read, to include “maliciousness” as an element of the offense it creates. I dissent, however, from that portion of the majority opinion which holds that the evidence in this case must be excluded.

The majority hold that there is insufficient evidence to support a strong suspicion petitioner acted with malice in obstructing or hindering sidewalk traffic and, therefore, her arrest was without probable cause. A review of the record, however, reveals that petitioner was observed by the arresting officer for five minutes prior to the arrest on the sidewalk at 582 Haight Street in San Francisco. She was standing by herself in the middle of the sidewalk in such a manner as to hinder or obstruct the flow of traffic. During that time the officer observed five to seven people who had to change their course of direction to gain access to Haight Street because of petitioner, including a couple who had to enter the street in order to pass around her.

Taken alone, this evidence would not be sufficient to support a strong suspicion of malice, but this was not the first instance in which the…

This petition challenges failure to suppress a plastic bag containing 20 balloons of heroin found under the back seat of a police car used to transport petitioner to jail. Petitioner argues that the seizure was unlawful because it was the fruit of an unlawful arrest made under an unlawful ordinance. We conclude that the obstruction ordinance must be read to require “maliciousness,” and that when the requirement is added, both the arrest and the seizure must be found unlawful.

Petitioner was arrested and placed in the patrol car because the officers observed her violate section 20 of the San Francisco Municipal *52 Code (Police Code), which, as amended in 1977, provides: “No person shall:

Petitioner offended this ordinance on January 16, 1979, when she stood in the area of 582 Haight Street in San Francisco at about 10:30 p.m. for a period of about five minutes. She stood on the sidewalk between the curb and the front door of 582 Haight Street. During the five minutes, five to seven persons passed by her, having to change their direction “to gain free access on Haight Street.” In fact “[a] couple had to walk in the street, that would be Haight Street itself, and the…

This petition challenges failure to suppress a plastic bag containing 20 balloons of heroin found under the back seat of a police car used to transport petitioner to jail. Petitioner argues that the seizure was unlawful because it was the fruit of an unlawful arrest made under an unlawful ordinance. We conclude that the obstruction ordinance must be read to require "maliciousness," and that when the requirement is added, both the arrest and the seizure must be found unlawful.

Petitioner was arrested and placed in the patrol car because the officers observed her violate section 20 of the San Francisco Municipal Code (Police Code), which, as amended in 1977, provides: "No person shall:

"A. Wilfully stand, sit, lie, or sleep in or under any street, sidewalk, passageway, or other public place in such a manner as to obstruct, hinder or delay the free passage or use in the customary manner of such street, sidewalk, passageway, or other public place.

"B. Wilfully stand, sit, lie or sleep in or upon any doorway or way of ingress or egress of any building or other structure without the consent of the owner thereof.

"Nothing contained herein shall be deemed to…