People v. Dukes

• Citation: 1 Cal.App.3d 913,82 Cal.Rptr. 218
• Decision Date: 19 November 1969
• Docket Number: Cr. 3565
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Wayne DUKES, Defendant and Appellant.
• Court: California Court of Appeals

Page 218

82 Cal.Rptr. 218

1 Cal.App.3d 913

The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Wayne DUKES, Defendant and Appellant.

Cr. 3565.

Court of Appeal, Fourth District, Division 1, California.

Nov. 19, 1969.

[1 Cal.App.3d 914] Peter B. Clarke, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

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

OPINION

GERALD BROWN, Presiding Justice.

Billy Wayne Dukes appeals his court tried conviction for possessing marijuana (Health & Saf.Code § 11530).

About 7:30 p.m. June 28, 1968, California Highway Patrol Officer Smith saw Dukes speeding south in his Pontiac convertible on Interstate 5 in San Diego County north of Oceanside. Pursuing Dukes, Officer Smith saw him following dangerously close to another car as a passenger in Dukes' car, David Mitchell, drank beer from a paper bag covered bottle.

Calling for back-up help, Officer Smith stopped Dukes and asked for his driver's license or other identification. Dukes had neither . Highway Patrol Officer Robinette arrived in response to Officer Smith's call for back-up help as Smith returned Dukes to the Pontiac.

Dukes' passenger, Mitchell, a co-defendant at the trial, threw his partially filled beer bottle in the rear of the car. Smith ascertained the bottle contained beer, then escorted Mitchell back to the patrol car where Mitchell produced an out-of-state driver's license. With Mitchell's consent, Smith searched his wallet finding a military identification bearing the name Herman Holiday. Being dissatisfied with Mitchell's identification, Smith arrested him for drinking in a car and took him into custody under Vehicle Code section 40302(a) because of insufficient identification.

When asked what he did after arresting Mitchell, Smith said:

'I started to search the defendant prior to placing him in the handcuffs, and as I reached into his left jacket pocket I encountered three objects. I pulled these out. They were hand rolled cigarettes.'

The three cigarettes taken from Mitchell contained marijuana. Smith arrested Mitchell for possessing marijuana. Smith then searched the Pontiac and found a packet of Zig-Zag cigarette papers in the glove compartment.

Officer Robinette saw Smith take the three marijuana cigarettes from Mitchell's pocket and saw Smith break open one of the cigarettes. Robinette arrested Dukes for allowing an open container in the car and took him into custody because he had no identification. Robinette searched Dukes, starting from the top and working down. Robinette first 'reached into his shirt pocket and found what appeared to be a cigarette wrapper with some debris.' Robinette did not first pat the outside of Dukes' pocket nor did he see a bulge in the pocket that would indicate a weapon. He simply reached into the pocket 'to see if there was possibly something that would be there of an offensive type.' The cigarette wrapper and debris found in Dukes' shirt pocket included a marijuana cigarette butt. Continuing his search Robinette found a pipe (for smoking) and some bullets.

Robinette said his standard practice in making a pat down search was to start at the top and work his way down going through all the pockets.

Robinette re-arrested Dukes for possessing marijuana. The officers took Dukes and Mitchell to the Oceanside police station where a thorough search of their persons disclosed additional marijuana debris. A police chemist found two marijuana seeds in Dukes' pipe. After Dukes' car was impounded, Officer Robinette and a sheriff's deputy searched the Pontiac and found three seeds which Robinette said appeared to be marijuana. Testimony concerning these seeds was stricken by the court as the physical evidence was not preserved nor was it identified by an expert. The Attorney General improperly refers to this stricken evidence in his brief, and compounds the impropriety by bootstrapping it into positive evidence the officers 'found three marijuana seeds in the rear of appellant's car.'

An arrest for a traffic offense justifies a limited search of the offender for weapons. People v. Graves, 263 Cal.App.2d 719, 733--734, 70 Cal.Rptr. 509, 519, states the rules:

'(A) valid arrest for a traffic offense permits a search by the arresting officer of the arrestee's person for weapons, but does not justify a complete search of his person for evidence of other unrelated crimes unless the officer has probable cause for believing that the traffic offender is guilty of a crime other than the traffic offense for which he is being arrested. In the latter...