*1 Dist., Apr. A045534. First Div. Three. 1990.] [No. PEOPLE,
THE Plaintiff and Respondent, TOBIN, WAYNE Defendant and Appellant.
Counsel Jr., Defender, James, William T. Egan, Deputy
Charles H. Public Defender, and Appellant. Public for Defendant General, B. Chief Iglehart, Richard Attorney John K. Van de Kamp, General, Attorney H. Assistant Attorney Sugiyama, Assistant John Wilkinson, General, Attorneys Kaye Deputy Martin and Herbert F. S. General, for Defendant and Respondent.
Opinion 1538.5 BARRY-DEAL, J. his Penal section motion denial of Code After evidence, Wayne guilty transportation Tobin pleaded to suppress 28, 1989, Code, 11352.) On the court (Health & Saf. March cocaine. *3 on for probation of sentence and imposition placed appellant suspended violated He that a warrantless search of his years. person three contends the Fourth and Fourteenth Amend to under right privacy constitutional him the not to be searched. give ments because the officers did not option judgment. and affirm the We find that the officers acted properly The Facts1 in Hakeem Shabazz2 Day 7:30 on New Year’s Officer p.m. At about 680 for a and a trainee officer a northbound vehicle on stopped in the passenger evidence of was seated registration. Appellant false It developed vehicle. was seated in the front. passenger rear of the Another only suspended vehicle had a the driver had registration, that the false license, Shabazz and the had license. Officer passenger driver’s front seat no license, because knew did appellant did not ask about day an earlier in the was taken not have one from encounter when Welfare and section county to Institutions Code hospital, pursuant narcotics. for overdose of possible driver, and the vehicle a licensed Because none of was occupants the fact that it deemed unsafe and to leave the vehicle light improper was of the Shabazz to have car freeway, on the shoulder Officer determined men that this would impounded. towed and He three be explained done. them Shabazz call one of their friends to pick up.
Officer offered to in Pittsburg Contact was made with someone through police dispatcher immediately. arranged who them but not It was agreed pick up Denny’s freeway men would meet their ride at restaurant off the just three away. at an exit about a mile Officer Shabazz believed that three-quarters of for, Denny’s, extremely be the men to to walk to would unsafe for attempt reasons, they freeway would have to cross two lanes among over Also, did freeway on is Officer Shabazz walking illegal, traffic. so Furthermore, the men bad intend to let do so. other passenger following transcript preliminary hearing facts are and other evidence taken from hearing appellant’s suppression adduced at the motion. spelled reporter’s transcript Penal Code 2 Thewitness’s name is “Akeem” in the sec hearing preliminary hearing transcript. and tion 1538.5 “Hakeem” in the incoherent, or to be be intoxicated either to appearing shape physical nervous from a condition. suffering be allowed they would not all three men
Officer Shabazz explained happy would be and that officers to walk on understand, objected. no one Denny’s. Everyone appeared them to they were to the three men that because Shabazz then explained Officer vehicle, would unmarked uncaged, going transported and other The driver everything.” for pat-searched “weapons before pat-searched car were alighted willingly from the passenger Officer Shabazz was partic- car. about whom entering squad Appellant, day, raised no he had been “5150’d” earlier ularly concerned because “ ‘Okay, you want to Officer Shabazz then said to do objection. appellant, ’’ *4 any for you weapons.’ Appellant the vehicle? I’ll search step pat out of want- was that impression appellant out of the vehicle. The officer’s stepped submitting to the search. If appellant ed to ride car and squad him would not have had trans- declined the Officer Shabazz pat-search, had in the sergeant’s uncaged vehicle. ported jacket pocket weapons,
When Officer Shabazz outer for patted appellant’s by he needle. Shabazz had remove hypodermic appellant was stuck Officer him it. illegally the needle from his and then arrested for pocket possessing Code, netted 24.4 (Bus. 4149.) & Prof. A search of appellant’s person $400 in of cocaine and cash. grams over
Discussion erred in denying suppression contends that the trial court Appellant First, review well defined. is motion. The standard of is two-step of trial find facts the evidence before function court to based on are findings it. the trial appeal uphold supported On we court’s whether, Second, this to decide substantial evidence. it is role of court facts, law given the the search is a of on question was reasonable. This (1981) v. Leyba which we exercise our 29 independent judgment. (People P.2d Cal.Rptr. Cal.3d 596-597 629 242 Cal.Rptr. v. Scott 16 Cal.3d
Relying People case was 327], pat-search 546 P.2d contends that the that he had a because had been informed improper ride That case some factual thereby refuse the avoid the search. has similarities the case at bench. Scott, three-year-old spotted highway defendant and his son were of 101
patrol standing officers on a traffic island at the intersection Scott, (lead v. 16 Cal.3d at of pp. opn. and an off-ramp. (People supra, Richardson, Mosk, J.), (dis. J.).) urinating, of Both opn. appeared himself or his and defendant was found to be too intoxicated to care for identification, taking child. Defendant had no but stated he was child defendant, in San Francisco. Rather than the officers arresting its mother volunteered to drive the to their destination. The child was pair placed had down for the car. Defendant was told that he patrol patted arms, An officer defendant to raise his which he protection. officers’ told did, objection. without either consent or As he lifted his arms expressing and a became visible. pocket partially opened baggie marijuana Mosk, Richardson, (lead J.).) 245-246 The J.), (dis. opn. opn. (d., trial that defendant did at p. court found not consent search. 249.) majority Supreme special Court held that circumstances alone justify
did not and that because defendant was not under patdown arrest, Terry had to be tested under the standards of Ohio patdown 889, 909, namely, 392 U.S. L.Ed.2d 88 S.Ct. 1868], “ officer had to have ‘reason to believe that he with an dealing [or she] [was] armed and individual ....’” 16 Cal.3d dangerous (People The court the dilemma inherent in recognized holding, its objectives set conflict between two laudable of accommodat up apparent *5 safety the state’s interest in the of officers who volunteer to ing give rides such cases and the individual’s to be from unreasonable inva right secure sions of The court said that in order for searches to be privacy. patdown circumstances, valid under these or similar officers must first inform the ride, it, they they individuals that have a to refuse the accept they subjected 250.) will search for patdown weapons. defendant Because Scott was not with this and did not presented option search, (Ibid.) consent to evidence should have been suppressed. We believe that the Scott decision is on facts distinguishable its from case at bench and In is not sentence of the controlling. opening duty (16 stated that the officer had “no the defendant. opinion transport” Here, contrast, by way Cal.3d at duty to existed. denying motion to the trial that the appellant’s suppress, court stated public did, safety the officer to do what he and that the search in question was reasonable and appropriate. ruling This of the trial court contains both findings factual conclusions. We hold that the factual are legal findings conclusions, them, by the evidence. supported As to the we with legal agree and affirm the v. Leyba, 596-597.) order. 29 Cal.3d at (People pp.
Here correctly the officer had a The officer transport appellant. drive; determined that he any could not of the three men to one of permit so, were licensed. and none of them unable do them appeared physically vehicle, had to towed. Therefore, registered, not properly which tow truck. It is men transported to be could not leave The officer to handle are not equipped tow trucks knowledge generally common been able to have unlikely that the driver would three it is passengers, Also, if the friend. even with their take them to their rendezvous he have might tow truck driver to transport, left the men for the could have determine that not the three to driver had he first frisked endangered that duty is particularly apparent armed and This dangerous. were not drug problem. had a serious knowledge of the officer’s light and his have the officer might exposed Failure take this precaution (Van Alstyne, liability truck driver were harmed. if the tow employer (Cont.Ed.Bar 1980) Liability Dangerous Practice Cal. Government Tort 3.18-3.24, 210-222.) of Public Property, Conditions §§ Furthermore, on New p.m. we notice the fact that at 7:30 judicial take Code, (h), 459.) subd. Day (Evid. parked Year’s it was dark. §§ cars. passing vehicle was at risk of hit being shoulder v. (1978) Cal.Rptr. Willis Gordon Cal.3d 629 (See, e.g., But, no seriously, guaranty P.2d even more the officers had 794].) freeway, thereby walking endangering would not on the attempt himself, just are few but to avoid him. These only swerving motorists only injury led not many might proper- possibilities ty government liability. loss but also to testified, freeway is walking illegal.
As the officer on the dangerous Code, see, (Veh. 21960; Fry Young Cal.App.2d e.g., Cal.Rptr. 62]; Rangel Cal.App.2d 347-350 Badolato P.2d While the cited section contains an exception 256-257 code nearest for and of disabled vehicles to walk to the exit drivers permits *6 order summon is limited to “that side help, exception disabled,” not have applied which the vehicle is and therefore would upon case, in the men have had to lanes where officer testified the would cross ride. heavy freeway get judicial of traffic in order to to their We take notice heavily busy undoubtedly the 680 is travelled of fact and 452, Code, (Evid. (g), at the time in subd. question. §§ Thus, the Although from Scott. distinguish physi the facts of this case Court, the by place cal is not in detail the where setting Supreme described were as a “traffic island defendant Scott and his child found is described Scott, v. City (People formed the Marin 101.” by off-ramp Highway of duty at Because found no p. 245.) Supreme 16 Cal.3d the Court supra, there, Scott, unlike appel we conclude that the defendant must bench, in easy way get lant at had an off the island without the case freeway. trial court found himself and others on Here the endangering which indicated to it acted and we hold that properly, facts that the officer Shabazz those facts on Officer to remove imposed undeniably from a position dangerous which was themselves companions and to other members of the public. addition,
In under decisions the trial court relied its ruling, on which 242, and which were decided v. 16 Cal.3d People subsequent supra, a duty safety finding protect public patdown renders New York v. transportation Quarles (1984) valid. In U.S. 550, 2626], L.Ed.2d 104 S.Ct. armed police rapist, chased [81 him, was; him caught and handcuffed and asked where the he gun replied ” “ (Id., 651-652.) that it was ‘over there.’ The United States Supreme pp. Court where claim held that there was no that defendant’s statements were resist, conduct which overcame his will “on these compelled police ‘public safety’ facts there is a that Miranda exception requirement before a warnings given may answers be admitted into evi- suspect’s dence, the availability and that of that does exception depend upon individual motivation of the officers involved.” 655-656 pp. [81 557]; L.Ed.2d at see v. United States 436 U.S. pp. Scott 168, 177, L.Ed.2d 98 S.Ct. non ... existence vel 1717] [“the [statutory or turns on an objective violation assessment of constitutional] light officer’s actions of the facts him confronting circumstances time.”].) at the [or her]
The court
which
explained
circumstances
would excuse compliance
(Miranda
with
Miranda.
Arizona
641 existed, finding. The evidence supports such circumstances transport need to recognized have long of this courts state appellate a justifies pat- exigency vehicle in itself is a person police 839, 848 (1977) v. Mack 66 Cal.App.3d for weapons. (People [136 search 538, 528, 13 545 (1975) v. Brisendine Cal.3d 283], citing Cal.Rptr. People 315, in the transportation the case of 531 P.2d Cal.Rptr. [119 1099] [“In vehicle, itself necessity proximity provide . . . the close will police . v. People . protective pat-down person. needed basis for .”] 929, 109, 538 237].) P.2d Cal.Rptr. 14 Cal.3d 938 (1975) Norman [123 public which existed and the need for exigency We conclude that the minimally intrusive safety conducting patdown the officer’s supported v. 12 (See (1974) Hill clothing. generally, People search of outer appellant’s 731, 393, another 1], 528 P.2d overruled on Cal.Rptr. Cal.3d 746 [117 889, 896, fn. 5 DeVaughn (1977) v. 18 Cal.3d ground People [135 Scott, 786, 872].) supra, 558 P.2d We do not believe People Cal.Rptr. otherwise, 242, been so might 16 3d but to the extent that it Cal. holds by Quarles safety” rulings. “public has been limited interpreted, (New not suppressed. The evidence was discovered need properly Quarles, U.S. 659 at No error p. 559].) York v. 467 L.Ed.2d [81 occurred. judgment is affirmed. J.,
Merrill, concurred. view, WHITE, In case is my P. J. dissent. controlled respectfully 39, v. Scott Cal.3d 242 546 P.2d Stare (1976) Cal.Rptr. People 327]. Sales, Court (Auto Equity Superior that we it. Inc. requires decisis follow P.2d v. Brown 937]; People 57 Cal.2d Cal.Rptr. Cal.App.3d Cal.Rptr. “a police the California Court considered whether Supreme who a lift in his car can give private patrol officer citizen proposes lawfully subject him to search for when pat-down weapons a nonconsensual arrest and the has no him individual is not under officer 244- (16 and no reason to believe he is armed and Cal.3d dangerous.” may pat- that an not conduct a added.) italics The court held Nevertheless, the court down search in these circumstances. at p. out of police, acting compassion, that cases will arise where the recognized absolutely so. In not to do may although required offer rides to citizens safety officers order to the state’s interest in “accommodate duty, and the individual’s their give who volunteer rides the court of his privacy,” secure from unreasonable invasions *8 mandated the officer first the following procedure: must inform “[T]he individual that he has a to the will right accepts refuse ride but he it he be subjected to a for Such a will pat-down weapons. search brief admonition safety both the the protect officer’s individual’s to decide for he willing himself whether is to a undergo search order to pat-down obtain the offered of added.) assistance the at italics police.” because, The majority contend that Scott is unlike the distinguishable case, duty officers Officer Shabazz had an affirmative transport to ante, freeway, (maj. off the at opn. pp. 638-639.) Although agree that the Scott not procedure “duty need be followed when the have a police (16 the searched transport” person 250), Cal.3d I do not duty believe that the in this case the by is of the Scott type contemplated majority.
The Scott of majority explicitly duty did the a specify type police officer must under in order to be excused from the complying with view, my admonition outlined in that case. In procedure duty might (1) one of three a a statutory duty to an types: transport person (e.g., where a driver a stops for traffic violation and the driver is unable to Code, 40302, a produce (Veh. driver’s license or identification subd. Scott, (a)); People a supra, p. 248); duty Cal.3d tort of due care by owed the officer to the transported third or person persons; kind “general protective by of duties” the police of discussed the dissent.1 view,
In my it is clear need not police give Scott admonition prior pat-searching statutory whom have a person duty to trans- On the port. necessarily other end of the the Scott spectrum, majority rejected the Scott dissent’s assertion that no admonition is where as their police transport person merely part of “general protective 249-250, (Scott, supra, duties.” at pp. 256-257.) Consequently, “general duty” is protective not sufficient to excuse compliance with Scott admo- procedure. nition by left unanswered Scott is question whether 1 arguing that the officer in Scott did in fact have a defendant in case, general protective part Scott dissent observed: “The police duties of are a vital activity, police of increasing emphasis expansion po and there has been need for of beyond lice apprehension Recognition role that of mere . . . suspects. and arrest of criminal by protective played police role to be has been extended the American Bar Asso Justice, Relating in the Compila ciation ABA Standards to the Administration of Criminal (1974), ‘Major tion outlining Responsibilities agen Current of Police’: ‘. . . [M]ost currently given responsibility, (iii) cies are . . design or default: . aid individuals who danger (v) vehicles; (vi) physical are in . people harm:. . to facilitate the movement (xi) themselves; provide assist those cannot . . . who care for other services on 256, (dis. emergency (People opn. basis.’ 16 Cal.3d at Rich [Citations.]” ardson, J.).)
643 they transport admonition when from the giving required excused are police due care. duty a tort of transportation required such is because person that Officer any which statute do not to majority point failure to freeway. his Consequently, the off transport appellant Shabazz he had a theory the be excused on cannot the Scott admonition give Further, Officer I believe duty although appellant. to statutory fell with- off the properly to transport appellant decision Shabazz’s my enough, not is police,” duties in the “general protective I view, Consequently, with the Scott admonition. compliance excuse to Shabazz was excused found that Officer majority implicitly believe the of due care to duty he owed a tort with Scott because from complying I in this join on 680. cannot Highway and the other drivers reasoning. rule, who duty the aid of another. A person
“As one has to come to no to take merely liable in tort for failure created a is not peril has not there is some relation protect or another unless affirmative action assist Torts, 4 (Rest.2d 314; duty act. them which rise gives between ship § Torts, (Williams Witkin, (8th 2821.)” Summary ed.) of Cal. Law § 233, 664 P.2d (1983) 34 Cal.3d 23 Cal Rptr. v. State California However, is the aid of another he once undertakes to come to one (a) and is liable duty “under a to exercise due care performance harm, . . (b) the risk harm failure exercise such care increases of. upon undertaking.” (Ibid.; other’s reliance is suffered because Torts, officers who Rest.2d These rules general apply 3; (34 Cal.3d at fn. to members of public. render assistance 1070, 1076 City Cal.App.3d Sullivan Sacramento Cal.Rptr. 844].)
Had stranded on roadside there Officer Shabazz come upon that, have had some he would not question special relationship, is no absent however, Here, can be duty argued come to aid. appellant’s (and peril appellant peril facing appellant Officer Shabazz “created” 680) he Highway stopped appellant’s drivers on when presented Thus, I conclude that majority car on can see where could highway. and, to other possibly, Officer Shabazz owed a of due care to appellant walking by appellant who might endangered drivers on freeway. along view, here, however, my majority. part
It is with company he created rely very peril Officer Shabazz should not permitted warrant, cause, or without a searching appellant probable as excuse for (SeeShuey Court any Superior circumstances. exigent independent emergency Cal.Rptr. [police-created 540-541 Cal.App.3d 452] LaFave, justify did person home]; warrantless seizure of Search *10 short, (2d and Seizure In 1987) 6.5(b), ed. Officer Shabazz should p. not be himself into an permitted bootstrap Scott admoni- exception tion. by
Nor am
the
persuaded
majority’s
argument
alternative
that Scott has
been
by subsequent
safety” rulings,
“limited”
ante
“public
(maj.
at
opn.
p.
only
641.) The
relevant
arguably
subsequent
majority
decision
cite is
550,
New
v. Quarles (1984)
York
Moreover, even if safety” I were to that a agree “public could exception context, I in this that apply cannot in case agree this was appellant to ride in required car his will for the against sake of “public safety.”
The facts of this are by case made far clearer referring map to a area where occurred. of the area stop Consequently, subject has map been attached dissent A.3 to this as appendix
The record
that the
appellant
indicates
vehicle
was
riding
pulled
was
the side of the
Highway
northbound lanes of
680
“just
location
north”
of the Monument Boulevard
and
interchange
south
and
Highway
Highway
Officer Shabazz testified
split.
it was
three-
approximately
of a
quarters
mile to a mile to the next exit (Willow Pass
via
Road)
High-
24,
way
680,
and that it
about
via
was
of a mile
but
three-quarters
1602,
2 Miranda Arizona
It should be noted suffering or intoxicated another Although passenger appeared vehicle. condition, was under then indicated nothing a nervous from drugs incapacitated. influence of otherwise *11 (a) that “the driver provides subdivision Vehicle Code section may freeway walk a disabled vehicle stopped passengers direction, exit, upon in either on that side of nearest Thus, violating . . .” the law or (Italics added.) without vehicle is disabled. traffic, could have walked back Monument crossing lanes of appellant exit, three- approximately off at that a distance of gotten Boulevard may walk have some risk Although of a mile. quarters presented Indeed, justify pat-search. this risk did not the nonconsensual appellant, had appellant much when he stated that Officer Shabazz admitted as “I have him to be believe I would had transported refused searched don’t sergeant’s vehicle.” short, not believe the risk created to walk allowing appellant do outweighed appel- the short distance back to the Monument Boulevard exit privacy. lant’s Fourth Amendment free of invasions of here mandated explicit option should given me, to a ride with or walk the three Scott: Either submit pat-search Here, likely of mile back it is to Monument Boulevard. quarters have welcomed the walk. opportunity would reasons, For the I dissent. foregoing
Appendix A