People v. Hana, Cr. 8234

• Decision Date: 18 May 1970
• Docket Number: Cr. 8234
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Paul HANA, III, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 721

86 Cal.Rptr. 721

7 Cal.App.3d 664

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Paul HANA, III, Defendant and Appellant.

Cr. 8234.

Court of Appeal, First District, Division 2, California.

May 18, 1970.

John D. Nunes, Public Defender, Alameda County, James A. Kealey, Asst. Public Defender, Oakland, for appellant.

Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, John F. Henning, Jr., Deputy Atty. Gen., San Francisco, for respondent.

TAYLOR, Associate Justice.

Defendant appeals from a judgment of conviction entered after a court trial finding him guilty of the possession of marijuana, in violation of Health and Safety Code section 11530. He contends that the contraband introduced into evidence against him was obtained as the result of an unlawful search and seizure as: 1) the arresting officer did not have reasonable grounds to believe that he and his companions were armed so as to justify a 'frisk' search; 2) and even if proper, the 'frisk' exceeded the proper bounds permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; and 3) there was insufficient probable cause to arrest him for the possession of marijuana.

The matter was submitted on the transcript of the combined preliminary hearing and proceedings under defendant's motion to suppress certain evidence (Pen.Code § 1538.5). The following pertinent facts appear: On November 29, 1968, at approximately 10:45 in the morning, Officer Cox of the Fremont Police Department, was in the vicinity of Olive Avenue and Chadbourne. Cox observed a red Ford panel truck with a defective left rear brake light and stopped the vehicle pursuant to Vehicle Code section 24603, subdivision (e). ¹ Defendant, who was driving the truck, was accompanied by his brother and another boy named Cooper. After Cox obtained identification from defendant and checked the registration of the vehicle, he advised defendant that he was being stopped for the defective tail light.

To check the light, Cox stepped on the brake pedal from the driver's side. About this time, Officer Tanner, the cover officer arrived. As the brake light flashed dimly, no traffic citation was issued. However, as Cox stepped on the brake pedal, he saw in the open glove compartment a Shell Oil Company paper matchbook with the top half of its cover missing and a closed penny Diamond matchbox. Cox also noticed a second Diamond penny matchbox and a white topless matchbook in the bed of the truck but did not pick up either item at that time.

Cox had several years of training and experience in narcotics arrests and knew that the covers of matchbooks were used as holders or 'crutches' for the ends of marijuana cigarettes, and that penny matchboxes were frequently used as containers for a quantity of marijuana usually sold for about $5.00. Accordingly, he was of the opinion that the presence of the matchbox and topless matchbook in the glove compartment, and the matchbox and toples matchbook in the bed of the truck, indicated a 'good possibility that illegal contraband was also in the vehicle itself.'

Cox advised defendant of his rights and requested permission to search the truck. Defendant consented and Cox then proceeded with the search of the vehicle. While Cox searched the driver's side of the truck, defendant and his two companions remained standing at the rear of the vehicle. When Cox moved to the passenger side, defendant and the other two boys came up behind the officer. Cox then decided it would be better to find out whether any of them had any weapons, and withdrew from the truck.

Cox first asked defendant to turn around and remove his hands from his pockets Cox then conducted a pat search. Defendant complied and stood with his hands in the air and his back to the officer. As Cox touched him on the right side, defendant grabbed for his jacket pockets and quickly turned around so that he was facing Cox. Cox then asked defendant to turn around again, put his hands on the truck, and assume the search position. Defendant did so, and Cox then felt a hard object, like a pocket knife, in defendant's right jacket pocket. Cox reached in and removed a harmonica.

Cox continued the pat search of defendant and in the left front jacket pocket felt some soft bulky material in a bag or piece of paper that made a noise and rattled as if it might be plastic. Cox removed a plastic bag containing green vegetable matter that was subsequently determined to be 26.3 grams of marijuana. Cox then found a package of zig-zag cigarette papers in defendant's left front pocket.

After arresting defendant for possession of marijuana, the officers picked up the box of matches and white matchbook that had been previously observed in the rear of the truck. This matchbox was empty, while the one observed earlier in the glove compartment contained six matches. Another toples matchbook was found in the rear of the truck, an additional one in the glove compartment and a third one in the passenger side of the vehicle. No contraband was found in the vehicle or on the other two passengers. The trial court denied defendant's motions to suppress the evidence (Pen.Code, § 1538.5) and to dismiss (Pen.Code, § 995) on the theory that the officer had reasonable probable cause to believe that defendant was in possession of marijuana.

Defendant concedes that the original stopping of the truck for the violation of the Vehicle Code was proper. However, relying on Terry v. Ohio, supra, and its companion case, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, he first argues that the 'frisk' was improper as Cox had no reasonable grounds for believing that he and his companions were armed or dangerous.

In Terry, the U.S. Supreme Court set forth the guidelines for determining the validity of a frisk and pat search, as distinct from a search incident to a lawful arrest. At page 20, 88 S.Ct. at p. 1879, the U.S. Supreme Court stated that the test is 'a dual one--whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'

The first of the test, 'whether the officer's action was justified at its inception,' was given the following explication: 'Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. (Citations.) And in determining whether the officer acted reasonably in such circumstances, due weight must be given, Not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.' (P. 27, 88 S.Ct. at p. 1883; emphasis added.)

The first question is whether, when measured by the standard of the 'reasonably prudent man' Cox's decision to interrupt his search of the interior of the truck and 'frisk' defendant and his companions after they had moved from their previous position at the rear of the truck to one directly behind him, was justified.

Defendant relies on Sibron v. New York, supra, a companion case to Terry v. Ohio, supra. In Sibron, an officer saw the defendant talking to a number of known narcotic addicts inside a restaurant on several occasions. However, no conversations were overheard and nothing was seen to pass between Sibron and the addicts. The addicts left and Sibron was eating when the officer approached him and asked him to step outside. Once outside, the officer said to Sibron: 'You know what I am after.' Sibron mumbled something and reached into his pocket. Simultaneously, the officer thrust his hand into the same pocket and found several envelopes containing heroin. The officer then sought to justify this search as being one for his own protection as he feared that Sibron was reaching for a weapon. The U.S. Supreme Court pointed...