People v. Roach, Cr. 18509

• Decision Date: 25 February 1971
• Docket Number: Cr. 18509
• Citation: 15 Cal.App.3d 628,93 Cal.Rptr. 354
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Eugene ROACH, Defendant and Appellant.

Page 354

93 Cal.Rptr. 354

15 Cal.App.3d 628

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Eugene ROACH, Defendant and Appellant.

Cr. 18509.

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

Feb. 25, 1971.

As Modified March 11, 1971.

Albert D. Silverman, Canoga Park, under appointment by the Court of Appeal, for defendant-appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Robert F. Katz, Deputy Atty. Gen., for plaintiff-respondent.

COMPTON, Associate Justice.

Defendant was charged by information in two counts with violation of section 11530 of the Health and Safety Code (possession of marijuana) and with violation of section 11555 of the Health and Safety Code (possession of an instrument used for the unlawful smoking of a narcotic). Defendant's motion to suppress the evidence (Pen.Code, § 1538.5) was denied. Thereafter defendant pleaded guilty to the violation of section 11530 upon the condition that any sentence imposed by the court be shorter than one year in the county jail. Defendant's second count was dismissed. Defendant was placed on probation for three years, after receiving a suspended one year sentence to the county jail. Defendant appeals pursuant to section 1538.5(m) of the Penal Code from the court's probation order which is deemed, for the purpose of appeal, a judgment.

On January 14, 1970, at approximately 9:00 p.m. Officer Dickey of the Santa Barbara Sheriff's office and four other officers arrested several persons in an apartment in Santa Maria, California, on dangerous drugs and narcotics charges. During the course of the arrest the officers uncovered a substantial amount of lycergic acid (LSD) and marijuana, plus assorted paraphernalia for the use of said narcotics. Approximately fifteen or twenty minutes after the subject arrest had commenced and while some of Officer Dickey's fellow officers were in another part of the apartment, defendant knocked at the front door. Officer Dickey answered the door and the defendant 'came into the room, the hallway.' Officer Dickey identified himself, advised defendant that there was an arrest being made, and asked defendant for identification. Officer Dickey testified that when defendant started to reach for his pocket, he patted defendant down as a precautionary measure.

While conducting his 'pat-down' search of defendant, Officer Dickey felt a 'large, hard object' in the pocket of defendant's jacket. Officer Dickey removed the object which proved to be a brass doorknob with an alligator clip fastened thereto. It was determined that said object was a 'crutch' which is a device used by persons smoking marijuana to hold the burnt portion of the marijuana cigarette so as to imbibe an optimum amount from the marijuana 'roach.' Officer Dickey thereupon placed defendant under arrest for violation of section 11555 of the Health and Safety Code. Thereafter defendant's pockets were thoroughly searched and were found to contain a plastic bag containing marijuana. Defendant was then advised that he was being arrested for possession of marijuana.

Defendant's appeal presents two basic issues. First, was Officer Dickey's pat-down search violative of defendant's Fourth Amendment rights to freedom from unreasonable searches and seizures. Second, was there probable cause to arrest defendant and thereafter search his pockets.

The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, recognized the right of a policeman given certain conditions to make self-protective 'frisk' searches of persons for weapons. The Supreme Court said: '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. (Citation.)' (Terry v. Ohio, Supra, at 27, 88 S.Ct. at 1883.)

The court declared that the determination as to whether an officer's pat-down search is reasonable represents a dual inquiry- --'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.' (Terry v. Ohio, Supra, at 20, 88 S.Ct. at 1879.) Thus 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.' (Terry v. Ohio, Supra, at 21, 88 S.Ct. at 1880.)

Our Supreme Court has said that in determining whether a 'stop and frisk' is lawful '(t)here must be a 'rational' suspicion by the peace officer that some activity out of the ordinary is or has taken place * * * some indication to connect the person under suspicion with the unusual activity * * * (and) some suggestion that the activity is related to crime. (Citation.)' (Irwin v. Superior Court, 1 Cal.3d 423, 427, 82...