People v. Franklin

Decision Date26 August 1985
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. McKenzie FRANKLIN, Jr., Defendant and Appellant. A026472
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 was talking to the shopowner, a second 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.

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.

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.

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 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.

to an aggregate term of five years in state prison.

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. 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 States v. Hollman (8th Cir.1976) 541 F.2d 196 the defendant was under police surveillance for narcotic activities. When the police officers saw the defendant leaving in an automobile, they followed him and stopped the car for a traffic violation. On stopping, the defendant threw a small box out of the car. Defendant was then arrested. The ensuing search resulted in finding contraband (heroin) and a gun on his person. Defendant contended that the gun and narcotics were obtained as a result of a pretextual stop in violation of his Fourth Amendment rights. In rejecting defendant's argument, the federal court of appeals pointed out that while a traffic arrest may not be used as a pretext to search for evidence (United States v. Lefkowitz (1932) 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877), the search and seizure of evidence supporting another crime are justified when in the course of the traffic stop probable cause develops suggesting the defendant's involvement in that crime (United States v. Hollman, supra, 541 F.2d at pp. 198-199). In Klingler v. United States (8th Cir.1969) 409 F.2d 299, 306, the federal court likewise held that the existence, in fact, of probable cause for a robbery arrest prevented a vagrancy arrest from being pretextual.

The California cases also uphold traffic stops even if the officers are investigating other crimes. For example, in People v. Jardine (1981) 116 Cal.App.3d 907, 172 Cal.Rptr. 408, the officer had just received a radio dispatch that a nearby store had been robbed by two male caucasians using a sawed-off shotgun. While the officer was driving to the scene, he observed a van whose driver matched the general description of one of the perpetrators. The officer followed the van, stopped it for traffic violations and ordered the occupants out. A few minutes later other officers arrived at the scene. One of them looked into the van and found live shotgun shells scattered on the floor. After arresting the occupants of the vehicle, the officer conducted a car search during which the sawed-off shotgun was found. In upholding the legality of the stop and the search, the appellate court underlined that the traffic stop was proper because the driver of the car committed two traffic violations in the officer's presence. When the passengers got out of the car, the officers were able to see the live shotgun shells in plain view from outside the van. This observation, together with other informations known by the police officers about the robbery, provided probable cause to search the van for the shotgun, the instrumentality of that crime, because as the court emphasized "At this...

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