People v. Kraps, Cr. 4983

• Court: California Court of Appeals
• Writing for the Court: MOLINARI; SULLIVAN, P. J., and SIMS
• Citation: 238 Cal.App.2d 675,48 Cal.Rptr. 89
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Francis Frederick KRAPS, Jr., Defendant and Appellant.
• Docket Number: Cr. 4983
• Decision Date: 10 December 1965

Page 89

48 Cal.Rptr. 89 238 Cal.App.2d 675 PEOPLE of the State of California, Plaintiff and Respondent,
v.
Francis Frederick KRAPS, Jr., Defendant and Appellant. Cr. 4983. District Court of Appeal, First District, Division 1, California. Dec. 10, 1965.
Hearing Denied Feb. 2, 1966.

Page 90

[238 Cal.App.2d 676] James W. Stewart, c/o Collins, Hays & Stewart, Ralph J. Steinberg, c/o Berns & Steinberg, San Jose, for appellant.

Thomas C. Lynch, Atty. Gen. of State of California, Edward P. O'Brien, Charles W. Rumph, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

On this appeal by defendant from an order granting him probation after he was convicted for violating Health and Safety Code section 11530 (possession of marijuana), ¹ the sole contention is that defendant was subjected to an illegal search and seizure by the police officer who arrested him and that therefore the marijuana which the search produced should have been excluded from evidence. The trial court ruled against defendant on this issue based on the testimony contained in the transcript of the preliminary[238 Cal.App.2d 677] hearing, defendant, personally and by his counsel, having waived a jury trial and stipulated that the entire cause be submitted on this transcript. We hold that the concatenation of events surrounding the arrest justified the search and seizure.

The essential facts adduced at the preliminary hearing wherein Officer Hall of the San Bruno Police Department was the sole witness are as follows: On September 7, 1964 at 3:10 a. m., he and his partner, Officer Robert Frommer, were on a routine patrol in San Bruno in their patrol car. Near the intersection of San Bruno and San Mateo Avenues, Hall observed defendant and another man, Mr. Davitt, standing on the sidewalk in front of a used car lot. As the officers approached, defendant and Davitt started walking east on San Bruno Avenue. Hall stopped his patrol car, turned on his red light, and called out to the two men that he would like to talk to them for a minute. Both men came over to the patrol car and in response to Hall's questioning

Page 91

and request for identification they gave the officers their reason for being in that neighborhood and furnished the officers with their drivers' licenses. Hall then called his headquarters for a routine check on defendant and Davitt and was advised that a traffic warrant was outstanding against defendant. Hall then informed defendant that he was under arrest upon the traffic warrant and ordered defendant and Davitt to lean against the police car while the officers conducted a 'feel search.' In addition Hall told defendant to empty out his pockets onto the fender of the car. Defendant complied with this request and, among other things, produced some cigarette papers from his pants' pocket. In response to Hall's questions about the cigarette papers, defendant indicated that he used them for rolling tobacco. Hall then patted defendant's coat again, felt a bulge in his jacket pocket and asked defendant what was in the pocket. Defendant replied that 'he just had a little container containing film.' Hall then removed the film can from defendant's pocket and concluded after shaking it that it contained seeds or greens. Over defendant's protestations, Hall opened the can and discovered that it contained vegetation resembling marijuana. Defendant then admitted that the substance was in fact marijuana. In addition, at the preliminary hearing it was stipulated that the contents of the film container was marijuana seed. Both the cigarette papers and the film container with its contents were introduced into evidence at the preliminary[238 Cal.App.2d 678] hearing over defendant's objection and motion to suppress. ²

It is conceded that Hall was initially entitled to stop defendant and detain him for questioning. ³ This concession recognizes the established rule in this state that circumstances short of probable cause to make an arrest justify an officer's stopping pedestrians or motorists on the street for questioning. (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658.) It should be noted that this rule has been interpreted by some courts as giving the police an absolute right to stop and question persons who are outdoors at night. (See People v. Wiley, 162 Cal.App.2d 836, 839, 328 P.2d 823; People v. Stewart, 189 Cal.App.2d 176, 178, 10 Cal.Rptr. 879; see also People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531.) In other cases the invocation of this rule has been conditioned upon the existence of suspicious or unusual circumstances, irrespective of whether the temporary detention is in the daytime or nighttime. In these cases the Mickelson rule has been interpreted to mean that in order for a police officer to detain a person temporarily for questioning under conditions not amounting to probable cause for arrest there must exist some suspicious or unusual circumstance authorizing this limited invasion of a citizen's privacy. (Hood v. Superior Court, 220 Cal.App.2d 242, 245, 33 Cal.Rptr. 782; People v. Cowman, 223 Cal.App.2d 109, 116, 35 Cal.Rptr. 528; see People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 95-96, 41 Cal.Rptr. 290, 396 P.2d 706; and see People v. Martin, 46 Cal.2d 106, 293 P.2d 52; People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57; People v. Beverly, 200 Cal.App.2d 119, 19 Cal.Rptr. 67; People v. Anushevitz, ...