People v. Adam

Opinion

The People appeal from an order setting aside an information charging defendant with possession of marijuana. (Health & Saf. Code, § 11530.)

The only witness who testified at defendant’s preliminary hearing was Officer Cron of the Los Angeles Police Department. On March 15, 1968, at 1:30 p.m. Cron and another officer, wearing plain clothes, were in an unmarked police vehicle. Cron saw defendant driving a 1956 Buick, the left windwing of which was broken. Defendant’s physical description was “similar” to that of a burglary suspect who on an unspecified earlier date had stolen a 1964 or 1965-Volkswagen from a garage in the “immediate” area. The description he had of the suspect was: “a male Mexican, 23 to 26, five ten, 160 pounds, black hair.” Defendant was southbound on Silverlake Boulevard. From time to time the officer saw him look to the rear toward the police vehicle. Defendant’s car was swerving from side to side without, however, crossing the center line. After following defendant for about five blocks, the officers stopped him. Cron approached defendant who was still sitting in his car. They had a short conversation. Defendant produced a valid driver’s license and a registration for the car which corresponded with the name and address on the license. Defendant’s pupils

The facts of Terry should be briefly recalled. An officer had observed two men making an “elaborately casual and oft-repeated reconnaissance” (Terry v. Ohio, supra, 392 U.S. at p. 6 [20 L.Ed.2d at p. 897]) of a store window. He reasonably concluded that they were “casing a job, a stickup,” and that “they may have a gun.” He then confronted them and patted down the outside of Terry’s clothing. He felt a pistol in a pocket of the overcoat which he later removed. Characterizing even such a casual frisk as a “serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, . . . not to be taken lightly,” holding that Terry had been “seized” and that the gun had been found as a result of a “search,” the court nevertheless found no violation of the Fourth Amendment under the circumstances of the case. Having in mind that it was the officer’s proper function to investigate the conduct he had observed, that he had a legitimate interest in making sure “that the person with whom he [was] dealing [was] not armed with a weapon that could unexpectedly and fatally be used against him” (Terry v. Ohio, supra, 392 U.S. at p. 23 [20 L.Ed.2d at p. 907]), that society cannot ask police officers to take unnecessary risks and that American criminals have a long tradition of armed violence, the court concluded that a limited protective search of the outer clothing of a person whose conduct is being investigated, does not do violence to the Fourth Amendment.

The People interpret Terry as if it stood for the proposition that simply because an officer may temporarily “seize” a suspect it follows automatically that he may frisk'him for weapons. The Terry court went out of its way to negative such a notion. It said emphatically that “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Terry v. Ohio, supra, 392 U.S. at p. 21 [20 L.Ed.2d at p. 906]. Italics added.) In a footnote appended to that statement the court observes: “This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence. (Citations omitted.)” (Terry v. Ohio, supra, 392 U.S. at p. 21, fn. 18 [20 L.Ed.2d at p. 905].) The text goes on to say: “. . . And in making that assessment it is imperative that the facts be judged against an objective standard-, would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken

That this was not idle.talk became apparent in Sibron v. New York, 392 U.S. 40 [ 20 L.Ed.2d 917 , 88 S.Ct. 1889 ], filed together with Terry. We pass over the details which led to the confrontation between an officer and Sibron in the course of which the officer seized heroin from Sibron’s person. The New York courts had apparently affirmed Sibron’s conviction by applying a New York statute which permitted police officers to stop suspects in certain cases and to search them for weapons if they reasonably suspected that they were in danger of “life or limb.” The Supreme Court refused to rule on the constitutionality of the statute and reversed on basic Fourth Amendment principles. However, in adverting to the basis for New York’s affirmance of the conviction it said: “Although the Court of Appeals of New York wrote no opinion in this case, it seems to have viewed the search here as a self-protective search for weapons and to have affirmed on the basis of § 180-a, which authorizes such a search when the officer ‘reasonably suspects that he is in danger of life or limb.’ The Court of Appeals has, at any rate, justified searches during field interrogation on the ground that ‘[t]he answer to the question propounded by the policemen may be a bullet; in any case the exposure to danger could be very great.’ People v. Rivera, 14 N.Y.2d 441 , 446 [ 201 N.E.2d 32 , 35, 252 N.Y.S.2d 458 , 463] (1964), cert, denied, 379 U.S. 978 [ 13 L.Ed.2d 568 , 85 S.Ct. 679 ] (1965). But the application of this reasoning to the facts of this case proves too much. The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. (Terry v. Ohio, supra. Patrolman Martin’s testi

Applying this teaching to the case at bar we must hold that the trial court’s ruling was correct. The record does not contain one single fact from which, by the application of an objective standard, it could be concluded that the officer reasonably thought he was in danger. Even if we interpret his statement that he was looking for weapons as implying that he did so because he thought that this particular confrontation posed personal danger, rather than that he did so because it was routine procedure, there are no “specific and articulable facts,” from which a court can infer that his fear was rational. We have a daylight encounter, between a young man, possibly under the influence of something, alone and apparently cooperative, with two police officers who were presumably armed. If, on these bare facts, the police can undertake the “serious intrusion upon the sanctity of a person” whose activities they have decided to investigate, the safeguards written into Terry are meaningless.

The order is affirmed.

Stephens, J., and Aiso, J., concurred.

A petition for a rehearing was denied December 3, 1969.