P. v. DAVID MCDONALD

Filed 3/8/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

This case presents the question whether it is a crime under California state law to urinate in public.

David McDonald challenges the denial of his motion to suppress evidence under Penal Code section 1538.5.[1] The evidence was seized after McDonald was detained for urinating in a public place. McDonald claims the detention and search incident thereto were unlawful because the Penal Code does not criminalize his act. As the officer who detained McDonald could lawfully do so only on the basis of a reasonable articulable suspicion McDonald was engaged in, or about to engage in, criminal activity, we are compelled to decide what appears to be a question of first impression--whether the California Legislature has criminalized public urination. We answer the question in the affirmative and shall therefore uphold the denial of McDonald's motion to suppress.

Factual and Procedural Background

Oakland Police Officer Francisco Rojas observed McDonald urinating in the parking lot of a restaurant in the 3000 block of San Pablo Avenue in Berkeley on Sunday, January 26, 2003, at 11:23 a.m. At the time, the restaurant was closed, and the parking lot was empty, save for a vehicle that appeared to belong to defendant's acquaintance. Officer Rojas, who was driving on the far side of San Pablo Avenue, could tell that McDonald was urinating, and Rojas saw McDonald zipping up his pants as the officer approached. Officer Rojas intended to cite McDonald for urinating in the parking lot, and asked him for identification. McDonald said he did not have an I.D. but provided his name, date of birth, and address. The officer placed McDonald under arrest while he verified this information. When he searched McDonald incident to the arrest, Officer Rojas found six â€