People v. Collins

• Decision Date: 23 January 1970
• Docket Number: Cr. 13952
• Citation: 83 Cal.Rptr. 179,1 Cal.3d 658,463 P.2d 403
• Parties: , 463 P.2d 403 The PEOPLE, Plaintiff and Appellant, v. William COLLINS, Jr., Defendant and Respondent.
• Court: California Supreme Court

Page 179

83 Cal.Rptr. 179

1 Cal.3d 658, 463 P.2d 403

The PEOPLE, Plaintiff and Appellant, v. William COLLINS, Jr., Defendant and Respondent.

Cr. 13952.

Supreme Court of California,

In Bank.

Jan. 23, 1970.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood and Joel Paul Hoffman, Deputy Dist. Attys., for plaintiff and appellant.

Richard S. Buckley, Public Defender, Loren Mandel, James L. McCormick and Harold E. Shabo, Deputy Public Defenders, for defendant and respondent.

PETERS, Justice.

Defendant was charged with possession of marijuana. (Health & Saf.Code, § 11530.) After a hearing, the superior court granted defendant's motion to set aside the information (Pen.Code, § 995), and dismissed the case. The People appeal.

On September 16, 1968, about 7:30 p.m., Officers Rada and Carreon of the Los Angeles Police Department were patrolling in a black and white police car on Gage between Avalon and Central in south-central Los Angeles. Theirs was the only vehicle on the street. Several days earlier, the officers had been informed at 'rollcall' that a grand theft auto suspect, described only as a male Negro, 6 feet tall and weighing 160 pounds, might be found in an area centered a block from that location.

They saw defendant and a companion walking on a well lit sidewalk on the opposite side of the street. Although defendant met the general description of the auto theft suspect, Officer Rada testified that he would not have stopped the defendant but for the latter's 'furtive actions.' These actions consisted of defendant's turning towards the police car--when it emitted 'a clanging noise in the muffler'--and thrusting his hand into his left front pants pocket. Officer Carreon 'whipped' the car around and brought it to a stop. As Officer Rada approached on foot, the defendant again thrust his hand into his pocket and quickly withdrew it. The officers ordered defendant to stop, and he complied.

After approaching further cautiously because 'maybe (defendant) had a weapon,' the officers asked for identification. Defendant replied that he had none. Thereupon Officer Carreon commenced a 'patdown' search of defendant, while Officer Rada searched the inside of defendant's companion's pockets. When he ran his hand over defendant's left front pants pocket, Officer Carreon felt a 'little lump;' at that instant, defendant pushed the officer's hand away and said, 'Get your hand away from there. You can't search me.' Officer Carreon had not seen the bulge before feeling it. 'Thinking it was a weapon,' the officer put his hand into defendant's pocket and extracted what turned out to be a 'lid' of marijuana loosely pocked in a plastic bag.

Initially, we have grave doubts as to the lawfulness of defendant's detention, based as it was upon his meeting a general description, turning towards the source of an unusual noise, and making two gestures towards his pocket. (Terry v. Ohio, 392 U.S. 1, 16, 19, fn. 16, 20--22, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Hunt, 250 Cal.App.2d 311, 58 Cal.Rptr. 385.) A description as general as 'A male Negroe (sic), six foot, 160 pounds' fails to distinguish defendant from a substantial portion of the population of south-central Los Angeles. The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police (1967)--cited by Terry for the proposition that misuse of field interrogations is a major source of friction between police and minority groups (392 U.S. at p. 14, fn. 11, 88 S.Ct. 1868)--strongly criticizes the use of such descriptions. (Task Force Report: The Police, Supra, at pp. 186--187.)

We find it unnecessary, however, to determine the validity of the detention. Even assuming the detention was lawful, the search of defendant exceeded lawful bounds.

Terry v. Ohio, Supra, reaffirmed the settled principles that 'a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope' and that the 'scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible.' (392 U.S. at pp. 17--19, 88 S.Ct. at p. 1878.) With reference to self-protective weapons searches justified by circumstances short of probable cause for arrest, the court noted: 'The sole justification of the search * * * is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.' Id., at p. 29, 88 S.Ct. at p. 1884.) And in upholding the search before it, the court was careful to point out that the officer 'patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He never did invade (one companion's) person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.' (Id., at pp. 29--30, 88 S.Ct. at p. 1884.)

Sibron v. New York (1968) 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, reversed a possession of heroin conviction of a defendant who was observed talking over a period of eight hours to six or eight persons known to the arresting officer to be narcotics addicts. At midnight, the end of this period, the defendant entered a restaurant and spoke to three more known addicts. Although the arresting officer heard none of the conversations, he approached the defendant, asked that the latter accompany him outside, said 'You know what I am after,' and, when the defendant mumbled something and reached into his pocket, the officer simultaneously thrust his hand into the pocket and withdrew the heroin. Assuming arguendo that there were adequate grounds to search the defendant for arms, the court held: '(T)he nature and scope of the search conducted * * * were so clearly unrelated to that justification as to render the heroin inadmissible. The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into Sibron's pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception--the protection of the officer by disarming a potentially dangerous man. Such a search violates the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents.' (392 U.S. at pp. 44--45, 65--66, 88 S.Ct. at p. 1904.)

In balancing the safety of police officers against the Fourth Amendment's proscription of unreasonable intrusions, Terry and Sibron thus conclude that in searching a legally detained individual reasonably suspected of being armed, a police officer must be limited to 'a careful exploration of the outer surfaces of (the) person's clothing' (Terry v. Ohio, Supra, 392 U.S. at p. 16, 88 S.Ct. at p. 1877) until and unless he discovers specific and articulable facts reasonably supporting his suspicion. Only then may an officer exceed the scope of a pat-down and reach into the suspect's clothing for the limited purpose of recovering the object thought to be a weapon. As with other searches without warrants, the burden of pointing to 'specific and articulable facts which, taken together with rationale inferences from those facts, reasonably warrant' such an intrusion properly rests with the People. (Compare Terry v. Ohio, Supra, 392 U.S. at p. 21, 88 S.Ct. at p. 1880, with People v. Johnson, 68 Cal.2d 629, 632, 68 Cal.Rptr. 441, 440 P.2d 921.)

Feeling a soft object in a suspect's pocket during a pat-down, absent unusual circumstances, does not warrant an officer's intrusion into a suspect's pocket to retrieve the object. A pat-down must 'be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.' (Terry v. Ohio, Supra, 392 U.S. at p. 29, 88 S.Ct. at p. 1884). The obvious purpose of holding that officers cannot go beyond exploration of the surfaces of a suspect's clothing without being 'able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that (additional) intrusion' is to ensure that the scope of such a search cannot be exceeded at the mere discretion of an officer, but only upon discovery of tactile evidence particularly tending to corroborate suspicion that the suspect is armed. (Id., at pp. 21--22, 88 S.Ct. at p. 1880.) To permit officers to exceed the scope of a lawful pat-down whenever they feel a soft object by relying upon mere speculation that the object might be a razor blade concealed in a handkerchief, a 'sap,' or any other atypical weapon would be to hold that possession of any object,...