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Court of Appeal, Second District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. William COLLINS, Jr., Defendant and Respondent.

Cr. 16212.

Decided: August 21, 1969

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., County of Los Angeles, Harry Wood, Head, Appellate Division, and Joel Paul Hoffman, Deputy Dist. Atty., for appellant. Richard S. Buckley, Public Defender, Loren Mandel, Harold E. Shabo and James L. McCormick, Deputy Public Defenders, for respondent.

For Opinion on Hearing, see 83 Cal.Rptr. 179, 463 P.2d 403.

Defendant was charged with possession of marijuana (§ 11530, Health & Saf.Code).   The People appeal from order granting defendant's motion to set aside the information under section 995, Penal Code, and dismissing the case.

Around 7:30 p.m. on September 16, 1968, Officers Carreon and Rada were driving eastbound on Gage in an official black and white police vehicle when they observed defendant and another person on the sidewalk.   Defendant fit the general description of a “GTA suspect” who was to be located around 60th and Central about a block away.   When the officers were within 15 to 20 yards of him, defendant heard the noise of the police vehicle, turned around, looked at them and made a “furtive” motion with his hand to his left pants' pocket—“he turned around and looked at us and put his hand in his pocket real fast.”   Officer Carreon whipped the car around in front of defendant and stopped;  he stopped because defendant resembled the GTA (grand theft auto) suspect and because of his furtive actions.   The officers got out of the vehicle and, as they approached and were within 10 yards of defendant, Officer Carreon said, “Hold it there a moment”;  at the same time defendant made a second motion toward his left pocket, put his hand in, then yanked it out of his pocket in “a sort of jerking motion.”   Officer Carreon approached defendant “very cautiously due to the fact that [he] thought maybe he had a weapon in his pocket.”   They asked defendant his name but he did not answer, then to show identification;  defendant said he had none.   Officer Carreon began “patting him down” for weapons;  he ran his hand down defendant's side and when he ran his hand across the front left pants' pocket he felt “a bulge”;  defendant pushed the officer's hand away from his pocket and said, “Get your hand away from there.   You can't search me.”   Thinking it was a weapon,” Officer Carreon then put his hand in defendant's pocket and pulled out a folded over, crumpled, smashed down cellophane sandwish bag containing a green leafy substance which, because of his experience, he believed to be marijuana.   He then arrested defendant.

It is apparent from the statements of the trial judge that the basis of the order dismissing the information was that the evidence was obtained as the result of an unreasonable search and seizure arising out of an arrest made without probable cause.   We believe the trial judge to be in error.   While defendant's furtive and suspicious conduct combined with his action of pushing the officer's hand away from his pocket as he attempted a cursory search for weapons might afford him reasonable grounds to believe he was hiding contraband, at no time did Officer Carreon claim that this was the reason he reached into defendant's pocket or that he believed defendant had narcotics in his possession.   To the contrary, the officer consistently testified that because of defendant's actions he thought defendant might have a weapon in his pocket, for that reason he approached defendant “very cautiously” and made a cursory search for weapons;  while “patting him down” he felt a bulge in his left pants' pocket and “thinking it was a weapon,” reached in and pulled out the object which turned out to be a crumpled, folded over plastic bag of marijuana.   It was then defendant was arrested.

 It is well settled that in the discharge of his duties an officer may stop and question a person at night “when the circumstances are such as would indicate to a reasonable man in a like position that such a course is necessary to the proper discharge of those duties.”  (People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 95–96, 41 Cal.Rptr. 290, 292, 396 P.2d 706;  People v. Mickelson, 59 Cal.2d 448, 450–452, 30 Cal.Rptr. 18, 380 P.2d 658;  People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57;  People v. Murray,a 270 Cal.App.2d 201, –––, 75 Cal.Rptr. 625;  People v. Gregg, 267 Cal.App.2d 567, 568, 73 Cal.Rptr. 362;  People v. Cruppi, 265 Cal.App.2d 9, 11–13, 71 Cal.Rptr. 42;  People v. Hilliard, 221 Cal.App.2d 719, 723, 34 Cal.Rptr. 809.)   Circumstances short of probable cause for an arrest may justify temporary detention for investigation and questioning (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658;  People v. Martin, 46 Cal.2d 106, 108, 293 P.2d 52), and such temporary detention does not constitute an arrest.  (People v. Alcala, 204 Cal.App.2d 15, 19, 11 Cal.Rptr. 31.)   Thus, the propriety of the officers stopping defendant to question him is completely separate from the issue of whether they had the right to stop, arrest him and conduct a search.  (People v. Mickelson, 59 Cal.2d 448, 452, 30 Cal.Rptr. 18, 380 P.2d 658;  People v. Gale, 46 Cal.2d 253, 257, 294 P.2d 13;  People v. Ellsworth, 190 Cal.App.2d 844, 846, 12 Cal.Rptr. 433.)

 Each case must be judged in the light of the factual situation presented to the officer.   The reasonableness of the officer's decision to make an investigation is determined in the light of the facts and circumstances as they appeared to him at the time he was required to act.  (People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57.)   It was dark at the time the officers observed the defendant;  the area was one in which “numerous GTA's have occurred” and within a block of where a particular GTA suspect, whom defendant resembled, could be located.   Because defendant fit the general description of this suspect and because of defendant's act of putting his hand in his pocket “real fast” upon seeing the official police vehicle, the officers stopped to investigate.   As they approached him defendant again reached his hand into the same pants' pocket and “jerked it out fast.”   The totality of the circumstances described by the police officers clearly establishes grounds to stop and detain defendant.

 The right to investigate gives rise to the right to conduct a reasonable search for weapons in order to protect the safety of the officer.   (People v. Mickelson, 59 Cal.2d 448, 450–451, 30 Cal.Rptr. 18, 380 P.2d 658;  People v. Gregg, 267 Cal.App.2d 567, 569, 73 Cal.Rptr. 362.)   It was dark and the officers were alone with defendant and his companion in an area in which there had been numerous auto thefts, and defendant resembled a GTA suspect who could be located a block away.   This together with defendant's furtive and suspicious movements to his pants' pocket caused Officer Carreon to approach defendant “very cautiously” because he thought maybe he had a weapon in his pocket.   Then when defendant again made a motion to his pocket jerking his hand out and failed to identify himself upon request, Officer Carreon began a cursory search for weapons patting him down and running his hands down defendant's side.   When his hand passed across the front left pants' pocket he felt a bulge and defendant pushed his hand away.  “Thinking it was a weapon,” he put his hand in defendant's pocket and pulled out what he thought to be a weapon but which turned out to be a crumpled, smashed down cellophane sandwich bag filled with marijuana.   The foregoing circumstances and the officer's right to protect himself fully warranted him in reaching into defendant's pocket.   While the officer did not mention the kind of weapon he thought might be in defendant's pocket, the evidence before the magistrate was susceptible of the inference that Officer Carreon reasonably and in good faith believed that the pocket contained a weapon.  (People v. Nunn, 264 Cal.App.2d 919, 925, 70 Cal.Rptr. 869.)

 That the “bulge” may not have been metal-hard does not alter our conclusion, for “an officer is not limited in the frisk or pat-down search to locating “hard” firearms or knives.”  (People v. Armenta,b 268 Cal.App.2d 248, –––, 73 Cal.Rptr. 819, 821.)   In Armenta the court rejected the same argument made by the same public defender.  “What the public defender argues is tantamount to saying to the criminal suspect that if he can think of anything soft to carry, although lethal, it will be protected from any search for weapons for the reason that it is soft and not hard.   This the respondent asserts in spite of the fact that the item made a definite bulge in the wearing apparel of the suspect and the officer reasonably believed from the furtive conduct of the suspect that he was armed with some sort of a weapon which if used could be fatal to the officer.   In short, a rubber water pistol loaded with carbolic acid or some other liquid, which if used by a suspect could permanently blind an officer, should be protected from a ‘pat down search’ because it is ‘soft’ and not ‘hard’.   We are persuaded that such is not the law.”  (P. –––, 73 Cal.Rptr. p. 821.) c  In any event, there is nothing in the record to indicate that the bulge was hard or soft or how it felt to the officer, except that he thought it was a weapon.   The fact that the pat-down search turned up marijuana instead of a weapon is of no consequence and did not render the narcotic inadmissible in evidence.   The officer was not required to blind himself to the marijuana simply because it was disconnected from the intentional purpose of the search.  (People v. Blodgett, 46 Cal.2d 114, 117, 193 P.2d 57;  People v. Armenta,d 268 Cal.App.2d 248, –––, 73 Cal.Rptr. 819;  People v. Garrett, 238 Cal.App.2d 324, 327, 47 Cal.Rptr. 731;  People v. Kraps, 238 Cal.App.2d 675, 680, 48 Cal.Rptr. 89.)   It was after Officer Carreon found the marijuana in the cellophane bag and recognized it as such that he arrested defendant for the commission of a felony—unlawful possession of marijuana.  (§ 11530, Health & Saf.Code.)

The order is reversed.


FOOTNOTE.  FNa.Advance Report Citation:  270 A.C.A. 225, 227.

FOOTNOTE.  FNb. Advance Report Citation:  268 A.C.A. 264, 268.

FOOTNOTE.   Advance Report Citation:  P. 267.

FOOTNOTE.  FNd. Advance Report Citation:  268 A.C.A. 264, 269.