People v. Britton

• Decision Date: 05 August 1968
• Docket Number: Cr. 479
• Citation: 264 Cal.App.2d 711,70 Cal.Rptr. 586
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Bobby Ray BRITTON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 586

70 Cal.Rptr. 586

264 Cal.App.2d 711

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bobby Ray BRITTON, Defendant and Appellant.

Cr. 479.

Court of Appeal, Fifth District, California.

Aug. 5, 1968.

Hearing Denied Oct. 3, 1968.

Albert C. Buehler, Sacramento, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and Arnold O. Overoye, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

STONE, Associate Justice.

Defendant appeals from a conviction of possession of marijuana upon the sole ground the package of marijuana introduced in evidence over his objection was taken from his person by an illegal search and seizure.

At 2 a.m. on December 31, 1966, Deputy Sheriffs Mitchell and Koozin were patrolling in the area of the Jumbo Mart, Florin Street and Power Inn Road, Sacramento County, paying particular attention to the market because of a report that the burglar alarm system was not functioning properly. They saw defendant's Ford and another automobile in the market parking lot; as they approached, the other vehicle left. Defendant circled the lot and drove east on Florin Street. There is no evidence that he was aware of the presence of the patrol car, and the officers had no interest in him or his automobile at that time. Nothing was amiss at the market, but a few minutes later the officers saw defendant's Ford preparing to make a U-turn at Power Inn Road and Florin Street. They decided to see why he remained in the area at that late hour, but they had no intention of arresting him.

The officers drove up behind defendant's automobile and turned on their overhead lights, whereupon defendant pulled to the side of the road and stopped. Deputy Koozin, the passenger in the police vehicle, got out and stood on the driver's side of defendant's car. Deputy Mitchell followed him, remaining out of range of the headlights to cover his partner until there was no indication of danger. Mitchell walked up to the driver's side of the Ford, flashed his light inside and saw the barrel of a gun protruding six or eight inches from under the front seat. Subsequent investigation disclosed a broken .22 caliber rifle, completely inoperative, a fact unknown to the officers at the time. Defendant had the odor of liquor on his breath but was not belligerent, and complied when he was ordered out of the car. Deputy Mitchell testified that then a 'regular frisk search' for weapons took place. However, the officers ordered defendant to remove all articles from his clothing and place them on the trunk of the car; after that, Deputy Koozin patted his clothing to be certain he was not armed. Koozin felt a soft bulge on the left side of defendant's jacket and observed an object protruding from the pocket. He asked defendant what it contained, and defendant replied, 'I don't know.' Koozin removed the package and handed it to officer Mitchell, who unwrapped three plastic or cellophane bags, one inside the other, and found that the innermost bag contained a vegetable substance which the officer thought to be marijuana. It was, and at the trial the package was introduced in evidence over the objection of defendant. The whole point of this appeal is whether the package was obtained by an illegal search.

It is clear that at the time the officers stopped defendant they did not intend to arrest him; they merely decided to question him because of his activities noted above, which aroused their suspicions. Thus the admissibility of the package rests upon the legality of the search conducted by the officers when they stopped defendant for questioning.

The United States Supreme Court recently came to grips with the question of an officer's right to 'frisk' or 'pat down' in circumstances short of an arrest and concurrent search. (Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Sibron v. State of New York, Peters v. State of New York), 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917.)

The first case of the trilogy, Terry v. State of Ohio, postured the problem within the context of the Fourth Amendment proscription against unreasonable searches and seizures, made applicable to the states by the Fourteenth Amendment. (Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 1081.) The court commented, 88 S.Ct. at page 1877 of Terry:

'Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. * * * There is some suggestion in the use of such terms as 'stop' and 'frisk' that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a 'search' or 'seizure' within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house and prosecution for a crime--'arrests' in traditional terminology. * * * it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a 'search."

After noting the sanctity of the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, the court pointed out that the Fourth Amendment protects people, not places, and this protection applies to an on-the-street encounter between the citizen and the police. The court then turned to the other aspect of the problem, the right of a police officer to protect himself by a frisk or pat down of a suspect before questioning, and concluded:

'* * * we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.' (p. 1881.)

Confrontations between the police and the citizen, the court observed, range from friendly intercourse to a strong suspicion that the person has committed a crime. Because of this broad spectrum of encounter, no general formula can tell us in advance where the line is to be drawn between an individual's right to protection under the Fourth Amendment and the policeman's right to protect himself and others by a frisk. However, guidelines for determining whether the officer used reasonable judgment in making a 'frisk' in a particular case, are laid down in Terry. These criteria point to a pragmatic resolution of the conflict between the overlapping concepts of the Fourth Amendment protection against unreasonable search and seizure, and the police officer's need to protect himself and others. The court explained, in Terry, that the test is 'a dual one--whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstance which justified the interference in the first place.' (p. 1879.)

The first half of the test, 'whether the officer's action was justified at its inception,' was given the following explication:

'Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. (Citations.) And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.' (p. 1883.)

When measured by the standard of the 'reasonably prudent man' the officers' decision to stop defendant for questioning was justified. They had been advised that the burglar alarm at the store was not working properly, which alerted them when they observed defendant on the market parking lot at 2 a.m.; they noticed that he circled the lot before leaving, which was unusual, that he drove a short distance along a street, made a U-turn and returned to the market area. In...