PEOPLE v. DALTON

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Steve DALTON, Defendant and Appellant.

Cr. 6078.

Decided: February 28, 1983

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Mark L. Christiansen, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just and Clayton S. Tanaka, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Appellant Steve Dalton and codefendant Warren Kelly were charged by information with one count of burglary in violation of Penal Code section 459.   Appellant filed a motion to suppress evidence found during a search of a car.   The motion was denied.   Appellant then pled guilty to first degree burglary.   He was committed to the California Youth Authority for a maximum term of six years.

Appellant's sole contention on appeal is that the trial court erred in denying his motion to suppress.

Just prior to 4 a.m. on September 20, 1981, Modesto Police Officer Don Watson was on patrol.   He received a call that a citizen had seen two suspicious persons inside a large white car parked in front of 2109 Durango.   When Watson arrived at the address, he recognized the car as one he had stopped two months earlier for having bald tires.   At the time of the traffic stop, the car was driven by codefendant Kelly.   Both Kelly and the car were suspected of having been involved in a north area burglary.

After Watson arrived at the scene, he spoke to Mr. Bowman who lived directly across the street from where the car was parked and who had made the police report.   Bowman described the two persons who had been in the car as white males, probably adults, and very thin.   Watson looked into the car and saw the following items piled on the backseat and floorboard:  a number of power tools, cassette tapes, a welding helmet, a “lot of stereo equipment” and miscellaneous tools.   From his experience and training, Watson recognized the items as common targets of burglaries.   No one was in the car at the time, and there were no other cars on the street.

Officer Key arrived at the scene and was informed of the circumstances.   The officers then observed appellant and Kelly walking towards the car on the same side of the street.   The suspects were about 50 to 75 yards from the car when they were stopped by the officers.   Watson recognized Kelly from the traffic incident two months before and asked him why he was out so late.   Kelly explained that appellant and his wife, with whom Kelly lived, had had an argument;  the two men had left so they could “walk off their madness.”   The suspects told Watson they were walking from appellant's apartment which was approximately eight blocks away.

Watson then asked Kelly, “How come the car I stopped you in before is parked down the street with a bunch of power tools in it?”   Kelly replied that the tools in the car were not stolen but belonged to him.   Kelly's story seemed inconsistent to Officer Watson.   Kelly admitted owning the car when he was being transported to the police station after he had been arrested.

The two officers performed pat-down searches because they had made a felony stop and were concerned for their safety.   Watson found and seized a pair of needle-nosed pliers from Kelly's back pocket.   Key searched appellant and found a pair of needle-nosed wire cutters, a pair of diagonal wire cutters, a knife and a screwdriver.   Watson then informed the suspects he was taking them into custody while he investigated the “possibility of the tools ․ in the vehicle being stolen.”   The suspects were handcuffed and placed in separate patrol cars.

After the suspects had been placed in the cars, Watson went to the residence where Kelly's car was parked.   The front gate adjacent to the car was standing open, and a door at the side of the garage was open.   Watson contacted Mr. Morrill who lived in the residence.   Morrill identified four items in the back of the car as belonging to him.   Appellant and Kelly were then arrested.   Approximately 10 minutes elapsed from the time the officers stopped the suspects until Morrill identified the items in the vehicle.

Officer Watson acknowledged that when he detained the two suspects, he had not observed anything illegal.   There had been no report of a burglary in the area.   When Watson looked into the vehicle, he could not identify any of the tools or items as stolen.

DISCUSSION

Appellant does not seriously contend the officers acted unreasonably in stopping him and Kelly and asking Kelly (1) why he was out so late and (2) why the car Kelly had been stopped in before was parked down the street with “a bunch” of power tools in it.  (See In re Tony C. (1978) 21 Cal.3d 888, 892–893, 148 Cal.Rptr. 366, 582 P.2d 957.)   Appellant, however, argues that the subsequent pat-down search was an unreasonable intrusion into his and Kelly's right to privacy, thereby rendering all evidence thereafter obtained unlawful under the Fourth Amendment.

 A pat-down search is constitutionally permissible when the investigating officer reasonably believes it is necessary for his protection or the safety of another.  (Terry v. Ohio (1968) 392 U.S. 1, 26–27, 88 S.Ct. 1868, 1882–1883, 20 L.Ed.2d 889.)   Although Terry often is cited for the proposition that a protective search is permissible only when the officer reasonably believes the suspect is armed and dangerous, the case is not so limited:

“We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous ․ he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”  (Id., at p. 30, 88 S.Ct. at p. 1884, emphasis added;  see also 3 LaFave, Search and Seizure, A Treatise on the Fourth Amendment (1978) § 9.4, pp. 113–114.)

Terry explains that criminals have a long tradition of armed violence;  every year in this country many law enforcement officers are killed in the line of duty and thousands more are wounded.   Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.   (Terry v. Ohio, supra, at pp. 23–24, 88 at pp. 1881–1882.)  “In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for arrest.”  (Id., at p. 24, 88 at p. 1881.)

 Obviously, not all stops call for a frisk.   As Professor LaFave explains, “[t]he police are frequently cautioned to assume that every person encountered may be armed, which is sound advice if it means only that the officer should remain alert in every case;  but it cannot mean and has not been interpreted by the police to mean that a search for weapons may be undertaken in every case.”  (3 LaFave, supra, at p. 115, fns. omitted.)   The right to frisk may be “automatic” only when the suspect has been lawfully stopped for questioning upon the suspicion that “he has committed, was committing, or was about to commit a type of crime for which the offender would likely be armed, whether the weapon would be used to actually commit the crime, to escape if the scheme went awry, or for protection against the victim or others involved.   This includes such suspected offenses as robbery, burglary, rape, assault with weapons, and dealing in large quantities of narcotics.”   (Id., at p. 116, fns. omitted.)

It was objectively reasonable for the officers to pat-down appellant and Kelly.   First, it was reasonable for the officers to suspect that the two men were involved in criminal activity.   Kelly and the car parked on the street were suspected of having been involved in an earlier burglary, and items commonly taken in burglaries were piled in the back of the car.   Kelly's explanation for why he and appellant were walking in the neighborhood was highly disingenuous in light of the location of the car, the suspects and appellant's apartment.   Officer Watson knew that two white males matching the suspect's description had been inside the car only a few minutes earlier.   Finally, when Kelly was asked, “How come the car I stopped you in is parked down the street with a bunch of power tools in it,” Kelly immediately volunteered that the tools were not stolen.

Second, it was reasonable to believe the suspects might be armed and dangerous.   It is common knowledge that anyone who engages in a burglary, especially in a residential area at night, is likely to carry burglar tools or other weapons which could be used to protect the burglar from attack by the property owner or others who might attempt to interfere with the burglar's clandestine activity.  (See People v. Myles (1975) 50 Cal.App.3d 423, 430, 123 Cal.Rptr. 348.)   The fact there were two officers present does not eliminate the danger of confronting two men at night who may be armed.   As Terry v. Ohio, supra, explains, “it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.”   (392 U.S. at p. 23, 88 S.Ct. at p. 1881.)  People v. DeVaughn (1977) 18 Cal.3d 889, 135 Cal.Rptr. 786, 558 P.2d 872, cited by appellant for the proposition that the pat-down search was unreasonable, is factually distinguishable from the instant case.

 The next question is whether the officers acted reasonably in handcuffing the two suspects and placing them in the back of the patrol cars while the officers continued to investigate for a possible burglary in the neighborhood.   At this point in time the officers had no knowledge of a specific crime relating to the items in Kelly's car;  hence, no probable cause to arrest appears to have existed.  (People v. DeVaughn, supra, 18 Cal.3d at p. 895, 135 Cal.Rptr. 786, 558 P.2d 872.)

We do not suggest that probable cause may never exist unless the officers have knowledge that a specific crime has been committed.   Probable cause for arrest exists when the facts known to the arresting officer would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a felony.  (People v. DeVaughn, supra, 18 Cal.3d at p. 895, 135 Cal.Rptr. 786, 558 P.2d 872.)   In People v. Siegenthaler (1972) 7 Cal.3d 465, 468–469, 103 Cal.Rptr. 243, 499 P.2d 499, probable cause to arrest was found to exist where at 2:45 a.m. officers in a marked police vehicle observed three men on foot who, after looking in the direction of the police vehicle, immediately ran off in the opposite direction.   The officers were in a commercial area where there had been many burglaries of business establishments although they were not aware that any particular burglary had recently taken place.   The officers pursued the men and saw them discard objects which on examination proved to be a business-type checkbook and a checkwriter.   The officers continued the pursuit and apprehended the three men.   The Supreme Court held that under the circumstances the police had probable cause to arrest, i.e., “to conscientiously entertain a strong suspicion that defendant and his companions had committed a burglary.”  (Id., at p. 469, 103 Cal.Rptr. 243, 499 P.2d 499.)

On the other hand, in People v. DeVaughn, supra, 18 Cal.3d 889, 893–895, 135 Cal.Rptr. 786, 558 P.2d 872, the arresting officers were summoned to the scene by a patrol officer who had seen two men running in the street and dart between houses on his approach.   When apprehended, the men were nervous and inconsistent in their responses to questioning.   The officers possessed only general information of the high burglary rate in the neighborhood.   The stop was at 1 p.m., and the officers had no reason to believe that any specific crime had recently been committed.   The Supreme Court held that the arrest was “manifestly illegal” because of the absence of probable cause to believe the men had been engaged in any felonious activity.

Siegenthaler, supra, 7 Cal.3d 465, 103 Cal.Rptr. 243, 499 P.2d 499 is distinguishable from DeVaughn, supra, 18 Cal.3d 889, 135 Cal.Rptr. 786, 558 P.2d 872 and the instant case.   In Siegenthaler the suspects had manifested to the officers a strong consciousness of guilt by running away from the officers and discarding items commonly stolen in burglaries, i.e., a checkbook and checkwriter.   No such evidence was present in DeVaughn or in the instant case.

Nevertheless, we hold the officers were justified in detaining the suspects for a few additional minutes after the discovery of the “burglary tools.”  (To have neglected to investigate further, would have constituted a failure to properly discharge their duties as officers (see People v. Flores (1974) 12 Cal.3d 85, 91–92, 115 Cal.Rptr. 225, 524 P.2d 353).)   Rather than risking the possibility of the suspects fleeing and perhaps injuring someone in the process (a distinct possibility with one officer standing alone with the two suspects while the other officer investigated for a burglary), the suspects were handcuffed and placed in the patrol cars.   This further restraint protected the suspects as well as the officers from possible injury.   While the intensity of the intrusion into the suspects' privacy arguably was of a greater magnitude when they were handcuffed, the greater intrusion does not violate Fourth Amendment principles provided the duration of the intrusion was not too long.   Since the detention while handcuffed comprised only about four minutes, and the total detention from the initial stop to the ultimate arrest after discovery of the burglary comprised about ten minutes, the detention met constitutional standards.

As explained by LaFave:  “[a] suspect may be detained while it is determined if in fact an offense has occurred in the area, a process which might involve checking certain premises, ․ or talking with other people.”   Although these investigative methods are not inherently objectionable, they might be held unreasonable “if their use makes the period of detention unduly long or involves moving the suspect to another locale.”  (3 LaFave, supra, § 9.2, p. 37.)   In the present case appellant and Kelly were detained by the officers for a total period of about 10 minutes, a reasonable period of time under the circumstances.

The judgment is affirmed.

FRANSON, Acting Presiding Justice.

ANDREEN and MARTIN, JJ., concur.