Willy L., In re

• Decision Date: 27 February 1976
• Citation: Willy L., In re, 128 Cal.Rptr. 592, 56 Cal.App.3d 256 (Cal. App. 1976)
• Court: California Court of Appeals
• Parties: In re WILLY L., a Person Coming Under the Juvenile Court Law. Dale GRAVER, Chief Probation Officer, Plaintiff and Respondent, v. WILLY L., Defendant and Appellant. Civ. 2650.

Page 592

128 Cal.Rptr. 592

56 Cal.App.3d 256

In re WILLY L., a Person Coming Under the Juvenile Court LawDale GRAVER, Chief Probation Officer, Plaintiff and Respondent, v.WILLY L., Defendant and Appellant.

Civ. 2650.

Court of Appeal, Fifth District, California.

Feb. 27, 1976.

John M. Hanley, Sunnyvale, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger.Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Joel E. Carey, Deputy Attys.Gen., Sacramento, for plaintiff and respondent.

OPINION

THOMPSON, ^* Associate Justice(Assigned).

At the jurisdictional hearing, appellant admitted the Vehicle Code violations and the burglary, but denied the allegations of possession of marijuana and codeine contending that the drugs had been seized by means of an illegal search and seizure.The court overruled appellant's objections to the admissibility of the drugs and found the allegations of the drug violations to be true.Appellant was found to be a person described in section 602 of the Welfare and Institutions Code.

At the dispositional hearing the court considered a social study prepared by the juvenile court probation officer wherein it was recommended that appellant be removed from the custody of his parents and committed to a forestry camp in Stanislaus County and upon successful completion of the camp program to be released to the custody of his parents under specified terms of probation.Appellant's counsel recommended a local jail sentence.The juvenile court declined to follow either recommendation and ordered appellant committed to the Youth Authority.

FACTS

At about 1:40 p.m. on November 25, 1974, Jack Smith, a Modesto police officer on duty in his patrol car in Modesto, noticed a 1967 black Cadillac convertible proceeding at a speed which appeared to be five or ten miles over the 25 mile-per-hour speed limit.While following the Cadillac, Officer Smith noticed that neither the brake lights nor the turn signal of the Cadillac appeared to be working and he stopped the vehicle for that reason.Officer Smith asked the driver of the vehicle, appellant, for identification, but appellant was unable to produce either a driver's license or any other type of written identification.Therefore, Officer Smith placed appellant, whom he had discovered to be only 17 years old, under arrest for failure to have a driver's license in his possession and for being unable to identify himself with proper identification.

Officer Smith, who had noticed a 'light odor of marijuana' emanating from the vehicle while questioning and arresting appellant, patted appellant down for weapons or contraband before placing him in the patrol car.During this patdown, he felt 'two bulky objects' in the front portion of each of the boots which appellant was wearing.Thinking these could be some sort of weapon, the officer reached into the boots and removed two plastic baggies of what appeared to be marijuana from each boot.He then re-arrested appellant and made a further search of appellant's person for weapons or further contraband.He discovered a fifth plastic baggie, which also appeared to contain marijuana, in appellant's front pants pocket.

Appellant was handcuffed and placed in the rear seat of the patrol car.Officer Smith opened the front door of appellant's Cadillac, whereupon he noticed an 'extremely strong' odor of fresh marijuana.He also saw what appeared to be burnt and unburnt marijuana seeds on the front seat, floorboard, and back seat of the vehicle.

Because of the manner in which the convertible was constructed, Officer Smith could tell that the odor was emanating from the trunk of the Cadillac.He was able to partially view the trunk compartment through the 'well' into which the convertible top retracted from the back seat of the vehicle; however he could not observe any of the contents in the trunk because he did not have his flashlight with him.Officer Smith opened the trunk with the key from the ignition; he found a set of scales, and a bag containing a 'brick' of what appeared to be marijuana, packaged in a form for sale.Also, pushed down in the crack of the rear seat, the police discovered some wrapped tablets and white powder subsequently identified as codeine.

The 'brick' and the contents of the five baggies found on appellant's person, were determined to be marijuana.

LEGALITY OF THE SEARCH

Appellant contends that the patdown search of his person and the subsequent search of his vehicle were illegal and that the contraband seized as a result of the search should have been suppressed.

When the driver of an automobile fails to present his driver's license or other satisfactory evidence of his identity for examination by an officer, the law requires that he be arrested and taken without unnecessay delay before a magistrate.(Veh.Code, § 40302, subd. (a).)When it becomes necessary for an officer to confine a traffic law violator within his police vehicle the officer is entitled to conduct a patdown search for weapons.(People v. Brisendine(1975)13 Cal.3d 528, 537--538, 119 Cal.Rptr. 315, 531 P.2d 1099, see alsoPeople v. Superior Court(Simon)(1972)8 Cal.3d 186, 214.)In such a situation the increased danger to the officer warrants the patdown, and there is no need to independently establish a factual basis that the arrestee is armed prior to the patdown.

The sole justification for such a search, however, is 'the protection of the police officer . . ., and it must therefore be confined in scope to an intrustion reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of the police officer.'(Terry v. Ohio(1968)392 U.S. 1, 29--30, 88 S.Ct. 1868, 1883--1885, 20 L.Ed.2d 889;People v. Brisendine, supra, 13 Cal.2d at p. 542, 119 Cal.Rptr. 315, 531 P.2d 1099.)To lawfully exceed the scope of a patdown the officer must be able to point to specific and articulable facts reasonably supporting his suspicion that the suspect is armed.(People v. Collins(1970)1 Cal.3d 658, 662, 83 Cal.Rptr. 179, 463 P.2d 403;People v. Brisendine, supra, 13 Cal.2d at p. 542, 119 Cal.Rptr. 315, 531 P.2d 1099.)For example, in People v. Mosher(1969), 1 Cal.3d 379, 82 Cal.Rptr. 379, 461 P.2d 659, the patdown of a burglary suspect revealed a 'sharp object like a knife blade.'On further investigation the object was found to be a watch band belonging to a murder victim.In upholding the search, the Supreme Court carefully distinguished the feel of a 'knife blade' from a 'box of matches, a plastic pouch, a pack of cigarettes, a wrapped sandwich, a container of pills, a wallet, coins, folded papers, and many other small items . . . (which) do not ordinarily feel like weapons.'(1 Cal.3d at p. 394, 82 Cal.Rptr. at p. 388, 461 P.2d at p. 668.)

Brisendine, supra, however makes the following observation:

'In the ordinary pat-down circumstances the clothing of the person is seldom, if ever, so resistant or resilient as to prevent the police from determining whether there are weapons present.But if in some unique fact pattern such were the case, we would likely be persuaded that a limited further intrusion was necessary.To do otherwise would be to make the unreasonable demand that an officer allow a potentially armed suspect to enter his patrol car.We noted above that even in the ordinarily innocuous confrontation between an officer and a traffic arrestee who is to be transported before a magistrate, there is the possibility of violence.'(13 Cal.3d at pp. 542--543, 119 Cal.Rptr. at p. 324, 531 P.2d at p. 1108.)

The record shows that when conducting the patdown Officer Smith felt two 'bulky' objects near the ankle area in each of appellant's zip-up boots.No testimony was given as to the weight or consistency of the objects while they were in appellant's boots.Although the individual baggies are not heavy or hard, the inference from the testimony is that they were placed one on top of the other inside the boot thereby giving the impression of a larger object.We judicially note that boots are less resilient than other items of clothing.The only logical reason a person would place items in boots is for concealment; it is not unusual for weapons to be concealed there.Considering all of these circumstances, we conclude that Officer Smith showed specific and articulable facts reasonably supporting his suspicion that appellant might be armed.The seizure of the marijuana in appellant's boots was lawful.

After finding the marijuana in appellant's boots, Officer Smith testified that when he opened the door of appellant's car he noticed an 'extremely strong' odor of fresh marijuana in the vehicle which he could tell was emanating from the trunk because of the opening in the well between the trunk and passenger section of the car.The odor of marijuana in a vehicle is sufficient to give probable cause to search the vehicle for contraband.(People v. Cook$(1975)13 Cal.3d 663, 668--669, 119 Cal.Rptr. 500, 532 P.2d 148;People v. Gale(1973)9 Cal.3d 788, 794, 108 Cal.Rptr. 852, 511 P.2d 1204;People v. Fitzpatrick(1970)3 Cal.App.3d 824, 825--826, 84 Cal.Rptr. 78.)

People v. Gregg(1974), 43 Cal.App.3d 137, 117 Cal.Rptr. 496, relied on by appellant, is distinguishable.In Gregg, the arresting officer had no reasons to suspect the contraband was located in the trunk compartment other than the discovery of a few marijuana seeds in the interior of the car and the odor inside the car of recently burned marijuana.Here, because of the strong odor of fresh marijuana coming from the trunk Officer Smith had probable cause to believe that fresh marijuana was in the trunk.The search of appellant's car and its trunk was lawful, and the contraband discovered pursuant to that search was properly admitted into evidence.

VALIDITY OF COMMITMENT TO YOUTH AUTHORITY

Willy L. contends that the juvenile court...