People v. Franklin

CourtCalifornia Court of Appeals
Writing for the CourtANDERSON; POCHE, Acting P.J., and SABRAW
Citation217 Cal.Rptr. 529,171 Cal.App.3d 627
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. McKenzie FRANKLIN, Jr., Defendant and Appellant. A026472
Decision Date26 August 1985

Page 529

217 Cal.Rptr. 529
171 Cal.App.3d 627
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
McKenzie FRANKLIN, Jr., Defendant and Appellant.
A026472
Court of Appeal, First District, Division 4, California.
Aug. 26, 1985.
Certified for Partial Publication *

[171 Cal.App.3d 630]

Page 530

Fiedler & Gardner, Robert Fiedler, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Ann K. Jensen, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

ANDERSON, Presiding Justice.

Defendant, McKenzie Franklin, Jr. (hereafter appellant or Franklin), appeals from a conviction entered upon a guilty plea.

On May 25, 1983, at approximately 8:30 a.m., two black men robbed Harud Piringian, the owner of a shoe store in Terra Linda shopping center, San Rafael, California. The first man entering the store (later identified as codefendant James D. Moss) was carrying a white tennis bag. While Moss [171 Cal.App.3d 631] was talking to the shopowner, a second

Page 531

man (identified subsequently as appellant) entered the store equipped with a large-barrelled shotgun displaying it in a menacing fashion. After Moss tied up Piringian, the pair walked around the shop, took money from the cash drawer and left the bound-up owner behind the counter. The holdup lasted about five minutes.

Soon after the robbers departed, the incident was reported to the police. Officer John Coen of the San Rafael Police Department received a radio dispatch about the robbery circa five minutes later. The first broadcast described the suspects as two male Negroes and alerted the police to the fact that a shotgun had been used in the commission of the crime. Following the radio dispatch, Coen drove to a position at the top of Lincoln Avenue near the freeway that, as a matter of standard practice, is occupied by the officers after reports of major crimes. From this vantage point Officer Coen soon noticed a "red-over-grey" car with two Negro males taking the Lincoln Avenue turnoff. Coen followed the car southbound on Lincoln. In the meanwhile, an updated report was radioed advising that the weapon used in the commission of the robbery had been a sawed-off shotgun and that one of the suspects was carrying a white tennis bag. In following appellant's vehicle, Officer Coen observed that the car's registration had expired and also that one of the rear brake lights was not working. Coen then decided to stop the car for traffic violations and requested a backup officer.

Paganinni, the officer arriving at the scene, recognized Franklin and informed Coen that Franklin was a known burglar. As the traffic stop continued, Franklin voluntarily alighted from his car and walked toward Coen's vehicle. Coen himself got out of his automobile and discussed with Franklin the causes necessitating the traffic stop. As they were talking, appellant's passenger, Moss, also exited the vehicle leaving its left door open. Paganinni, who went over to Moss, saw in plain view, a white tennis bag lying on the floorboard of the car. The sighting of this new evidence, along with the information already known, made the officers suspicious that appellant and his companion might have been involved in the Terra Linda robbery. As a consequence, the officers, as a matter of safety, pat-searched both suspects and also checked their vehicle for weapons. A shotgun shell turned up during the pat-down search of Franklin and a sawed-off shotgun was found under the passenger seat of the vehicle.

Based upon the new-found evidence, appellant and Moss were arrested. Shortly thereafter, an in-field identification procedure was conducted in which the suspects were placed in a live lineup consisting of "three or four" persons of similar description. Following a careful and repeated viewing, Piringian positively identified both appellant and Moss as the perpetrators of the robbery.

[171 Cal.App.3d 632] In the ensuing criminal complaint (and an identical information filed later) appellant and Moss 1 were charged with robbery (PEN.CODE, § 211)2 and possession of a sawed-off shotgun ( § 12020, subd. (a)). At the preliminary hearing appellant filed a section 1538.5 motion to suppress the evidence seized as a result of the stop and search and the in-field identification made by the victim. The magistrate granted both motions, 3 but denied appellant's additional request to suppress the in-court identification of appellant made at the preliminary hearing.

The superior court reversed the suppression orders of the magistrate and upheld the magistrate's ruling with respect to the validity of the in-court identification. Thereupon, appellant pled guilty to both counts of the information and was sentenced

Page 532

to an aggregate term of five years in state prison.

Appellant launches a two-pronged attack on the judgment of conviction. First, he contends that the stopping of his car and the ensuing search were unlawful and that the evidence obtained as a result thereof should have been suppressed by the trial court. Secondly, appellant maintains that the in-field identification at bench was impermissibly suggestive and should have been also excluded from evidence. We find no merit to either of these contentions and affirm the judgment.

I
SEARCH AND SEIZURE

Appellant's detailed claim is that the search and seizure in this case were invalid because: (a) the stopping of his car for a minor traffic violation was merely a pretext to obtain evidence of another crime (Amador-Gonzalez v. United States (5th Cir.1968) 391 F.2d 308; Taglavore v. United States (9th Cir.1961) 291 F.2d 262; United States v. Keller (N.D.Ill.E.D.1980) 499 F.Supp. 415; Blazak v. Eyman (D.Ariz.1971) 339 F.Supp. 40); (b) the pat-down search incident to a traffic violation was improper (Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Brisendine (1975) 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099; People v. Superior Court (1972) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205); (c) the officer exceeded the scope of a permissible pat-down search by viewing the shotgun shell in appellant's pocket (Sibron v. New York (1968) 392 U.S. [171 Cal.App.3d 633] 40, 88 S.Ct. 1889, 20 L.Ed.2d 917; People v. Smith (1971) 17 Cal.App.3d 604, 95 Cal.Rptr. 229); and (d) the car search for weapons was unreasonable (Michigan v. Long (1983) 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201). The points raised by appellant are discussed seriatim.

A. Pretextual Search

It is well settled that a police officer may stop a motorist to conduct a brief investigation and issue an appropriate citation when the officer observes a violation of the Vehicle Code. (People v. McGaughran (1979) 25 Cal.3d 577, 582, 159 Cal.Rptr. 191, 601 P.2d 207; People v. Superior Court, supra, 7 Cal.3d 186, 200, 101 Cal.Rptr. 837, 496 P.2d 1205.) While a traffic stop or arrest may not be used solely for the purpose of discovering evidence of another charge (i.e., to effect a so-called pretext search) (Taglavore v. United States, supra, 291 F.2d at p. 265; Blazak v. Eyman, supra, 339 F.Supp. at p. 42), it is recognized that a police officer is not barred from investigating an unrelated offense if the circumstances give rise to probable cause that the traffic violator is or has been involved in the commission of another crime.

The above proposition is supported by both the federal and California state law. Thus, in United...

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12 practice notes
  • People v. Miranda, No. H009669
    • United States
    • California Court of Appeals
    • August 4, 1993
    ...97 Cal.Rptr. 367; see Terry v. Ohio (1968) 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-1879, 20 L.Ed.2d 889; People v. Franklin (1985) 171 Cal.App.3d 627, 633, 217 Cal.Rptr. 529; see also People v. McGaughran (1979) 25 Cal.3d 577, 582, 159 Cal.Rptr. 191, 601 P.2d 207; United States v. Fouche (9t......
  • People v. King, No. A060701
    • United States
    • California Court of Appeals
    • November 22, 1994
    ...that a police officer may stop a motorist for investigation and citation when such a violation is observed. (People v. Franklin (1985) 171 Cal.App.3d 627, 633, 217 Cal.Rptr. 529.) These officers were careful not to exceed the scope of their authority. 9 We agree with the reasoning in People......
  • People v. Castaneda, No. G015547
    • United States
    • California Court of Appeals
    • June 20, 1995
    ...and ammunition was increased; opening the container under Castaneda's belt was likewise Page 23 warranted. (People v. Franklin (1985) 171 Cal.App.3d 627, 636, 217 Cal.Rptr. Castaneda's complaint that his conduct was open to a totally innocent interpretation does not invalidate the officer's......
  • People v. Parnell, No. B050275
    • United States
    • California Court of Appeals
    • June 17, 1993
    ...a pretext to search for evidence of other crimes. The facts do not support defendant's claim. As was noted in People v. Franklin (1985) 171 Cal.App.3d 627, 633, 217 Cal.Rptr. 529, "While a traffic stop or arrest may not be used solely for the purpose of discovering evidence of another charg......
  • Request a trial to view additional results
12 cases
  • People v. Miranda, No. H009669
    • United States
    • California Court of Appeals
    • August 4, 1993
    ...97 Cal.Rptr. 367; see Terry v. Ohio (1968) 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-1879, 20 L.Ed.2d 889; People v. Franklin (1985) 171 Cal.App.3d 627, 633, 217 Cal.Rptr. 529; see also People v. McGaughran (1979) 25 Cal.3d 577, 582, 159 Cal.Rptr. 191, 601 P.2d 207; United States v. Fouche (9t......
  • People v. King, No. A060701
    • United States
    • California Court of Appeals
    • November 22, 1994
    ...that a police officer may stop a motorist for investigation and citation when such a violation is observed. (People v. Franklin (1985) 171 Cal.App.3d 627, 633, 217 Cal.Rptr. 529.) These officers were careful not to exceed the scope of their authority. 9 We agree with the reasoning in People......
  • People v. Castaneda, No. G015547
    • United States
    • California Court of Appeals
    • June 20, 1995
    ...and ammunition was increased; opening the container under Castaneda's belt was likewise Page 23 warranted. (People v. Franklin (1985) 171 Cal.App.3d 627, 636, 217 Cal.Rptr. Castaneda's complaint that his conduct was open to a totally innocent interpretation does not invalidate the officer's......
  • People v. Parnell, No. B050275
    • United States
    • California Court of Appeals
    • June 17, 1993
    ...a pretext to search for evidence of other crimes. The facts do not support defendant's claim. As was noted in People v. Franklin (1985) 171 Cal.App.3d 627, 633, 217 Cal.Rptr. 529, "While a traffic stop or arrest may not be used solely for the purpose of discovering evidence of another charg......
  • Request a trial to view additional results

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