People v. Grace, Cr. 5255

• Court: California Court of Appeals
• Writing for the Court: AULT; GERALD BROWN, P.J., and WHELAN
• Citation: 32 Cal.App.3d 447,108 Cal.Rptr. 66
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Arthur GRACE, Defendant and Appellant.
• Docket Number: Cr. 5255
• Decision Date: 16 May 1973

Page 66

108 Cal.Rptr. 66 32 Cal.App.3d 447 The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Edward Arthur GRACE, Defendant and Appellant. Cr. 5255. Court of Appeal, Fourth District, Division 1, California. May 16, 1973.

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[32 Cal.App.3d 449] Appellate Defenders, Inc. by Kenyon C. Keller, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Mark L. Christiansen and Alan S. Meth, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

AULT, Associate Justice.

Defendant Edward Arthur Grace appeals from an order granting probation entered after he pleaded nolo contendere to possession of dangerous drugs (Health & Saf.Code § 11910, now § 11350) following denial of his motion to suppress evidence under Penal Code section 1538.5. He contends the motion to suppress evidence should have been granted because (1) the police stopped his car without legal justification, (2) his subsequent detention, interrogation, and pat-down search were [32 Cal.App.3d 450] illegal, and (3) his consent to a later search which revealed the contraband was not voluntary, and, in any event, was vitiated by the officer's prior illegal activity. The appeal is authorized by Penal Code section 1538.5(m).

The motion to suppress evidence was heard and determined on the transcript of the preliminary hearing. The only testimony bearing on the motion was given by the arresting officer, Eric Neal Dixon, of the San Diego Police Department. It reveals a patent boot-strap procedure based upon a succession of impermissible police intrusions which invalidate the search and require a reversal of the conviction.

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Dixon testified he saw Grace drive his car from a parking lot in San Diego onto Moraga Boulevard about 7:45 p.m. on March 27, 1972. It was dark. Observing the car from a distance of 75 yards and at a 30 angle, he noticed its right rear brakelight Appeared to be inoperative. Although he followed the car for several blocks, watched it make a left turn onto Kamloop Street and a right turn onto Taos Street, and brought it to a stop directly in front of him, Dixon said he never looked again to see if the right brakelight was functioning.

When Dixon turned on the police car's red light, Grace properly brought his car to an immediate stop. Dixon alighted from the police car, found the right rear brakelight Was operative, ¹ yet conducted an examination and test of the car which included having Grace 'check out' the headlights. This examination revealed the car had no high-beam headlights and no high-beam indicator. Dixon decided to issue Grace a warning for defective headlight equipment (Veh.Code §§ 24406 and 24408). ²

While his police partner wrote out the warning, Dixon decided to run a record check on Grace and to 'engage him in conversation.'

Having received nothing but complete cooperation from Grace, and having observed no suspicious act on his part, Dixon asked point blank if he had ever been arrested. Grace said he had been arrested for armed robbery and that he was then on probation. When Dixon inquired about the [32 Cal.App.3d 451] conditions of probation, Grace said he was not permitted to carry firearms or to consume alcoholic beverages. Dixon asked if the conditions of his probation made him subject to search, and Grace replied this was not included as a condition of his probation.

Dixon ordered Grace to exit his vehicle and proceeded to pat him down for weapons. He found no weapons. He conducted the pat-down search because Grace 'was not allowed to carry offensive weapons' as a condition of his probation. He pointed to no facts which gave any indication that Grace was carrying offensive weapons and did not testify he himself had any such belief or suspicion.

Immediately after the pat-down search, Dixon asked, 'May I search your person?' Grace replied: 'I thought you did.' Dixon said: 'No, I didn't. I just patted you down.' 'Now I would like to search you.' Grace said: 'Go ahead.'

Dixon searched Grace and removed from his jacket two foil-wrapped packages which he had felt during the pat-down search. The packages contained what he thought were, and what proved to be, LSD tablets. Dixon arrested Grace for possession of dangerous drugs.

DISCUSSION

Dixon's statement that he never looked again, after his initial observation, to see if the brakelight on the car he followed and stopped was operative, coupled with his admission that later inspection demonstrated the light was functioning, lends little credence to his claim he initially stopped the car because of an inoperative brakelight.

Assuming, however, that Dixon was merely unobservant and that the initial stop was legally justified, his right to detain the driver ceased as soon as he discovered the brakelight was operative and not in violation of statute. From that point

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on, Dixon had no right to detain Grace further, to require him to 'check out' the headlights, or to inspect the car to find equipment violations to justify further detention, a record check and interrogation.

Police officers are not empowered to stop cars, detain drivers and conduct tests to discover vehicle equipment violations without cause. Vehicle Code section 2806 confers such right on general police officers Only when they have Reasonable cause to believe the vehicle is...