People v. Wickers

• Decision Date: 14 March 1972
• Docket Number: Cr. 20901
• Citation: 24 Cal.App.3d 12,100 Cal.Rptr. 732
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Earl Lee WICKERS, Defendant and Respondent.

Page 732

100 Cal.Rptr. 732

24 Cal.App.3d 12

The PEOPLE of the State of California, Plaintiff and Appellant, v. Earl Lee WICKERS, Defendant and Respondent.

Cr. 20901.

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

March 14, 1972.

Hearing Denied May 10, 1972.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Joseph P. Busch, Jr., Dist. Atty., Los Angeles County, Harry Wood, Head, Appellate Div., Daniel L. Lieberman, Deputy Dist. Atty., for plaintiff-appellant.

Richard S. Buckley, Public Defender of Los Angeles County, James L. McCormick, Dale C. Frailey, Edward Van Gelder, Deputy Public Defenders, for defendant-respondent.

ROTH, Presiding Justice.

People appeal from an order dismissing an information charging the unlawful possession of marijuana in one count. (Health and Safety Code, section 11530.)

Respondent has adopted the People's statement of facts. We set forth that statement substantially verbatim, except as modified by the court.

Douglas W. Foland, a police officer in the City of Pomona, was on May 28, 1971, assigned to the Patrol Division. At about 12:57 a.m. Foland who was in a police vehicle with his partner Hernandez, observed a vehicle parked on the Gulf Station lot located in the vicinity of the southwest corner of Gary Avenue and Artesia Street in the City of Pomona. There had been numerous armed robberies in the surrounding area in which male Negro suspects were involved, In the week preceding. Foland had, during, a briefing from Sergeant Pfaff, learned that one or two days earlier the Claremont Police Department had a robbery involving a male Negro described as being in his early twenties, five feet, seven inches tall, weighing 150 pounds, having black hair, a mustache and muttonchop sideburns. The weapon used in the course of this robbery the officer believed to be a machete. Also within the preceding seven days, there had been a robbery in the area of Upland or Cucamonga involving a male Negro who had used a stocking to cover his face.

The Gulf Station was open for business and its lot was surrounded by suspended lights and visibility conditions were almost as good as those during daylight hours. The officer observed respondent seated behind the steering wheel of the parked vehicle, a 1968 Riviera, black or grey. There was one other person in the car. After observing respondent Foland contacted the attendant of the service station to discover how long the occupants of the vehicle had been at the location and whether they had asked the attendant for service. The attendant indicated that the vehicle had been there for some time, that he did not know the reason for the presence of the vehicle or its occupants, and that the occupants had not contacted him.

In view of the numerous armed robberies the surrounding area within the preceding week involving male Negro suspects, the officer then contacted the occupants of the vehicle. Foland asked respondent Wickers for his driver's license and why he was at the location, explaining that he was concerned about the situation and wondered why Wickers was parked. Wickers indicated that he was awaiting the arrival of a relative of his passenger who would show him the way to his home. At this time Foland took Wickers' license and a partially filled-out field interrogation card from his partner, Officer Hernandez, told Wickers to remain on the scene, and began to check for possible warrants. While he was in his police vehicle in front of Wickers' car, the passenger exited Wickers' car and was speaking with Hernandez. At this time a new model maroon Riviera pulled onto the lot. The passenger entered this vehicle and he and the driver of the vehicle left the location, driving across the lot without lights at a high rate of speed, proceeding westbound on Artesia, still without lights. Up to this point, approximately five minutes had elapsed from Foland's first contact with Wickers.

Foland left the police car taking a handy-talkie radio and his partner, Hernandez, left the location in pursuit of the maroon Riviera. Foland contacted respondent Wickers again and asked him to step away from the police unit which Wickers did. The officers had Wickers come to the passenger side of Wickers' vehicle. Because of the sudden actions of the passenger in leaving the location, the officer had Wickers place his hands on the vehicle and proceeded to look into the vehicle in an attempt to discover the reason for the passenger's rapid departure. The officer, who was unsure of what crime might have been committed or whether he had in fact interrupted a possible armed robbery or someone waiting to commit a robbery, was looking around the vehicle primarily for a weapon. Foland did not frisk or pat down Wickers, apparently because Wickers was clad in tight fitting pants and shirt which would have revealed a weapon, had Wickers been carrying it on his person. The lighting conditions were excellent and the officer looked through the windshield of the vehicle in an attempt to look under the front seat as much as possible and then looked through the side window...