People v. Smith, Cr. 18736

• Decision Date: 18 May 1971
• Docket Number: Cr. 18736
• Citation: 95 Cal.Rptr. 229,17 Cal.App.3d 604
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Delbert Gene SMITH, Defendant and Respondent.

Page 229

95 Cal.Rptr. 229

17 Cal.App.3d 604

The PEOPLE, Plaintiff and Appellant, v. Delbert Gene SMITH, Defendant and Respondent.

Cr. 18736.

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

May 18, 1971.

Rehearing Denied June 3, 1971.

Hearing Denied Sept. 2, 1971.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, and Eugene D. Tavris, Deputy Dist. Atty., for plaintiff and appellant.

Richard S. Buckley, Public Defender of Los Angeles County, James L. McCormick, David LaFaille and Arthur L. Rolston, Deputy Public Defenders, for defendant and respondent.

KINGSLEY, Associate Justice.

The People appeal, pursuant to subdivision (7) of section 1238 of the Penal Code, from an order dismissing a prosecution after an order, pursuant to section 1538.5 of that code, suppressing certain evidence. ¹ We affirm the order.

Police officers, on routine patrol, in the early morning hours, observed defendant and a man named Brown engaged in a fight. They intervened and, concluding that defendant was intoxicated, they arrested him for a violation of subdivision (f) of section 647 of the Penal Code. He was handcuffed and placed in the patrol car. Allegedly because a person (thought to be defendant's father) told the officers that 'there was a gun,' a pat-down search was made. One officer felt, in defendant's pants pocket, what he thought was a clip of ammunition; it was removed and turned out to be marijuana. Defendant was then formally arrested for possession of marijuana, in violation of section 11530 of the Health and Safety Code. The present case grows out of his prosecution on that later charge.

In view of the holding we make in this case we need not discuss a large number of points briefed and argued before us. We assume, for the purpose of our decision: (1) that defendant was lawfully arrested for the misdemeanor violation of subdivision (f) of section 647; and (2) that the officer had reasonable grounds to believe that defendant might be armed. In addition, we have the trial court's statement that it believed 'the testimony' of the police officer who testified before him.

However, there is nothing in the record to indicate that the trial court determined that the officer's admitted belief that he had felt a clip of ammunition was a reasonable belief, or that the trial court found, as a fact, that defendant would actually have been booked at a police station if the marijuana had not been found.

On the facts as known to the officers when defendant was first accosted by them, no right existed to arrest for any offense more serious than the section 647 misdemeanor; and no one claimed in the trial court or here that there was. Any right to conduct a pat-down search for the supposed weapon ended when the pat-down failed to disclose such a weapon. As we have pointed out above, the trial court was not required to find that the officer had a reasonable belief as to what he felt, nor was the trial court required to find that, as a matter of law, an ammunition clip is a weapon dangerous to the officer's safety. (People v. Mosher (1969) 1 Cal.3d 379, 394, 82 Cal.Rptr. 379, 461 P.2d 659.)

In the trial court, the People sought to sustain the search on the theory that it was nonprejudicial because defendant would have been searched at the time of booking in any event. They do not rely on that theory in this court, and for good reason. While the trial court did indicate a belief that defendant--handcuffed and in the police car--probably would have been...