People v. Lingo
Decision Date | 20 January 1970 |
Docket Number | Cr. 16728 |
Citation | 83 Cal.Rptr. 755,3 Cal.App.3d 661 |
Parties | The PEOPLE, Plaintiff and Appellant, v. Robert Steven LINGO, Defendant and Respondent. |
Court | California Court of Appeals Court of Appeals |
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Los Angeles County, Harry Wood, Head, Appellate Div., and Robert J. Lord, Deputy Dist. Atty., for plaintiff and appellant.
Richard S. Buckley, Public Defender, Los Angeles County, Harold E. Shabo and James L. McCormick, Deputy Public Defenders, for defendant and respondent.
This is an appeal by the People, pursuant to subdivision 7 of section 1238 of the Penal Code, 1 from an order of the Superior Court made under subdivision (l) of section 1538.5 and section 1385, dismissing a criminal prosecution after the court had granted a motion by defendant, made under section 1538.5, to suppress certain evidence.
It was conceded in the trial court that, if the motion to suppress was properly granted, the People had insufficient evidence to sustain a conviction.
Defendant argues that the People may not, on this appeal from an order of dismissal, secure a review of the suppression order, the argument being that the sole remedy for review of a suppression order is a petition for a writ of prohibition or mandate pursuant to subdivision (o) of section 1538.5. In making that contention, defendant relies on the decision in People v. Sheahan (1969) 274 A.C.A. 441, 79 Cal.Rptr. 299, 79 Cal.Rptr. 299. But a rehearing has been granted in Sheahan, and its theory was expressly rejected in People v. Foster (1969) 274 Cal.App.2d ---, 79 Cal.Rptr. 397. A We agree with the result of the Foster case.
Defendant was a passenger in an automobile driven by Larry Morley. Police officers stopped the car for an equipment violation (no rear license plate). Both the driver and defendant alighted from the car. 2 The officers made a pat down search for weapons, which disclosed nothing. The driver had an expired driver's license; defendant, questioned about ownership, produced a registration from Colorado in another person's name and stated that he was the owner and in the process of securing a transfer of the title documents. One officer saw a phonograph and a portable radio in the car. Suspecting a possible criminal origin of these objects, one officer asked defendant if there were any narcotics in the car; defendant said: 'No.' The officer then said: 'You don't mind if we search?' Defendant replied: 'Go ahead and search.' A search disclosed a box containing marijuana.
It is the defense contention, adopted by the trial court, that the apparent consent was vitiated because it followed a detention and interrogation made without justification. We agree.
The equipment violation authorized the officers to stop the car and to detain it and its occupants for such period of time as was necessary to issue a citation for that violation and for the properly discovered additional offense of driving with an expired license. The statute (Veh. Code, § 2800 et seq.) authorized them, having legitimately stopped the vehicle for the equipment violation, to continue that detention while they satisfied themselves as to its registration. On this record, it seems probable that a still further detention for the purpose of inquiry as to the right to possess the radio and phonograph would have been lawful.
But the officers had completed their activity with reference to the equipment, the license, and the registration. They made no effort at all to pursue their suspicions that the radio and phonograph might have been stolen. Instead, they continued to detain defendant, his companion and his vehicle, for an entirely different purpose--namely to make inquiry about an offense which, admittedly, they had no grounds to suspect had been or was being committed. It was admitted that these officers 'routinely' questioned all persons detained for any reason if they had narcotics. The officers had no reason, when the question was asked, to suspect any narcotic violation by either man--neither appeared to be under the influence of anything,...
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