People v. Hubbard

• Decision Date: 22 July 1970
• Docket Number: Cr. 17355
• Citation: 9 Cal.App.3d 827,88 Cal.Rptr. 411
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Larry James HUBBARD, Defendant and Appellant.

Page 411

88 Cal.Rptr. 411

9 Cal.App.3d 827

The PEOPLE, Plaintiff and Respondent, v. Larry James HUBBARD, Defendant and Appellant.

Cr. 17355.

Court of Appeal, Second District, Division 4, California.

July 22, 1970.

Hearing Denied Sept. 24, 1970.

Richard S. Buckley, Public Defender, William V. Larsen, James L. McCormick and John D. McGuire, Deputy Public Defenders, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and William R. Pounders, Deputy Atty. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

After a court trial defendant was convicted of possession of a dangerous drug, secobarbitual sodium, aso known as seconal, in violation of Health and Safety Code section 11910. The court suspended proceedings and granted probation. Defendant is appealing from this order which is deemed, for the purpose of appeal, a judgment.

The issues on appeal relate exclusively to the manner in which the arresting officers found the contraband in defendant's possession. Prior to trial there was a motion under Penal Code section 1538.5 to suppress the evidence upon the ground it had been illegally seized. That motion was denied. The facts upon which defendant's contentions rest may be stated briefly.

At 9:30 p.m. on December 5, 1968, Police Officers Weber and Lurz, in uniform, on patrol in a marked vehicle, saw a vehicle driven by defendant fail to stop for a traffic light at the intersection of Adams and La Brea, in Los Angeles. The officers followed defendant, who immediately turned into a gas station and stopped. At that time the officers' intention was to do no more than issue a citation for a traffic violation. As the vehicles stopped, defendant and two passengers simultaneously stepped from defendant's vehicle. Defendant advanced towards the officers. Officer Weber asked them to step over to one side and Officer Lurz 'patted down' each of them for weapons. In patting defendant, Officer Lurz thought he felt capsules in defendant's pants pocket and told Weber. Weber could see a plastic bag protruding from the pocket. Weber then asked defendant if he had any pills in his pocket. Defendant responded, "They're reds. They belong to my mother." Weber then asked defendant to take the pills out. Defendant thereupon handed Weber the clear plastic bag, which contained 17 red capsules having the familiar appearance of seconal. Subsequent chemical analysis confirmed the nature of the contents.

At the hearing on the motion to suppress the evidence defendant moved to strike the testimony of Officer Weber that defendant had said, "They're reds. They belong to my mother." The motion was made upon the ground that defendant had not been advised of his right to silence and to counsel in conformity with Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The motion was at that time denied.

I.

Defendant's first contention here is that the record fails to show any justification for patting his outer clothes. The legal standard is stated in Terry v. Ohio (1968) 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909:

'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.'

In describing the showing which must be made, the court said, 392 U.S. at page 21, 88 S.Ct. at page 1880, 20 L.Ed.2d at p. 906:

'And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. (Fn. omitted.)'

When counsel asked Officer Lurz why he felt it necessary to pat down defendant, he responded: 'Pat down everyone, sir, that I talk to, for safety reasons, safety of myself and my partner.'

That undiscriminating approach does not meet the Supreme Court's test. (See People v. Adam (1969) 1 Cal.App.3d 486, 489, 81 Cal.Rptr. 738.)

But Officer Weber, who directed the operation, was more articulate. When asked if he had a particular reason for making a pat down, he said:

'Yes. Like I said, all three suspects alighted from the vehicle almost simultaneously * * * They all got out on us, and I felt, for the protection of my partner and myself, we better search them down * * * They just alighted and stood there, and defendant Hubbard started to walk back towards me, and the other two just more or less stood there on the other side of the car.'

Added to this are the facts that the scene was out of doors, at night, and defendant's vehicle was being stopped only for a minor traffic violation, an occasion which did not require and normally would not result in the activity which the officer observed. Under the circumstances the occupants' sudden debouchment from the vehicle was interpreted as a threat to the safety of the officers. We cannot say that the trial judge, who saw the persons involved, was unreasonable in deciding that the officers, who faced the situation, acted reasonably in deciding to check for weapons first.

II.

Deciding the legality of the pat down is only the first step in determining whether the officers could lawfully seize the bag of capsules which was in defendant's pocket. The People do not contend that Officer Lurz had probable cause to arrest when, in touching the outside of defendant's clothing, he felt the capsules. ¹ Rather the People argue (a) that defendant produced the bag of seconal voluntarily, and (b) under Miranda v. Arizona, Supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, defendant's statement, "They're reds," should not have been stricken and, with that statement in the record, there was adequate ground to arrest him and search him.

The contention that defendant produced the bag voluntarily requires no discussion. Defendant removed the bag from his pocket under the compulsion of a direct command by a police officer who was holding him under arrest.

The People's alternative theory depends upon the applicability of the Miranda rule to the facts of this case. It hardly can be doubted that after defendant said, "They're reds," the officers had ground to arrest him for violation of section 11910, Health and Safety Code. It was understood by all concerned that the word 'reds,' as used by defendant, meant capsules of seconal. The usage is so common an appellate court may take notice of it.

The admissibility of the capsules was determined in a special pretrial hearing conducted under Penal Code section 1538.5. In that hearing the defendant moved to strike the statement on the ground that he had not been advised of his Miranda rights. That motion was denied. At the trial, when the officer gave the same testimony, the same motion was made and granted. The record contains no explanation for the inconsistent rulings.

The defendant having had the opportunity in a special hearing to litigate the issue of the admissibility of the capsules, no further contest of that issue was necessary at the trial, I.e., there was no objection to that evidence or motion to strike it at the trial. On this appeal from the judgment defendant is entitled to a review of the issue based upon the record made at the special hearing. (See Pen.Code, § 1538.5, subds. (h), (m).)

That record includes the officer's testimony that defendant said, "They're reds," and we must assume in favor of the judgment that the trial court found that testimony credible.

The crucial question here is whether defendant's statement was admissible and may stand as a part of the legal ground for arrest or whether, as defendant contends, the statement was inadmissible and should be disregarded.

The Miranda opinion contains this epitome of its holding:

'(T)he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. ⁴ ' (384 U.S. 436,

444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706.)

It is conceded that defendant was given none of the 'safeguard' warnings before Officer Weber elicited the incriminating answer, "They're reds." Admissibility depends on whether defendant, at that time, was a person 'taken into custody or otherwise deprived of his freedom of action in any significant way.'

In two subsequent decisions the Supreme Court has rejected attempts to place categorical limitations upon the meaning of 'custody.' In Mathis v. United States (1968) 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381, where a federal revenue agent had questioned a prisoner serving a state sentence in a state institution, the court held the Miranda safeguards were required even though the questioning was entirely unrelated to the reason for which the prisoner was being held. And in Orozco v. Texas (1969) 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 the court held that the Miranda rules must not be limited to station-house interrogation, but must be applied...