People v. Amick

Opinion

Defendant and one Miracle were charged with two counts of burglary (§ 459, Pen. Code) and one count of receiving stolen property (§ 496, subd. 1, Pen. Code). The motion to suppress pursuant to section 1538.5, Penal Code, was denied except as to any statements made by defendant to officers after his arraignment. Thereafter defendant withdrew his plea of' not guilty and entered a plea of guilty to second degree burglary (count I); counts II and III were dismissed. He appeals from the judgment.

Appellant claims the television set should have been suppressed as evidence on the ground that it was the product of an unlawful detention, arrest, search and seizure. Around 10:20 p.m. in the City of Santa Maria, Officer Kapphahn, in plain clothes and driving a black vehicle equipped with siren and- red spotlight, received a radio report of a burglary at Vandenberg Inn and theft of a television set involving a dark colored stake-bed truck with two male occupants; within a half-hour he observed a dark stake-bed truck containing two men parked without lights in a closed service station; he drove past, then observed the truck, its lights out, pull out of the station behind him and not turn on its lights until it had gone a quarter of a block; his suspicions aroused, he turned onto a side street and turned around to follow the truck; approaching to within three car lengths of the truck he noticed several objects in plain sight on its bed—“a square box-type object” which “appeared to be the size and shape of a television set” covered by a blanket, and in open view three tires; the tires raised further suspicion because initially he had observed the truck with its lights out parked in a closed service station “just down from the tire rack” the front door of which was damaged and could not be secured, and at that time he thought it possible that these tires “could have come from the service station.” The officer followed the truók onto the freeway, radioed for backup assistance and turned on his red spotlight and flashed

Officers approached the truck on the driver’s side while Officer Kapphahn approached on the passenger side, and with gun drawn ordered Miracle (the driver) and defendant to get out; both men were given a pat-down. From outside, Officer Kapphahn looked into the cab for registration but found none; he then went around to the rear of the truck and standing on the pavement saw through the stakes and in plain sight on the open bed of the truck “several tires and the box-like object [he] had noticed earlier”; it was his “impression [the latter] was a television set”; he testified it was not a “hunch. I would say this was an opinion that I formed based on the information I had”; he then conducted a pat-down of the object from outside the truck without lifting the blanket; he felt a knob, and in his opinion the square object was a television set; both men were placed under arrest for receiving stolen property and resisting arrest, then taken to the station; the truck was towed to the station at the same time. A search of the truck with permission of Miracle and defendant revealed under the blanket a television set on top of which was stamped “DeVille Motel”; simultaneously other officers were taking a burglary report at the DeVille Motel in which a television set and blanket were reported missing.

Appellant contends that the stopping of the truck amounted to an illegal detention because the officer failed to articulate any unusual or suspicious circumstances; that even if the stop was lawful the subsequent pat-down of the square object through the blanket constituted an unlawful search because the stop could only be made for the purpose of interrogation and there was none; and that even if the pat-down was lawful his arrest was unlawful for lack of probable cause.

Inasmuch as the trial court, after holding an evidentiary hearing, has ruled on the motion to suppress, all factual conflicts must be resolved in a manner most favorable to the court’s disposition of the motion. Initially Officer Kapphahn sought to stop the truck to investigate because he had a reasonable suspicion that it was carrying a recently stolen television set

It is clearly apparent from the evidence that when the officer observed the truck with its lights out near a damaged tire rack late at night in a closed station then proceed onto the street with its lights still out he became suspicious; that his suspicion ripened into a “reasonable suspicion” when he approached the rear of the truck and observed the objects on its bed fully justifying the discharge of his investigative function; and that as the truck drove off upon arrival of the police unit and the pursuit of the truck continued, the “reasonable suspicion” that the tires had been stolen and the box-like object under the blanket was a stolen television set developed into probable cause. “Reasonable cause has been generally defined to be such a state of facts as 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 crime.” (People v. Ingle, 53 Cal.2d 407 , 412 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ]; People v. Fein, 4 Cal.3d 747 , 752 [ 94 Cal.Rptr. 607 , 484 P.2d 583 ]; People v. Terry, 2 Cal.3d 362 , 393 [ 85 Cal.Rptr. 409 , 466 P.2d 961 ]; People v. Ross, 67 Cal.2d 64 , 69-70 [ 60 Cal.Rptr. 254 , 429 P.2d 606 ].) No exact formula exists for determining probable cause and each case must be decided on the facts and circumstances known to the officer at the time he was required to act. (People v. Hogan, 71 Cal.2d 888 , 890 [ 80 Cal.Rptr. 28 , 457 P.2d 868 ]; People v. Ross, 67 Cal.2d 64 , 69-70 [ 60 Cal.Rptr. 254 , 429 P.2d 606 ]; People v. Talley, 65 Cal.2d 830 , 839 [ 56 Cal.Rptr. 492 , 423 P.2d 564 ].) “A mere hunch or a good faith belief on the part of the arresting officer is

Miracle and defendant were ordered from the cab at gun point and given a pat-down for weapons both of which were proper. (People v. Waters, 30 Cal.App.3d 354 , 360 [ 106 Cal.Rptr. 293 ], and cases cited therein.) The officer then walked to the rear of the truck and while standing on the pavement where he had a right to be (Harris v. United States, 390 U.S. 234 , 236 [ 19 L.Ed.2d 1067 , 1069, 88 S.Ct. 992 ]), there fell in plain sight a box-like object covered by a blanket which in his “opinion” was a television set, and three tires which he thought might be stolen; thus he reached between the stakes of the open bed and patted down the blanket covering the object feeling the knob; concluding under all of the circumstances that the object'was a television set and that it was stolen he arrested defendants for receiving stolen property. While a box-like object covered by a blanket is not such that mere observation of it would lead one to a reasonable conclusion that it was a television set, its shape together with the fact that it was covered, on a truck containing two men shortly after a burglary in which a television set was stolen and adjacent to three tires the officer believed might have been stolen from a service station, and the flight of defendants when the black and white patrol unit came into view, supported the officer’s opinion. The observation of the blanket-covered object and tires in plain sight does not constitute a search. (Lorenzana v. Superior Court, 9 Cal.3d 626 , 634 [ 108 Cal.Rptr. 585 , 511 P.2d 33 ].)

Under the foregoing does the pat-down of the square object through the blanket amount to a “search?” If it does, the officer’s action was justified at its inception and reasonably related in scope to the circumstances which justified the interference in the first place. Only by patting down the blanket could the officer confirm or discount his initial constitutionally reasonable conclusion that the object had evidentiary value (Guidi v. Superior Court, 10 Cal.3d 1 , 10, 18-19 [ 109 Cal.Rptr. 684 , 513 P.2d 908 ]) and make an adequate investigation. Moreover, if a search, it was of a most limited nature conducted with only minimal intrusion of privacy and restricted entirely to the object in question. Also any expectation by defendants of privacy as to the television set in plain sight even though a blanket was thrown over it on the open bed of a truck being driven around the public streets would have been unreasonable and no constitutionally protected right of privacy was violated when Officer Kapphahn looked through the stakes and touched the object. (People v. Bradley, 1 Cal.3d 80 , 85 [ 81 Cal.Rptr. 457 , 468 P.2d 129 ].)

In People v. Laursen, 8 Cal.3d 192 [ 104 Cal.Rptr. 425 , 501 P.2d 1145 ],

Having probable cause to search the open bed of the truck at the time it was forced to stop, it was not unreasonable to transport it to the station to do so. (Chambers v. Maroney, 399 U.S. 42 [ 26 L.Ed.2d 419 , 90 S.Ct. 1975 ]; Peoples. Laursen, 8 Cal.3d 192 , 202 [ 104 Cal.Rptr. 425 , 501 P.2d 1145 ]; Mestas v. Superior Court, 7 Cal.3d 537 , 541 fn. 3 [ 102 Cal.Rptr. 729 , 498 P.2d 977 ].) Miracle or defendant or others acting in their behalf could have returned to retrieve or remove the evidence; the television set could well have been stolen from the open truck had it been left there late at night and at that time obviously it was not convenient for the officers to remove the television set from the truck and take it to the station. The ultimate search of the bed of the truck was lawful inasmuch as it was conducted with the consent of both defendant and Miracle.

The judgment is affirmed.

Thompson, J., and Hanson, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied March 13, 1974.