IN RE: KENNETH B.

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

IN RE: KENNETH B., A Minor. PEOPLE of the State of California, Plaintiff and Appellant, v. KENNETH B., Defendant and Respondent.

A016802.

Decided: March 29, 1983

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Ann K. Jensen, Nathan D. Mihara, Deputy Attys. Gen., San Francisco, for plaintiff and appellant. Quin Denvir, State Public Defender, Diane M. Griffiths, Deputy State Public Defender, San Francisco, for defendant and respondent.

The People of the State of California appeal from an order of the juvenile court dismissing a Welfare and Institutions Code section 602 petition charging that Kenneth Lee B. (Kenneth) had unlawfully carried, concealed upon his person, a handgun described as a .357 magnum revolver.   The juvenile court found that the police had discovered and seized the handgun by constitutionally impermissible means.

The relevant evidence adduced in the juvenile court was uncontroverted, and may reasonably be narrowed to the following.

Police officers, on duty patrolling streets of the City of Monterey one night, observed two young men.   One of them, who was later identified as one Alvin, a minor, was carrying an ax, or pick, handle.   The police car pulled over and an officer asked him “why he was carrying the ax handle.”   Alvin stated “that he was carrying it for self-protection, that somebody had tried to get him down the street.”   Further, testified the officer:  “I was conducting an interview, trying to ascertain why they in fact had the pick handle and I thought I would check this person I was interviewing, being [Kenneth], for any type of weapons that he might have on him due to his nervous nature․  I stepped behind [Kenneth] and I began patting with my right hand from the right side of his waist to the front․  When I moved to the front of his waistband, I felt a hard object that I believed to be the butt of a gun․  It [was] an Astro brand .357 magnum revolver.”

Following the hearing on Kenneth's motion to suppress the .357 magnum revolver the juvenile court, granting the motion, stated:

“I'll order that the evidence, that is the weapon found upon the minor be suppressed ․ because I believe the finding of the stick in the possession of the other minor did not give the police probable cause to believe that the minor [Kenneth] would have had a weapon concealed.   And I felt the minor [Kenneth] was not threatening or posing a danger to the officer since the second officer there was keeping a close watch on [Kenneth].  Therefore, there is no probable cause or immediate necessity to search.   And for these reasons ․ it's suppressed.   And pursuant to section 800 of the Welfare and Institutions Code, the matter will be dismissed.”

It becomes our duty, from the uncontradicted evidence of the case, and as a matter of law, “to measure the facts, as found by the trier, against the constitutional standard of reasonableness.”  (People v. Leyba, 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961.)   In doing so, we find ourselves in complete disagreement with the juvenile court.

The appellate contention, as we understand it, springs from the weapons search of Kenneth by the police officer.

We first observe that the juvenile court erroneously applied the test of “police probable cause [to believe that Kenneth] would have a weapon concealed” upon his person.

 It is well settled that in the course of a police investigation, whether or not there be probable cause for arrest, “if circumstances warrant, the officer may conduct a precautionary pat-down search for weapons.”   (People v. Hill, 12 Cal.3d 731, 744, 177 Cal.Rptr. 393, 528 P.2d 1 [overruled on other grounds in People v. DeVaughn, 18 Cal.3d 889, 896, 135 Cal.Rptr. 786, 558 P.2d 872].)  The rule permitting such pat-down searches results from judicial mindfulness of “the dangers daily faced by the men who bear the burden of policing our streets and highways, and of the fact that even a minor ․ citation incident can occasionally erupt into violence.”   (People v. Brisendine, 13 Cal.3d 528, 537, 119 Cal.Rptr. 315, 531 P.2d 1099.)  “ ‘Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties․'  The courts should do all in their constitutional powers to minimize these risks.”   (People v. Superior Court (Keifer), 3 Cal.3d 807, 829, 91 Cal.Rptr. 729, 478 P.2d 449.)

Moreover, here one of the two young men, in the dark of night, was seen carrying an ax handle, which, if intended for use as a weapon upon the person of another would have constituted possession of a “billy,” proscribed as a felony by Penal Code section 12022.  (See People v. Grubb, 63 Cal.2d 614, 619, 620, 621, 47 Cal.Rptr. 772, 408 P.2d 100;  People v. Deane, 259 Cal.App.2d 82, 89–90, 66 Cal.Rptr. 177.)   A billy is “a heavy usu. wooden weapon for delivering blows.”  (Webster's Third New International Dictionary, p. 216.)   Although, like a baseball bat, or a removed table leg, or a piece of lumber, it may also have a lawful purpose, it is a forbidden billy if possessed or carried for a probable violent purpose.  (People v. Grubb, supra, 63 Cal.2d at pp. 619, 622, 47 Cal.Rptr. 772, 408 P.2d 100;  People v. Deane, supra, 259 Cal.App.2d at pp. 89–90, 66 Cal.Rptr. 177.)   And if it is possessed for use upon the person of another, it is of no consequence that it is carried “for protection,” or as here, where its possessor admitted he carried it for self-protection “because somebody had tried to get him down the street.”  (People v. Deane, supra;  and see People v. Grubb, supra.)

 Upon Kenneth's companion's admission that he was carrying the ax handle for an unlawful and violent purpose, the law's decent concern for the safety of its enforcement officers reasonably permitted what has been described by Chief Justice Traynor as “a superficial search” of both young men by “running his hands over [their] clothing to protect himself against attack with a hidden weapon.”  (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658;  People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531.)

Anything less would overlook what courts are commanded not to overlook;  i.e., “the fact that ‘American criminals have a long tradition of armed violence’ ․, and that a significant number of assassinations of officers occur when they are engaged in making routine ․ stops and investigations.”   (People v. Hill, supra, 12 Cal.3d 731, 745, 117 Cal.Rptr. 393, 528 P.2d 1.)   And while, of course, the validity of a detention or search will not reasonably be determined by its result, the juvenile court's ruling here illustrates the point;  the officer was obliged by it, while he continued with his investigation and probable arrest of the billy's possessor, to suffer impotently the probability of death or violence at the hands of his nearby companion, Kenneth.

(Nor do we find the three to four minute interview during which the ax handle was seized, and before the weapon's search, to have been unreasonably prolonged, as claimed by Kenneth.)

The juvenile court's order dismissing the Welfare and Institutions Code section 602 petition is reversed.

I CONCUR:

I agree with the majority's analysis relating to the proper scope of review on appeal from an order granting suppression (see People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961;  People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621) in connection with the application of established principles governing a precautionary pat down search for weapons.  (People v. Hill (1974) 12 Cal.3d 731, 744–745, 117 Cal.Rptr. 393, 528 P.2d 1.)   Since it appears the trial court incorrectly considered the standard of “probable cause” in determining the legal justification for the limited search, I would reverse solely on that basis and remand for a de novo factual determination of the reasonable necessity for such search under the circumstances shown.

ELKINGTON, Associate Justice.

HOLMDAHL, J., concurs.