People v. Hunt

• Decision Date: 21 April 1967
• Docket Number: Cr. 12569
• Citation: 250 Cal.App.2d 311,58 Cal.Rptr. 385
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Daniel HUNT, Defendant and Appellant.

Page 385

58 Cal.Rptr. 385

250 Cal.App.2d 311

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Daniel HUNT, Defendant and Appellant.

Cr. 12569.

Court of Appeal, Second District, Division 5, California.

April 21, 1967.

Charles M. Berg, Beverly Hills, under appointment by the District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for plaintiff and respondent.

HUFSTEDLER, Associate Justice.

Defendant Hunt appeals from a conviction of violating section 12021 of the Penal Code (former felon's possession of concealable weapon) upon an information charging him with that offense and setting forth his alleged prior felony convictions. Hunt pleaded not guilty, denied the prior felonies ¹ and waived jury trial. He was found guilty. His motion for a new trial was denied, and he was sentenced to the county jail for the time he had already served. The sole question presented upon appeal is the legality of the search and seizure without a warrant which produced the only evidence of possession subsequently introduced, over objection, at the time of trial.

Summary of the Evidence

On May 8, 1965, at 8:00 o'clock in the morning Deputy Sheriff Hipp, while sitting in his radio car, saw two men, Hunt and Porter, standing and talking with one another in the alley bordering a service station. The two men walked over to the service station attendant, Ebbanezer, then walked away from the attendant in opposite directions from each other. Hipp approached Ebbanezer and asked him if he knew the two men and what they were doing there. Ebbanezer replied that he did not know them, and 'I was just going to call the station because they had been hanging around acting suspicious.' This colloquy constitutes the entire conversation between Hipp and Ebbanezer. Ebbanezer did not testify at the trial. Thompson, another employee of the service station, arrived on the scene in time to see Hunt and Porter Parting from each other and walking away from the station. Thompson 'immediately * * * thought something was wrong. We had had previous robberies there.' Thompson called out to Hunt asking him to come back because he wanted to talk to him. Hunt kept on walking. Hipp radioed Officer Chausse, who was driving another patrol car, and told him 'to stop a male negro that was walking northbound in the alley towards 71st Street from Florence, that he was a suspicious person.' While Hipp stopped Porter, Chausse drove his radio car down the alley to stop Hunt. When Chausse saw Hunt in the alley, he ordered him to come to the car. Hunt ignored him and kept on walking. Chausse alighted from the car and again ordered Hunt to come to him. Hunt obeyed the second command. Chausse patted Hunt down for weapons and felt what appeared to be a pistol inside his waistband on the right side. Chausse seized from Hunt a two-inch, blue steel, Smith & Wesson .38 revolver. Six rounds of cartridges were in the gun at the time of the seizure. Chausse 'further shook him down' and found five more rounds of ammunition in Hunt's right front pocket. Chausse placed Hunt under arrest and drove him to meet Hipp.

Legality of the Search

Hunt contends that the search of his person was not incidental to a lawful arrest upon probable cause and that the evidence was obtained by an illegal search and seizure. The People respond that Hunt's temporary detention and frisking were justified under the doctrine of People v. Mickelson (1963) 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658, and that the fruits of the justifiable detention-and-frisk supplied probable cause for the arrest.

The California rule is 'that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning. If the circumstances warrant it, he may in self-protection request the suspect to alight from an automobile or to submit to a superficial search for concealed weapons. Should the investigation then reveal probable cause to make an arrest, the officer may arrest the suspect and conduct a reasonable incidental search.' People v. Mickelson, supra, 59 Cal.2d 448, 450--51, 30 Cal.Rptr. 18, 20, 380 P.2d 658, 660.

If the circumstances justified Hunt's temporary detention for questioning, the gun was not the product of an illegal search because it was discovered in the course of a superficial pat-down for weapons incident to the detention, and the discovery of the gun supplied probable cause for the arrest. Justification for the detention exists if, prior to the detention, Hipp had adequate cause to detain Hunt, if Chausse had such cause, or if the combined information of both Hipp and Chausse supplied adequate cause.

The direction by Hipp to Chausse to pick up Hunt was not, standing alone, justification for the detention. An order by one officer to another insulates the complying officer from assuming personal responsibility for the acts done in obedience to the order, but the order does not itself supply legal cause for the detention any more than the fact of detention supplies its own cause. We recognize that effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another, and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation of the transmitted...