Barber v. Superior Court

Decision Date30 January 1973
Citation106 Cal.Rptr. 304,30 Cal.App.3d 326
CourtCalifornia Court of Appeals Court of Appeals
PartiesGeorge Washington BARBER et al., Petitioners, v. SUPERIOR COURT etc., FOR the COUNTY OF SAN DIEGO, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 12528.

Knoll & Scholl and Peter F. Knoll, Jr., Encinitas, for petitioners.

Edwin L. Miller, Jr., Dist. Atty., Terry J. Knoepp and Anthony D. Samson, Deputy Dist. Attys., for real party in interest.

No appearance for respondent.

OPINION

GERALD BROWN, Presiding Justice.

George Washington Barber and his wife Linda Marie Barber are charged with possessing narcotics (Health & Saf.Code § 11500), possessing narcotics for sale (Health & Saf.Code § 11530.5), both while armed with a deadly weapon (Pen.Code § 12022); with possessing marijuana (Health & Saf.Code § 11530), possessing a sap or blackjack (Pen.Code § 12020), carrying a loaded firearm in a vehicle (Pen.Code § 12031(a)), and carrying a concealable weapon in a vehicle (Pen.Code § 12025).

Their motions under Penal Code sections 995 and 1538.5 were denied. This petition, brought under Penal Code section 1538.5, seeks mandate to compel suppression of evidence found in a search of their automobile on the ground the search occurred during an unlawful detention. Their contention is meritorious. The petition should be granted.

On September 12, 1972, about 2:45 a.m., while on routine patrol, Escondido Officer Santibanez saw a car parked on the dirt shoulder of Via Rancho Parkway east of Highway 395. Santibanez's routine procedure was to 'check' vehicles in the area like that, his purpose being the check on the occupants' well-being to see 'if he could aid in their assistance in any way.'

After stopping his patrol vehicle behind the parked car, Santibanez walked up to Barber's automobile. Although he saw all persons in the car were sleeping and were in no obvious need of assistance, he nevertheless rapped on the left front window. George Barber rolled it down. The officer asked if everything wall all right; Barber said it was. Nothing indicated otherwise. Santibanez then probed further: he asked to see wome identification. barber showed him his social security card. Santibanez asked if Barber had any identification with his birth-date, preferably a driver's license. Barber did not produce other identification, but said he thought his driver's license was in some clothing he had in the trunk. Barber went to the trunk, checked some clothing, but came up with no identification.

Other officers arrived and began talking to Barber. Santibanez radioed for warrant checks. The other officers left. Santibanez told Barber he was running a check, and while it was being run Barber could wait in his car.

Within two minutes, the dispatcher notified Santibanez there were no local warrants outstanding, but said she was still checking the San Francisco area. Upon learning this, the officer drove about two blocks away. Within three or four minutes, Santibanez learned there were five misdemeanor warrants outstanding for Barber in the San Francisco area, called a cover unit, returned to Barber's car and arrested him. Barber was handcuffed and placed in the back seat of the police car.

Santibanez then went back to Barber's car and beamed his flashlight inside. He saw an automatic pistol on the driver's seat, picked it up and learned it was loaded. Continuing his search, in the console area he found seven .38 caliber live rounds. Santibanez then told Barber a charge of carrying a loaded weapon would also be made.

Searching further, the officer found a sap, or blackjack, in Mrs. Barber's purse. Searching the trunk, Santibanez saw a light blue cotton shirt wadded in a large ball. He felt something in it, unwrapped it and recognized three tinfoil-wrapped packages of heroin. Ten small bindles of heroin were within one. At the police station, officers found more heroin sewn into the pockets of the shirt; they also found a very small amount of marijuana (18.7 grams) loose and rolled into a cigarette, in a small tool box.

When Santibanez approached Barber's legally parked car and awakened him, he neither suspected nor had any reason to suspect any illegal behavior. His purpose, to ascertain the well-being of the occupants, was accomplished when ...

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14 cases
  • People v. Manning
    • United States
    • California Court of Appeals Court of Appeals
    • July 17, 1973
    ...Cal.App.2d 363, 365, 72 Cal.Rptr. 868, 869; 3 People v. Pearsall,Supra, 216 Cal.App.2d 196, 30 Cal.Rptr. 777; cf. Barber v. Superior Court, 30 Cal.App.3d 326, 106 Cal.Rptr. 304.) Manifestly, where such an attempt is made and is frustrated, it is reasonable for the officer to request the per......
  • People v. Linn
    • United States
    • California Court of Appeals Court of Appeals
    • October 8, 2015
    ...that four individuals put down their packages and stand next to the patrol car constituted a detention]; Barber v. Superior Court (1973) 30 Cal.App.3d 326, 330, 106 Cal.Rptr. 304 [officer detained a man by telling him to wait in his car while warrant checks were being run].) The United Stat......
  • Tony C., In re
    • United States
    • California Supreme Court
    • August 24, 1978
    ...with innocent activity as with criminal activity,' it was only consistent with innocent activity." (Barber v. Superior Court (1973) 30 Cal.App.3d 326, 330, 106 Cal.Rptr. 304, 306.) Nor has this court applied the Irwin dictum in any subsequent decision involving an investigative stop or dete......
  • State v. Knudsvig
    • United States
    • Washington Court of Appeals
    • August 30, 2018
    ...the passenger's conviction because the officer lacked grounds to ask the passenger for identification. In Barber v. Superior Court, 30 Cal. App. 3d 326, 107 Cal. Rptr. 304 (1973), a law enforcement officer approached George Washington Barber's parked car as part of a community caretaking fu......
  • Request a trial to view additional results

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