13 Cal.3d 528, 16520, People v. Brisendine

Docket Nº:16520
Citation:13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099
Opinion Judge:[10] Mosk
Party Name:People v. Brisendine
Attorney:[7] Garza, Kassel, Jordan & Welebir and Donald W. Jordan, Jr., for Defendant and Appellant. [8] Evelle J. Younger, Attorney General, Herbert L. Ashby, Chief Assistant Attorney General, William E. James, Assistant Attorney General, Derald E. Granberg and Conrad D. Petermann, Deputy Attorneys Gener...
Case Date:February 20, 1975
Court:Supreme Court of California

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13 Cal.3d 528

119 Cal.Rptr. 315, 531 P.2d 1099

The PEOPLE, Plaintiff and Respondent,


Michael Clayton BRISENDINE, Defendant and Appellant.

Cr. 16520.

Supreme Court of California

Feb. 20, 1975.

In Bank

As Amended Feb. 26, 1975.

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Garza, Kassel, Jordan & Welebir and Donald W. Jordan, Jr., San Bernardino, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Derald E. Granberg and Conrad D. Petermann, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant was charged with possession of marijuana (former Health & Saf.Code, § 11530; now § 11357) and possession of a restricted dangerous drug (former Health & Saf.Code, § 11910; now § 11377). His motion to suppress the evidence on the ground of illegal search and seizure (Pen.Code, § 1538.5) was denied. Following an unsuccessful petition for mandamus the matter was submitted to the trial court on the transcript of the preliminary hearing. Defendant was found guilty on both counts and placed on probation. He appeals from the order granting probation (Pen.Code, § 1237), contending that the contraband was obtained by means of an unlawful search and seizure.


On the night of June 3, 1970, two deputy sheriffs, Rodney Denney and Michael Norman, were inspecting for county fire code violations in the Deep Creek area of the San Bernardino National Forest. The locale had been designated a 'high fire hazard area' in which both open campfires and overnight camping were prohibited.

Upon finding two vehicles parked on the road the deputies proceeded into the forest on foot, where they came upon one Marlow Bartels, a lone

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camper whom they arrested for possession of marijuana. 1 Bartels informed the officers there were other campers further downstream who were also in possession of marijuana. The officers secured Bartels' wallet for identification, instructed him to remain at his campsite pending their return, and continued in the direction indicated.

The trail from Bartels' campsite was primitive. Large rock formations and deep canyon walls necessitated the use of hands in many places; at some points the narrowness of the route allowed only one person to pass at a time. Approximately half a mile from the place where they left Bartels the officers observed another campfire. Nearby were four young men in sleeping bags, one of whom was this defendant. Officer Norman placed the four under arrest for having an open campfire in violation of section 13 of appendix E of the Uniform Fire Code of San Bernardino County.

The intent of the officers at the time was to escort the youths out of the area and back to the patrol car, where they would be cited for the fire ordinance violation and ordered to appear before a magistrate at some future date. There was no intent to place the four in custody preparatory to any booking. The deputies justified the need to escort the campers out of the forest on the dual rationale that (1) camping was prohibited in the area and (2) they had left their citation books in their patrol car. 2

Prior to starting back, the officers conducted a thorough search of the persons and effects of all four youths. Denney picked up defendant's knapsack, squeezed it, determined that the outer layer was too solid to ascertain whether it contained weapons, and began a search of its compartments. The contraband was found in a side pocket of the pack: the marijuana was contained in a frosted plastic bottle with a cap on it, and the tablets of restricted dangerous drugs were wrapped in tinfoil and enclosed in envelopes.

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Following the search and confiscation of the contraband the four suspects were removed from the area and escorted back to the patrol car. Defendant was taken into custody; his three companions were given citations, made to sign promises to appear, and released.

Defendant attacks the legality of the search of his knapsack and the seizure of the contraband on the following grounds: (1) the evidence indicates that the police were conducting an exploratory search for narcotics, not weapons; (2) there were no specific, articulable facts or circumstances which reasonably warranted a search for weapons; and (3) even if the officers had a limited right to search for weapons, the extent of the search undertaken exceeded its legitimate scope.

For the reasons discussed Infra we conclude there was substantial evidence to support the trial court's finding that the search was legitimately concerned with weapons and not contraband. Similarly, since it was necessary for the officers to be in close proximity with defendant and his companions for a prolonged period of time, we are of the view that the circumstances reasonably warranted such a weapons search; that being the case, the officers were justified in investigating further when a pat-down of defendant's knapsack proved inadequate to disclose if it contained weapons. However, we hold that the officers' subsequent intrusion into the opaque bottle and envelopes inside the knapsack cannot be justified by the limited purpose which validated the search in its inception. Accordingly, we hold these items were obtained by means of an unreasonable search and seizure in violation of article I, section 13, of the California Constitution. 3 We shall discuss these points in the sequence indicated. 4


It is true there was evidence presented which could have led the trial court to conclude that the ostensible weapons search was merely a facade designed to provide justification for an exploratory search for narcotics. If such were the case, of course, the search would have been

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illegal. (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 830--831, 91 Cal.Rptr. 729; Cunha v. People (1970) 2 Cal.3d 352, 358, 85 Cal.Rptr. 160; People v. Cruz (1968) 264 Cal.App.2d 437, 441, 70 Cal.Rptr. 249.) The search process was lengthy and exhaustive. 5 In view of the fact that Bartels had told the officers that the campers were in possession of marijuana, the evidence might have supported an inference that the investigation was made in the hope of discovering such contraband. In addition, objects as the campsite which could have been readily utilized as weapons were largely ignored by the officers, and the arrestees were allowed to retain control of them during the long treck back. 6 Finally, the deputies seemed to exhibit little fear of the suspects, frequently turning their backs to them during the course of the search 7 and taking no steps to secure them either during the search, on the trip back, or at the patrol car.

On the other hand, the testimony of the officers suggests that under the circumstances they had cause to fear for their safety. Officer Denney explained, 'Primarily because of the terrain, we could not secure them. We had at that time arrested them, taken their freedom away from them. I had never seen any--either (sic) four of the suspects before. I did not know their background, their past, or if they were wanted personnel. I didn't know if they had weapons or what type of attitude they would have when we escorted them out of the Deep Creek area. I would have been in dereliction of my duty if I didn't search for weapons.'

Thus the terrain, the lateness of the hour, and the unfamiliarity of the suspects might well have led a prudent officer to take reasonable precautions. The trial court impliedly found this was the deputies' purpose, stating, 'I think it was . . . proper to search for weapons.' As an appellate court we are bound to 'view the evidence in the light most

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favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' (Guidi v. Superior Court (1973) 10 Cal.3d 1, 10, fn. 7, 109 Cal.Rptr. 684, 690, 914.) '(Our) responsibility (is simply) to measure the facts, as found by the trier, against the constitutional standard of reasonableness.' (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 15, 623.) We conclude that the court's determination that the object of the search was weapons is supported by substantial evidence and cannot be disturbed on appeal. (People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, and cases cited.)


Defendant next contends that, assuming the search was for weapons, it was illegal because the officers could not point to specific, articulable facts justifying such a search. He principally relies on People v. Superior Court (1972) 7 Cal.3d 186, 202--206, 101 Cal.Rptr. 837 (hereinafter called Simon), for the proposition that if an arrestee is cited for an offense which typically has neither 'instrumentalities' nor 'fruits,' no search is allowable unless there are particular facts present which would reasonably lead the officer to believe the subject was armed.

In analyzing the present case in light of Simon we encounter first a difficulty in classification. There, in reviewing the permissible scope of a search incident to an ordinary traffic arrest, we were able to divide offenders into three discernible groups (7 Cal.3d at pp. 199--201, 101 Cal.Rptr. 837): (1) those who are merely cited and immediately released (Veh.Code, §§ 40500, 40504), (2) those who may or must be taken before a magistrate and given the option to post bond (Veh.Code, §§ 40302, 40303), and (3) those who are arrested for felonies and booked according to the general Penal Code provisions on felony arrests (Veh.Code, § 40301; Pen.Code, § 7, subd. (21)).

Classification into one of the foregoing categories is essential to analysis,...

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