PEOPLE v. LAWLER (1971)

This is an appeal by the People (Pen.Code, § 1238, subd. 7) from an order dismissing an information (Pen.Code, § 1385) which charged defendant with possession of marijuana for sale (Health & Saf.Code, § 11530.5), following the granting of defendant's motion under section 1538.5 of the Penal Code.

Officer Gott of the Vernon Police Department was on patrol at about 4:50 p. m., July 4, 1970. At the intersection of Downey and Bandini, he observed defendant standing in the number 2 traffic lane, pounding on passing motorists' windows. Gott did not know whether defendant was seeking help or possibly attempting to rob motorists. The officer parked his police car to investigate the circumstances. Defendant left the street and returned to the sidewalk where he joined two companions, a girl about 20 and a boy of 15. As Gott approached them, they grabbed their sleeping bags, stated that they were just hitchhiking, inquired if it was illegal to hitchhike, and attempted to leave. Gott detained them, asked them for identification, and questioned them further as to what they were doing there and why defendant had been in the street. They stated that they were going to Big Sur. They showed Gott a cardboard sign on which they had written ‘Big Sur,’ and asked the officer for a map which would show them how to get there. They said that a friend had given them a ride, leaving them in Vernon, and that they were somewhat lost and would like a map. Defendant seemed very nervous to Gott and appeared to want to leave. He kept grabbing his sleeping bag.

There were a train crossing and a traffic control box at the location at which they were standing. The sidewalk was small. With the three subjects, their gear and the officer there, the area was very congested. Gott decided to make ‘a routine pat-down search for weapons.’ He felt defendant's sleeping bag. There was a hard lump in it. Gott thought it might be an automatic weapon. He asked defendant if he had anything in his sleeping bag. Defendant said that there was nothing in the bag. Gott asked defendant if he would voluntarily show the officer what was in the bag. Defendant said that he would. Defendant untied the bag and pulled it. As it unrolled a knife¹ fell out as did some plastic bags containing marijuana.

The People argue on appeal: (1) that the pat-down of the sleeping bag was warranted incident to a lawful detention of defendant; and (2) that in view of defendant's consent to the search of the sleeping bag, the prior pat-down of the bag becomes immaterial.

The People correctly contend that the officer had a right to detain defendant for a violation of section 21957 of the Vehicle Code.² After having seen defendant pounding on the windows of passing cars, Gott was justified in investigating further to ascertain whether defendant's purpose was solely to hitchhike or whether he posed some other threat to motorists. Gott was warranted in conducting a cursory search for weapons and defendant's persistence in grabbing his sleeping bag gave justification to include the ‘pat-down’ to that article.

The court below expressed the belief that a pat-down of defendant's personal effects (the sleeping bag), as opposed to a frisk of defendant himself exceeded constitutional limits. We do not agree. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, permits an officer who reasonably believes that a suspect may possess a concealed weapon to conduct a cursory search for self-protection. The scope of the search permitted is delimited by the danger it seeks to avert. (392 U.S. at pp. 25–26, 88 S.Ct. at 1868.) Here the sleeping bag was within defendant's grasp. It was something defendant would obviously have kept in his possession if given a ride. It was a soft object whose folds might well have concealed a readily accessible weapon. Under these circumstances the officer acted permissibly in patting down the bag.

Defendant's consent to reveal the contents of the bag validated the scope of the search which followed.

The order dismissing the information is reversed.

FOOTNOTES

1.  The knife was actually a combination utensil containing several knives, a fork and a spoon. This was the hard object which Gott had felt in the bag.

2.  Vehicle Code, section 21957: ‘No person shall stand in a roadway for the purpose of soliciting a ride from the driver of any vehicle.’

THE COURT.