PEOPLE v. DALTON (1983)

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:  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 stop two months earlier 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.   Kelly's story seemed inconsistent to Officer Watson.

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?”   Although Kelly had originally told the officer that they had been walking from the apartment and had not driven a car, Kelly replied that the tools in the car were not stolen but belonged to him.

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.

Watson went immediately to the residence where Kelly's car was parked.   The front gate adjacent to the car was open, and a door at the side of the garage was also 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 arrested.   Approximately 10 minutes had elapsed from the time the officers stopped the suspects until Morrill identified the items in the vehicle.

Officer Watson acknowledged that when he initially 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.¹

 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, 1882–83, 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, 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 S.Ct. at 1881.)  “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 S.Ct. at 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 Kelly and appellant.   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 suspicious in light of the location of the car, the direction in which the suspects were walking and the location of 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 tools or other weapons which could be used to protect the burglar from attack by the property owner or others who might attempt to thwart the burglar's furtive 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 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 were justified in handcuffing the two suspects and placing them in the back of the patrol cars while they continued to investigate for a possible burglary in the neighborhood.   Although it could be argued that the temporary detention for questioning under Terry v. Ohio, supra, and its progeny continued for a few additional minutes while the officers verified that a burglary had taken place, it is apparent that the “functional equivalent” of a formal arrest took place which requires probable cause for the seizure of the persons of the suspects.  (Dunaway v. New York (1979) 442 U.S. 200, 213–216, 99 S.Ct. 2248, 2257–59, 60 L.Ed.2d 824.)

 Officer Watson informed the suspects that he was taking them “into custody” while he investigated the possibility that the tools in the vehicle had been stolen.   The suspects then were handcuffed and placed in separate patrol cars.   As explained in Dunaway v. New York, supra, police cannot justify a serious intrusion into the personal liberty of a citizen by converting an invalid arrest without probable cause into a lawful temporary investigative detention.   Absent probable cause, the seizure of the person is illegal, and all incriminating evidence produced thereby must be suppressed.   (See also Florida v. Royer (1983) 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229;  Brown v. Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416;  Davis v. Mississippi (1969) 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676;  Michigan v. Summers (1981) 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340;  but see People v. Campbell (1981) 118 Cal.App.3d 588, 595–596;  cf. United States v. Bautista (1982) 684 F.2d 1286;  United States v. Patterson (1981) 648 F.2d 625, 632–634.)

 Although the question is close indeed, we hold that the officers had probable cause to arrest both appellant and Kelly when they handcuffed them and placed them in the patrol cars.   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.)   While the officers did not actually know that a crime relating to the items in Kelly's car had been committed, they knew the following:  both Kelly and the car found at the scene were suspected of having been involved in a prior burglary;  two suspicious individuals generally matching the suspects' description had been seen in and about the car shortly before the officers arrived at 4 a.m.;   the items in the backseat of the car were of the type commonly stolen in burglaries;  when asked why his car was parked down the street with power tools in it, Kelly immediately replied that the tools were not stolen but belonged to him;  Kelly also told an obviously false story about why he and appellant were walking on the street at that early morning hour (there was a transparent inconsistency in Kelly's explanation as to why he and appellant were walking from appellant's apartment towards Kelly's car);  and finally, the officers found several items during the pat-down search that are commonly used as burglary tools.

Appellant cites People v. DeVaughn, supra, for the proposition that probable cause to arrest may not exist absent knowledge by the officers that a particular crime has been committed.  DeVaughn is distinguishable.   In that case the arresting officers were summoned to the scene by a patrol officer who had observed two men running towards his patrol car.   The suspects darted between houses when the officer backed his patrol car toward them.   The time was in the early afternoon—about 1 p.m.   When apprehended, the men were nervous and inconsistent in their responses to questioning.   The officers possessed general information of the high burglary rate in the neighborhood, but they had no information that a crime had recently occurred in the area.   The officers did not see commonly stolen property in the suspects' possession—actual or constructive—nor did they find burglar tools on the suspects' person.   Under these facts, the Supreme Court held that the arrest was illegal because of the absence of probable cause to believe the men had been engaged in any felonious activity.

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 without knowledge that a specific crime had been committed.   At 2:45 a.m., police 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.)

Although the officers in the present case did not have the strong evidence of flight and discarding of possible contraband present in Siegenthaler, they did have a combination of unusual circumstances which when taken together objectively enabled them to progress from a mere suspicion that criminal activity was afoot to an honest and strong suspicion that Kelly and appellant had committed a burglary.

Under all of the circumstances, the officers were justified in stopping appellant and Kelly for questioning, patting them down for weapons and arresting them on probable cause for the commission of a felony.

The judgment is affirmed.

FOOTNOTES

1.   Appellant sought to suppress (1) the evidence obtained as a result of the pat-down search, which consisted of tools commonly used in burglaries, and (2) Mr. Morrill's verification that four of the items in the back of Kelly's car had been stolen from his garage.

FRANSON, Acting Presiding Justice.

ANDREEN and MARTIN, JJ., concur.