People v. Adam

• Citation: 1 Cal.App.3d 486,81 Cal.Rptr. 738
• Decision Date: 05 November 1969
• Docket Number: Cr. 15620
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Luis ADAM, Defendant and Respondent.

Page 738

81 Cal.Rptr. 738

1 Cal.App.3d 486

The PEOPLE of the State of California, Plaintiff and Appellant, v. Luis ADAM, Defendant and Respondent.

Cr. 15620.

Court of Appeal, Second District, Division 5, California.

Nov. 5, 1969.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., County of Los Angeles, Harry Wood, Head, Appellate Division, Robert J. Lord, Deputy Dist. Atty., for appellant.

Richard S. Buckley, Public Defender, John Hayes, James L. McCormick and Steven Kaye, Deputy Public Defenders, for respondent.

KAUS, Presiding Justice.

The People appeal from an order setting aside an information charging defendant with possession of marijuana. (Health & Saf.Code, § 11530.)

The only witness who testified at defendant's preliminary hearing was Officer Cron of the Los Angeles Police Department. On March 15, 1968, at 1:30 p.m. Cron and another officer, wearing plain clothes, were in an unmarked police vehicle. Cron saw defendant driving a 1956 Buick, the left windwing of which was broken. Defendant's physical description was 'similar' to that of a burglary suspect who on an unspecified earlier date had stolen a 1964 or 1965 Volkswagen from a garage in the 'immediate' area. The description he had of the suspect was: a male Mexican, 23 to 26, five ten, 160 pounds, black hair.' Defendant was southbound on Silverlake Boulevard. From time to time the officer saw him look to the rear toward the police vehicle. Defendant's car was swerving from side to side without, however, crossing the center line. After following defendant for about five blocks, the officers stopped him. Cron approached defendant who was still sitting in his car. They had a short conversation. Defendant produced a valid driver's license and a registration for the car which corresponded with the name and address on the license. Defendant's pupils appeared dilated and his speech slurred. The officer did not smell alcohol. Defendant was then asked to step out of the vehicle. His stance was slightly unsteady. The officer then observed that defendant 'closely fit the description of the burglary suspect.' This, presumably, meant that defendant was a male Mexican, 23 to 26 years old, 5 10 tall, weighing 160 pounds and possessed of black hair. At that point the officer gave defendant a 'cursory search' for weapons. As he passed his hand over defendant's right shirt pocket he felt 'what appeared to be hand-rolled cigarettes.' He asked defendant what he had in his pocket. Defendant said that he had papers. Cron pointed out to him that they were all rolled up and wanted to know how many 'sticks of weed' defendant had. Defendant replied: 'Four.' At this point he was placed under arrest. Marijuana was then removed from his pocket. It consisted of four hand rolled and a partially burned cigarette contained in a black cloth sack.

The magistrate apparently believed that the officer was able to tell the difference between hand rolled and manufactured cigarettes, contained in a cloth sack, inside a shirt pocket, just by 'passing' his hands over the pocket. He also felt that the cursory search was proper because: 'If they don't, * * * they would be booking everybody for suspicion * * *' ¹

The superior court held that in order to detect the physical nature of the cigarette, the officer necessarily had to have made more than a cursory search for weapons.

We do not reach that point.

We note at the outset that at no time have the People claimed that defendant's manner of driving, his speech and appearance gave Cron the right to arrest him for an apparent violation of section 23105 of the Vehicle Code (driving under the influence of a narcotic) or a similar offense. If the facts known to the officer, viewed objectively, justified such an arrest, it would make no difference that he proceeded more cautiously. (People v. Chimel, 68 Cal.2d 436, 440--441, 67 Cal.Rptr. 421, 439 P.2d 333, rev'd on other grounds sub nom. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.) Nor would this court be bound by any concession that no arrest was justified. (Desny v. Wilder, 46 Cal.2d 715, 729, 299 P.2d 257; People v. Mooney, 175 Cal. 666, 166 P. 999; cf. Henry v. United States, 361 U.S. 98, 104--105, 80 S.Ct. 168, 4 L.Ed.2d 1349. Clark, J. dissenting.) The reason why we must ignore--and why the superior court properly ignored--the fairly tenable theory that Cron was entitled to make a full-blown arrest (cf. People v. Cano, 241 Cal.App.2d 484, 487, fn. 1, 50 Cal.Rptr. 654) is that at no time was defendant put on notice that he was facing such a claim. (Giordenello v. United States, 357 U.S. 480, 487--488, 78 S.Ct. 1245, 2 L.Ed.2d 1503; cf. People v. Hamilton, 71 Cal.2d ---, --- ^*, 77 Cal.Rptr. 785, 454 P.2d 681.) Had there been any hint that such was the People's contention, defendant would have been more motivated to adduce whatever evidence he had, which showed that his driving and physical condition were not as described. (Jennings v. Superior Court, 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304.) ²

Defendant claims that the officers did not even have the right to stop him, let alone order him out of the car. He is certainly mistaken on the first claim (People v. Henze, 253 Cal.App.2d 986, 990, 61 Cal.Rptr. 545; People v. Anguiano, 198 Cal.App.2d 426, 429, 18 Cal.Rptr. 132) and probably also on the second. ³

The People on the other hand, satisfied that there was nothing wrong with stopping the car and ordering the defendant out, do not fully appreciate the height of the next hurdle, namely proof that the circumstances warranted a pat-down for offensive weapons. They simply state: 'The People submit that as a part of the investigation it was proper to ask defendant to step from the car, and to conduct a pat-down for offensive weapons. In so doing the officer was only taking ordinary precautions for his own safety. This is well recognized as proper. * * *'

The right to detain temporarily and to make a superficial search for weapons 'if the circumstances warrant it' was recognized in People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658. In 1963, when Mickelson was filed, the United States Supreme Court had not pronounced itself on the problem. It did so five years later in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Just as our own Supreme Court had done, it recognized the existence of a right, on the part of the police, to make a self-protective frisk for weapons, provided however that certain conditions are recognized and limitations observed. We are, of course, bound to demand that records show that these conditions and limitations are given effect at the magisterial and trial levels of the judicial process.

The facts of Terry should be briefly recalled. An officer had observed two men making an 'elaborately casual and oftrepeated reconnaissance' (Terry v. Ohio, Supra, 392 U.S. at 6, 88 S.Ct. 1868) of a store window. He reasonably concluded that they were 'casing a job, a stick-up,' and that 'they may have a gun.' He then confronted them and patted down the outside of Terry's clothing. He felt a pistol in a pocket of the overcoat which he later removed. Characterizing even such a casual frisk as a 'serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, * * * not to be undertaken lightly,' holding that Terry had been 'seized' and that the gun had been found as a result of a 'search,' the court nevertheless found no violation of the Fourth Amendment under the circumstances of the case. Having in mind that it was the officer's proper function to investigate the conduct he had observed, that he had a legitimate interest in making sure 'that the person with whom he (was) dealing (was) not armed with a weapon that could unexpectedly and fatally be used against him' (Terry v. Ohio, Supra, 392 U.S. at 23, 88 S.Ct. at 1881), that society cannot ask police officers to take unnecessary risks and that American criminals have a long tradition of armed violence, the court concluded that a limited protective search of the outer clothing of a person whose conduct is being investigated, does not do violence to the Fourth Amendment.

The People interpret Terry as if it stood for the proposition that simply because an officer may temporarily 'seize' a suspect it follows automatically that he may frisk him for weapons. The Terry court went out of its way to negative such a notion. It said emphatically that 'in justifying the particular intrusion the police officer must be able to point to Specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' (Terry v. Ohio, Supra, 392 U.S. at 21, 88 S.Ct. at 1880. Italics added.) In a footnote appended to that statement the court observes: 'This demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence. (Citations omitted.)' (Terry v. Ohio, Supra, 392 U.S. at 21, fn. 18, 88 S.Ct. at 1880.) The text goes on to say: '* * * And in making that assessment it is imperative that the facts be judged Against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925); Beck v. Ohio, 379 U.S. 89, 96--97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more...