Taylor v. Superior Court In and For San Bernardino County

• Decision Date: 25 July 1969
• Citation: 275 Cal.App.2d 146,79 Cal.Rptr. 677
• Court: California Court of Appeals Court of Appeals
• Parties: Larry Nelson TAYLOR, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SANBERNARDINO, Respondent; Lowell E. LATHROP, District Attorney of the County of San Bernardino, RealParty in Interest. Civ. 9668.

Page 677

79 Cal.Rptr. 677

275 Cal.App.2d 146

Larry Nelson TAYLOR, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SANBERNARDINO, Respondent Lowell E. LATHROP, District Attorney of the County of San Bernardino, RealParty in Interest.

Civ. 9668.

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

July 25, 1969.

[275 Cal.App.2d 147] Charles E. Ward, Public Defender, County of San Bernardino, by H. Raymond Rager, Deputy Public Defender, for petitioner.

Lowell E. Lathrop, Dist. Atty., County of San Bernardino, by Joseph D. Canty, Jr., Deputy Dist. Atty., for respondent and real party in interest.

OPINION

GARDNER, ^* Associate Justice pro tem.

This is a petition for writ of prohibition by defendant petitioner after an unfavorable ruling on a hearing under Penal Code, section 1538.5.

Officer Griggs of the San Bernardino Police Department was the only witness. His testimony can be summarized as follows:

On September 24, 1968, at 5:00 a.m., officers of the San Bernardino Police Department stopped petitioner's vehicle to cite him for a mechanical violation. Officers Gurnux and Robins made the original stop. Officer Griggs arrived as 'back up.' Officers Gurnux and Robins asked Officer Griggs to write out the citation which he did. At the same time Officer Robins was making a radio inquiry as to whether there were any warrants out for petitioner. For reasons not set forth in the record Officer Gurnux requested permission of petitioner to search his vehicle, to which request petitioner agreed. The search revealed nothing of interest. Officer Robins was then advised that there was an arrest warrant outstanding for petitioner for a traffic offense. Petitioner was placed under arrest by Officer Gurnux on the traffic warrant. Officer Gurnux then asked the petitioner to empty his pockets or to take out whatever he had in his pockets. He removed some money and a Zippo-type cigarette lighter. Officer Gurnux asked, 'May I see the cigarette lighter?' The petitioner said, 'Yes,' and handed it to him. Officer Gurnux snapped the top of the lighter open and placed the lighter on the hood of the police unit. The petitioner then placed the other articles from his pocket on the hood. Officer Griggs did not observe carefully but he testified Officer Gurnux 'searched his (petitioner's) person' and saw him 'run his hands over his arms and legs. * * *' Officer Griggs then took the cigarette lighter from the hood of the police unit, took it apart and in a recessed area found a useable quantity of hashish. No consent was obtained from petitioner to inspect the inside of the cigarette lighter.

Officer Griggs testified that the custom of having the arrestee empty his pockets was to enable the officers to thereafter conduct a pat-down search for weapons. If the articles taken from his pockets were such objects as money, cigarettes, matches, etc., they would be returned to the arrestee, but no metal objects would be so returned. This was because hard metal objects could be used as weapons. Officer Griggs testified that under no condition would they have returned the cigarette lighter to petitioner prior to booking him because '(I)t could be placed in the fist, like this, and used for a punch, or * * * if the person was in the back seat of a police unit he could set the back seat on fire. It could be used to burn the officer or to throw at the officer.'

The reason Officer Griggs took the cigarette lighter apart was because of his experience as a booking officer with the San Bernardino Sheriff's Department when on three or four occasions he had taken cigarette lighters apart and found Schick-type razor blades placed in the bottom of Zippo-type lighters or other types of razor blades secreted between the outside of the case and the inside portion of this type lighter.

Officer Griggs stated that the petitioner was in custody at the time the cigarette lighter was taken apart, that he intended to book him, that upon booking the petitioner all items in his pockets would be taken from him except cigarettes and matches, would be placed in an envelope and returned to him on his release from custody.

Three issues are presented: (1) was it a violation of the petitioner's constitutional rights for the officer to order him to empty his pockets prior to a pat down search; (2) was the original taking of the lighter a violation of the defendant's constitutional rights; and (3) was the subsequent search of the cigarette lighter a violation of these rights?

Since society, through the judicial process, orders police officers to arrest individuals and take them into custody under warrants of arrest, no one has ever seriously doubted the right of the police officers to search the person arrested for weapons and other things which might be used to harm the officer of effect an escape from custody. In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, this principle was reaffirmed in the following language: 'When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated.' (Chimel v. California, supra, p. 2040.) This right to search for weapons was enlarged to the temporary detention situation in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, where a 'stop and frisk' was sustained because it was no more than a 'protective * * * search for weapons.' Obviously the scope of the search must be reasonably limited by the need to search for weapons and may not be extended into an unrestrained and thorough-going examination of the arrestee and his personal effects. Thus, in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917, the acts of the policeman in...