People v. Bordwine

• Decision Date: 18 December 1968
• Docket Number: Cr. 14813
• Citation: 268 Cal.App.2d 290,74 Cal.Rptr. 1
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Charles BORDWINE, Defendant and Appellant.

Page 1

74 Cal.Rptr. 1

268 Cal.App.2d 290

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Charles BORDWINE, Defendant and Appellant.

Cr. 14813.

Court of Appeal, Second District, Division 2, California.

Dec. 18, 1968.

Roger S. Hanson, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas Kerrigan, Deputy Atty. Gen., for plaintiff and respondent.

NUTTER, Associate Justice pro tem ^*.

Appellant was found guilty of possession of dangerous weapons and possession of narcotics, after the case was submitted to the trial judge on the transcript of the preliminary hearing. Appellant appeals from his sentence to the state's prison on both counts.

At approximately 8:30 or 8:45 of the evening of January 3, 1967, Officer Maltsberger, a Los Angeles County Deputy Sheriff, was on burglary patrol on the east side of Lancaster. It was dark. He observed that the car in which appellant was riding did not have proper illumination of the rear license plate. The officer turned on the patrol car's red light and honked the horn. The officer noticed the driver of the car leaned forward and to the right and reach down just prior to stopping the car. Officer Maltsberger dismounted from the patrol car and approached the car from the right side. Appellant was on the passenger seat. Officer Maltsberger's partner recognized the driver as having been in police custody before. Before he reached the door of the car, Officer Maltsberger's partner signaled and said 'He's got something' and pointed at appellant. Officer Maltsberger recognized appellant from past dealings with him and asked him to step out of the car. Appellant complied. The officer looked into the car from the outside and saw in plain sight a plastic package containing some .38 wad cutter ammunition (target ammunition). The ammunition was clearly visible in the plastic package.

The officer picked up the ammunition and asked defendant and his companion where the gun was that went with the ammunition. Appellant stated he did not have the gun--he left it at home. Officer Maltsberger then made a light patdown and cursory search of both appellant and the driver of the vehicle for weapons. In appellant's waistband the officer found a chrome automatic containing a clip with four rounds of ammunition. The officer told appellant he was under arrest for carrying a concealed weapon; he continued his search of appellant and found a black handled stiletto type switchblade in appellant's left front pocket, and a straight razor in appellant's left shirt pocket.

In appellant's jacket, under the lining, the officer found a vial containing capsules. (Later identified as sodium secobarbital.) In a Winston cigarette box, also under the lining of appellant's jacket, the officer found 51 white tablets. (Later identified as amphetamine sulphate.) In appellant's pocket the officer found what appeared to be marijuana. (Later identified as marijuana.) It was stipulated that the gun found on appellant was tested and found operable.

Appellant contends there was no sufficient basis to justify the temporary detention and search of appellant at the time he was stopped because of a possible Vehicle Code violation. We do not agree.

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