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

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF MARIN, Respondent, Steven Vance SCOTT, Real Party In Interest.

Civ. 33834.

Decided: November 28, 1973

Evelle J. Younger, Atty. Gen., of Cal., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., Doris H. Maier, Asst. Atty. Gen., Writs Sections Karl S. Mayer, Ann. K. Jensen, Deputy Attys. Gen., San Francisco, for petitioner. Judd Riley Scott, Gary, Nielsen & Scott, San Francisco, for real party in interest.

The People seek mandate to set aside an order granting a motion to suppress evidence.   The principal question is to whether the element of transportation is a special circumstance which justifies a pat-down search in a non-arrest situation.

Shortly after midnight on December 31, 1972, California Highway Patrol Officers Schultz and Ellies, who were patrolling Highway 101 in Marin County, observed real party defendant (“Scott”) and his three-year-old son standing by the off-ramp of the freeway.   Both Scott and the child were urinating in plain view.   The officers stopped, and Officer Schultz advised Scott that he could not hitchhike on the freeway.   Scott appeared to be so intoxicated, according to Officer Schultz, that he was unable to care for either himself or his young son.1  When asked for identification, Scott responded in a profane manner that he had none.   Scott then advised the officers that after an argument with a friend with whom he had been riding, he and the child had been let out on the freeway and were attempting to get to San Francisco where he was to return the child to his former wife, the child's mother.

Although, under the facts stated by Officer Shultz, probable cause clearly existed to arrest Scott for a violation of Penal Code section 647, subdivision (f), because of the lateness of the hour and because the fact that the boy appeared cold and scared, the officers decided to give Scott and the boy a ride to San Francisco rather than to arrest him.

Officer Schultz advised Scott that he was going to pat him down before he would let him get in the back seat of the patrol car, explaining to him that it was “for our own protection.”   Officer Schultz asked Scott to raise his hands.   During this maneuver Schultz observed in Scott's pocket a Marlboro hardpack and a plastic bag with green matter in it.   He suspected that the plastic bag contained marijuana.   He squeezed the outside of the pocket, feeling a pliant, crunchy substance, and removed it.   Scott was thereupon placed under arrest for possession of marijuana.   The officers then opened a brown paper bag which Scott had placed on top of his suitcase, finding two full beer cans and a tobacco can.   Inside the tobacco can the officers found numerous white tablets which appeared to be LSD, whereupon the officers advised Scott he was also under arrest for possession of dangerous drugs.

 As Officer Schultz had no warrant for the arrest or search of Scott, the burden to demonstrate justification for the police conduct rested on the prosecution (Badillo v. Superior court (1956) 46 Cal.2d 269, 272, 294 p.2d 23;  People v. Superior Court (Simon) 7 Cal.3d 186, 192, 101 Cal.Rptr. 837, 496 P.2d 1205).

It was the contention of the People in the trial court that the pat-down search of Scott was justified even though he was not under arrest because he was to be transported in a police vehicle.

The trial court concluded that, in the absence of a showing that the officer had reason to believe that he was dealing with an armed and dangerous individual or that his safety or that of others was in danger, the pat-down search which resulted in the finding of the contraband was improper.   The trial court made the following express findings:  (1) That the offer to give Scott a ride to San Francisco was a voluntary act;  (2) that the officer had no reason to believe he was dealing with an armed or dangerous individual;  (3) that Scott was not under arrest at the time of the pat-down search;  and (4) that any consent given was in submission to authority.

The trial court's findings must be upheld if they are supported by substantial evidence.   Our task, on review, is to measure the facts, as found by the trier, against the constitutional standard of reasonableness (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621).

In granting the motion to suppress, the trial court relied upon the rules of law stated in People v. Lawler, supra, and People v. Superior Court (Simon), supra.

In Simon, at page 206, of 7 Cal.3d, page 852 of 101 Cal.Rptr., page 120 of 496 P.2d the court held that “when a police officer observes a traffic violation and stops the motorist for the purpose of issuing a citation, a patdown search for weapons as an incident to that arrest must be predicated on specific facts or circumstances giving the officers reasonable grounds to believe that a weapon is secreted on the motorist's person.”  (Emphasis added).

The court in Simon also addressed itself to the constitutionally permissible scope of a search of a traffic violator who is required to be transported before a magistrate pursuant to Vehicle Code, section 40302 (pp. 208–211).   The court ruled as follows:  “The clear and unmistakable import of these provisions [§§ 40300–40604], when read together, is that a person taken into custody pursuant to section 40302 must be transported directly to a magistrate or to one of the officials listed in section 40307, and must immediately be released on bail or written promise to appear.   Accordingly, he cannot lawfully be subjected to the routine booking process used in the case of a nontraffic misdemeanant;  nor can he be searched as an incident of that process, either in the field or at a police station.   We conclude that the search of defendant in the case at bar cannot be justified as an incident of Officer Erickson's decision to take him into custody for transportation before a magistrate pursuant to section 40302.”  (P. 209, 101 Cal.Rptr. p. 854, 496 P.2d p. 1222;  emphasis partially added.)

The Simon court then overruled a line of cases beginning with Morel v. Superior Court (1970) 10 Cal.App.3d 913, 89 Cal.Rptr. 297, which purported to justify a full “body search” of each and every traffic offender whom the police propose to transport before a magistrate pursuant to Vehicle Code sections 40302 or 40303.

In People v. Lawler, supra, the court concluded that a pat-down search of a hitchhiker's sleeping bag, conducted in the absence of sufficient unusual circumstances to justify a search for weapons, constituted an illegal search.   No transportation was involved in Lawler.

The People contend that the facts in Lawler are distinguishable from this case, because Lawler involved only a detention because of a pedestrian traffic violation and there was no indication that the police were going to transport the defendant in a police vehicle.   The people submit “that the transportation of an individual in a police vehicle provides a crucial factor which gives rise to a permissible limited intrusion upon an individual's constitutional rights when balanced against the importance of protecting police officers against an unnecessary exposure to risk of danger.”

The People rely on the rationale of the concurring opinion of Simon wherein Chief Justice Wright draws a clear and valid distinction between a fully body search and a mere pat-down search and concludes (with two other justices concurring) that a pat-down search prior to transportation in a police vehicle should be held permissible.   Thus, the Chief Justice says:  “I read the opinion of the majority as holding that the transportation of a traffic law violator to a magistrate pursuant to Vehicle Code section 40302 and 40303 does not justify subjecting the arrestee to a search.   I concur in this holding insofar as it relates to a full body search.   The majority, however, does not reach the question whether the police may make a pat-down search prior to such transportation.1  I am of the opinion that we should eliminate any doubt and that we should approve a pat-down search in such circumstances.”  (Simon, supra, pp. 211, 212, of 7 Cal.3d, p. 856 of 101 Cal.Rptr., p. 1224 of 496 P.2d;  emphasis partially added.)

In support of his conclusion the Chief Justice notes that the balance of governmental interest and the intrusion on individual rights varies with each particular situation.   Thus, although it was held in Terry v. Ohio (1967) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 that before a pat-down search in non-arrest circumstances can be made, the officer must have reason to believe he may be dealing with an armed dangerous individual, in the case of a search incident to a lawful nontraffic arrest a full body search can be made of the arrestee and a search of the immediate area under his control from which he might take a weapon or destroy evidence is also permitted (Chimel v. California (1968) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685).

Furthermore, differences between the brief detention in Terry and the custody of a person who is to be transported to a magistrate were pointed out as follows:  “The custody of a person who is to be transported to a magistrate is different from the ‘custody’ of the Terry ‘stop and frisk’ situation, and is indeed similar to the custody of someone who is searched incident to an arrest on a criminal charge before being transported to a detention facility.   It is clear that the balance between the factors involved—the safety of the police officer required by law to transport the individual detained and the relatively minor intrusion on privacy of a pat-down search—weighs in favor of permitting pat-down searches in such circumstances.”  (P. 213 of 7 Cal.3d p. 856 of 101 Cal.Rptr., p. 1224 of 496 P.2d;  emphasis added.)

Chief Justice Wright concluded:  “The critical factor in these or similar situations is not the greater likelihood that a person taken into custody is armed, but rather the increased likelihood of danger to the officer if in fact the person is armed.   When it becomes necessary that an officer confine a traffic law violator within his police vehicle, the officer risks the danger that the violator may be armed with and draw a weapon.   This danger is not necessarily eliminated by handcuffing the traffic law violator as he may still be able to reach a weapon secreted on his person.   And, incident to the entire process of transportation, it may be impossible for the officer to keep the violator under constant surveillance by reason of the requirements of driving the vehicle and other responsibilities.   In my opinion, the specifically articulable fact of the increased danger to the officer reasonably warrants the limited or relatively minor intrusion of the pat-down search in those instances when traffic law violators are transported to a magistrate pursuant to the provisions of Vehicle Code sections 40302 or 40303.”  (P. 214, 101 Cal.Rptr. p. 857, 496 P.2d p. 1225;  emphasis partially added.)

 Scott concedes that the question of the lawfulness of a pat-down search under circumstances when it is duly of an officer to transport a traffic violator to a magistrate “perhaps should be resolved in a proper case,” but contends that this is not the case in which to resolve the question, since the transportation here was voluntary and not undertaken “pursuant to Penal Code provisions or other lawful authority.”   We do not agree.   Rather, we are persuaded by the concurring opinion in Simon and the holding of People v. Ramos (1972) 26 Cal.App.3d 108, 102 Cal.Rptr. 502 (hg. den.), where a pat search of a person not under arrest prior to transportation in a police vehicle was upheld.

In Ramos, a male wearing a black sweater was seen walking away from a car involved in a hit-and-run accident.   A police officer, on his way to the scene of the accident one-half hour later, saw Ramos, wearing a black sweater, in a telephone booth four blocks from the scene.   After questioning Ramos, the officer told him he “was going to have to take him back down there,” but that he was not arresting him.   Ramos “ ‘kind of agreed along with that.’ ”   The officer, following department policy, conducted a pat-down search of Ramos prior to placing him in the police vehicle.   The pat-down search yielded a switchblade knife, whereupon Ramos was placed under arrest.   The court found the pat-down search prior to placing the defendant in a police vehicle to be justified, as follows:  “When DeLucia saw the black-sweatered Ramos, he was performing his duty as a policeman to investigate whether Ramos was a witness to the hit-and-run accident.   DeLucia asked him a general question and rationally suspected after Ramos answered, he was the passenger who left the vehicle.   DeLucia's requiring Ramos to go with him to the scene for more investigation was reasonable.   The patdown of Ramos before he was put in the police car was a sensible precaution.  People v. Superior Court (Simon) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205, does not dictate to the contrary.   Ramos was not handcuffed;  policemen have been attacked and killed by back seat passengers which concealed guns and knives.   DeLucia's arrest of Ramos after he found a switch-blade knife was lawful.”

Ramos was not under arrest at the time of the pat-down search, nor was there a showing that the officer had reason to believe that he was dealing with an armed and dangerous individual.   It appears, therefore, that Ramos stands for the proposition that, as a matter of law, every person who is to be transported in a police vehicle, for any reason may be subjected to a pat-down search, the very reasoning that was disapproved by the majority in People v. Superior Court (Simon), supra at page 211, 101 Cal.Rptr. page 855, 496 P.2d page 1222 2 unless we are to interpret the majority opinion as disapproving only full body searches rather than pat-down searches, which would appear to be the case from Chief Justice Wright's concurring opinion (p. 215, 101 Cal.Rptr. p. 858, 496 P.2d p. 1226), as follows:  “I am of the opinion that a pat-down search prior to the transportation of a traffic law violator pursuant to Vehicle Code section 40302 or 40303, and a full search incident to extended detention awaiting posting of bail are both reasonable and constitutional searches.   I read the majority opinion as implying nothing to the contrary, I concur in that opinion.”  (Emphasis added.)

We see no reason to differentiate the risks involved in the transportation of a person in a police vehicle in a non-arrest situation from the risks involved in transportation in a traffic arrest situation.   In fact, the increased likelihood of danger to an officer caused by confinement of the person to be transported in his vehicle is even greater in a non-arrest situation, since that person will not be in handcuffs or otherwise restrained.

We conclude that the element of transportation in a police vehicle is a special circumstance which justifies a pat-down search of the individual to be transported in a non-arrest situation (People v. Ramos, supra, 26 Cal.App.3d at p. 112, 102 Cal.Rptr. 502).

 However, even though the pat-down search of Scott was valid, the soft object which was found did not justify the full search that was made (People v. Mosher (1969) 1 Cal.3d 379, 394, 82 Cal.Rptr. 379, 461 P.2d 659).3

Scott's counsel proceeded on the theory that under Simon no search prior to transportation was permitted, and he did not cite the Mosher case t the trial court nor to this court, although he did state to the trial court:  “I imagine that pat-search is still okay, but this definitely went beyond a pat-search.” 4

 Although the People argued the plain sight theory to the trial court in closing argument, contending that there was no search, since before the pat-down search began the officer saw the marijuana in plain sight in Scott's open pocket, the court made no finding on whether the marijuana was in “plain sight.” 5

 In light of the trial court's conclusion that even the pat-down search was improper, it is manifestly apparent that the “plain sight” issue was never passed upon.6

 It has been held that when a record of a section 1538.5 proceeding “affirmatively indicates that the trial court did not pass upon a factual issue, a finding thereon may not be implied.”  (People v. Superior Court (Thomas) (1970) 9 Cal.App.3d 203, 211, 88 Cal.Rptr. 21, 25;  Cohen v. Superior Court (1970) 5 Cal.App.3d 429, 435, 85 Cal.Rptr. 354;  People v. Alexander (1967) 253 Cal.App.2d 691, 695, 61 Cal.Rptr. 814.  (Emphasis added.)

Let a writ of mandate issue directing respondent court to vacate the order of August 14, 1973, suppressing evidence and to undertake such further proceedings as are consistent with the views expressed herein.


1.   Thus, he was described as being “very unsteady, his eyes were very bloodshot and his pupils appeared to be dilated.   While standing there talking to him, he would be swaying back and forth.   He would have to shift his feet to maintain his balance.”

1.  “ The majority does not reach this question because even if the pat-down search is valid, the soft object which was found would not justify the full search that was made.  (People v. Mosher (1970) 1 Cal.3d 379, 394, 82 Cal.Rptr. 379, 461 P.2d 659.)”

2.   The majority opinion stated (at pp. 210–211, 101 Cal.Rptr. p. 855, 496 P.2d at p. 1222):  “A divergent line of cases, however, has developed from the decision in Morel v. Superior Court (1970) 10 Cal.App.3d 913, 89 Cal.Rptr. 297.  (E.g., Pugh v. Superior Court (1970) 12 Cal.App.3d 1184, 1188, 91 Cal.Rptr. 168;  People v. Brown (1971) 14 Cal.App.3d 507, 511, 92 Cal.Rptr. 473.)   Departing from the prior cases in point, the court there stated it was not necessary to decide whether the charged violation was a ‘jailable’ offense.   Instead, the court devised a new rationale which if valid would justify a full ‘body search’ of each and every traffic offender whom the police propose to transport before a magistrate pursuant to sections 40302 or 40303.   Other Courts of Appeal, nevertheless, have scrupulously resisted adoption of the Morel rationale.  (People v.Millard (1971) 15 Cal.App.3d 759, 762, 93 Cal.Rptr. 402;  People v. Smith (1971) 17 Cal.App.3d 604, 607, 95 Cal.Rptr. 229, 231.)   Indeed, Smith particularly circumscribed the Morel rule by insisting it cannot ‘hold that, as a matter of law, every person who is to transported in a police vehicle, for any reason, may be subjected to a search ․  Such a routine invasion of privacy, unsupported by some special necessity, is constitutionally unwarranted.’   For the reasons discussed herein, we disapprove of Morel and its progeny.”   (Emphasis added.)

3.   The officer testified as follows:  “Q. Could you tell us how the pat down took place?   A. I asked the defendant to raise his hands.   He was wearing a Navy peacoat.   I started to pat him down.   I observed in the front of the Navy peacoat pocket a Marlboro hardpack and beside it was a clear plastic bag ․ Q. Could you see the substance inside the bag through the bag?   A. Yes.   I could see what appeared to be a green vegetable material matter.   AFter I observed that, I grabbed the outside of his pocket and could feel a pliable substance inside the plastic bag.   Q. What did you do then?   A. At that point, I retrieved it.”  (Emphasis added.)

4.   In Mosher, at page 394, 82 Cal.Rptr. page 388, 461 P.2d page 368, the court stated:  “Unless the officer feels an object which a prudent man could believe was an object usable as an instrument of assault, the officer may not remove the object from the inside of the suspect's clothing ․”  In People v. Collins (1970) 1 Cal.3d 658, 663, 83 Cal.Rptr. 179, 182, 463 P.2d 403, 406, the court held that “an officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon on which would feel like the object felt during the pat-down.”

5.  Under the plain sight rule objects falling in the plain view of an officer who has a right to be in a position to have that view are subject to seizure and may be introduced into evidence. (People v. Block (1971) 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 499 P.2d 961.)

6.  Under the plain sight doctrine there is in fact no search for evidence. (People v. Block (1971) 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 499 P.2d 961.)

KANE, Associate Justice.

TAYLOR, P.J., and ROUSE, J., concur.