Davis

The present appeal is by the People from a judgment of dismissal and order suppressing evidence rendered under the following circumstances.

*734 At 4:30 a.m. on Januaiy 13, 1977, Palo Alto Police Officer Deisinger observed two men standing by—exiting or entering—an automobile in the parking lot at the Travel Lodge Motel on El Camino Real in Palo Alto.

Except for the insignificant fact that their vehicle was blocking several unoccupied parked cars, and the lateness of the hour, there was nothing objectively odd or unusual, let alone criminal, in the circumstances. Nevertheless, Deisinger’s suspicions were aroused. He called on his radio for a backup, turned his car around to follow defendants’ vehicle, stopped it and requested both occupants—driver and passenger—to produce I.D.’s. The driver, Davis, did; but his passenger, Snowden, possessed none. Meanwhile, pursuant to the radio call, another officer, Johnson, had gone to the parking lot and there discovered an abandoned suitcase—as Deisinger knew prior to the arrival at the detention scene of a third officer, Cost. But while Johnson told Officer Cost he had stopped the car because of suspicious activity, he did not…

In disapproving the Irwin dictum (In re Tony C. (1978) 21 Cal.3d 888, 894 [ 148 Cal.Rptr. 366 , 582 P.2d 957 ]), our Supreme Court has not—as implied by the dissent—rejected or otherwise abrogated the rules governing detention as formulated in its earlier decisions. (See In re Tony C., supra, at pp. 892-893; see also People v. Harris (1975) 15 Cal.3d 384, 388-389 [ 124 Cal.Rptr. 536 , 540 P.2d 632 ] [cert, den., 425 U.S. 934 ( 48 L.Ed.2d 175 , 96 S.Ct. 1664 )]; People v. Flores (1974) 12 Cal.3d 85, 91 [ 115 Cal.Rptr. 225 , 524 P.2d 353 ]; People v. Gale (1973) 9 Cal.3d 788, 797-798 [ 108 Cal.Rptr. 852 , 511 P.2d 1204 ]; Irwin v. Superior Court (1969) 1 Cal.3d 423, 426-427 [ 82 Cal.Rptr. 484 , 462 P.2d 12 ]; People v. Moore (1968) 69 Cal.2d 674, 682-683 [ 72 Cal.Rptr. 800 , 446 P.2d 800 ] [overruled on other grounds, People v. Thomas, 19 *736 Cal.3d 630, 641 ( 139 Cal.Rptr. 594 , 566 P.2d 228 )].) The underlying rationale that the circumstances known to the police officer include specific and articulable facts causing him to reasonably suspect some crime-related activity involving the detainee has been reaffirmed rather than rejected. 1 (See In re Tony C., supra, at p. 893.) In…

I respectfully dissent.

The instant appeal was transferred to us by the Supreme Court “for reconsideration in the light of In re Tony C. (1978) 21 Cal.3d 888 .” (Italics added.) I think we have not, at least not properly, done so.

We are concerned only with the relation of the Fourth Amendment to a temporary police detention of a person, upon suspicion that he is engaged in criminal activity. My esteemed colleagues agree.

The state’s high court had tersely stated the applicable rule in People v. Gale, 9 Cal.3d 788, 797-798 [ 108 Cal.Rptr. 852 , 511 P.2d 1204 ], as follows: “ ‘While a detention of a citizen by a police officer based on a “mere *737 hunch” [italics added] is unlawful, if there is a rational suspicion that some activity out of the ordinary is taking place, and some suggestion that the activity is related to crime, a detention is permissible.’ ” (See also People v. Harris, 15 Cal.3d 384, 388-389 [ 124 Cal.Rptr. 536 , 540 P.2d 632 ] [cert, den., 425 U.S. 934 ( 48 L.Ed.2d 175 , 96 S.Ct. 1664 )]; People v. Flores, 12 Cal.3d 85, 91 [ 115 Cal.Rptr. 225 , 524 P.2d 353 ].)

The “rational suspicion” of People v. Gale, supra, 9 Cal.3d 788, need not have been a strong…