Stern v. Superior Court

• Decision Date: 10 June 1971
• Citation: 18 Cal.App.3d 26,95 Cal.Rptr. 541
• Court: California Court of Appeals Court of Appeals
• Parties: Richard Leon STERN, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, The PEOPLE of the State of California, Real Party in Interest. Civ. 38126.

Page 541

95 Cal.Rptr. 541

18 Cal.App.3d 26

Richard Leon STERN, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, The PEOPLE of the State of California, Real Party in Interest.

Civ. 38126.

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

June 10, 1971.

Leonard P. Baum, Beverly Hills, for petitioner.

Joseph P. Busch, Jr., Dist. Atty. of Los Angeles County, Harry Wood, Head, Appellate Division, Los Angeles, Robert J. Lord, Deputy Dist. Atty., for real party in interest.

No appearance for respondent Court.

JEFFERSON, Associate Justice.

Petitioner seeks a writ of prohibition to bar criminal proceedings against him in the superior court of Los Angeles County.

By information, petitioner was charged with possession of marijuana for sale in violation of Health and Safety Code section 11530.5. Petitioner moved to dismiss the information under Penal Code section 995. The court denied the motion.

From the evidence received at the preliminary hearing the following facts appear:

On June 24, 1970, at approximately 10:45 p.m. Officer Charles Wilson and his partner, wearing sport clothes and driving in an unmarked vehicle, were on patrol duty in Sherman Oaks. When they were approximately 30 to 40 yards away they observed a parked vehicle adjacent to the roadway and Officer Wilson saw three males (one of whom was petitioner) standing near the rear of the parked car. As the officer approached the vehicle the young men started to leave. The officer stopped the police vehicle; he and his fellow officer alighted, and announced that they were police officers, and with guns in hand they walked up to the three persons, directed them to turn toward the parked car, and made a cursory search of their persons for weapons. The officer testified that in the pat down he did not feel any weapons. He testified that, as to one of these three (not the petitioner), he could 'observe * * * numerous half dollars, the silver variety, which aren't in circulation any more.' He said he also could see 'an extremely large amount of currency in his left front pants pocket which bulged considerably being folded once.'

Officer Wilson then left his partner to stand guard on the three individuals and went to the residence nearest the place where the vehicle was parked, which was in front of a vacant lot. He knocked on the door an, receiving no response, he jumped a six-foot fence and went to the back entrance. He observed what appeared to be a torn screen on one of the kitchen windows, but he found the window secure. He returned to the vehicle and advised the young men in custody, including the petitioner herein, that they were under arrest for burglary. Several minutes after the arrest, Officer Wilson advised them of their constitutional rights.

Officer Wilson testified that after the arrest he observed an aroma of marijuana and also noticed that the three arrestees exhibited bloodshot eyes. He inquired who was the owner of the vehicle and petitioner indicated that the car was owned by his parents. The officer asked petitioner if he could search the vehicle and petitioner said that he could. Officer Wilson took the keys from petitioner and searched the trunk of the vehicle. The officer found a bag of marijuana in the trunk compartment of the automobile. Petitioner and his two companions were then transported to the Van Nuys station and booked for violation of the Health and Safety Code, section 11530.5. The burglary charge was dropped.

There was no probable cause to arrest petitioner for any offense. 'Although circumstances short of probable cause to make an arrest may still justify an officer in stopping a pedestrian on the streets for questioning, a police officer may not detain and question a person when there are no circumstances which would...