Barber v. Superior Court

[328]

Opinion

BROWN (Gerald), P. J.

George Washington Barber and his wife Linda Marie Barber are charged with possessing narcotics (Health & Saf. Code, § 11500), possessing narcotics for sale (Health & Saf. Code, § 11530.5), both while armed with a deadly weapon (Pen. Code, § 12022), with possessing marijuana (Health & Saf. Code, § 11530), possessing a sap or blackjack (Pen. Code, § 12020), carrying a loaded firearm in a vehicle (Pen. Code, § 12031, subd. (a)), and carrying a concealable weapon in a vehicle (Pen. Code, § 12025, subd. (a)).

Their motions under Penal Code sections 995 and 1538.5 were denied. This petition, brought under Penal Code section 1538.5, seeks mandate to compel suppression of evidence found in a search of their automobile on the ground the search occurred during an unlawful detention. Their contention is meritorious. The petition should be granted.

On September 12, 1972, about 2:45 a.m., while on routine patrol, Escondido Officer Santibanez saw a car parked on the dirt shoulder of Via Rancho Parkway east of Highway 395. Santibanez’s routine procedure was to “check” vehicles in the area like that, his purpose being to check on the occupants’ well-being to see “if he could aid in their assistance in any way.”

After stopping his patrol vehicle behind the parked car, Santibanez walked up to Barber’s automobile. Although he saw all persons in the car were sleeping and were in no obvious need of assistance, he nevertheless rapped on the left front window. George Barber rolled it down. The officer asked if everything was all right; Barber said it was. Nothing indicated otherwise. Santibanez then probed further: he asked to see some identification. Barber showed him his social security card. Santibanez asked if Barber had any identification with his birth-date, preferably a driver’s license. Barber did not produce other identification, but said he thought his driver’s license was in some clothing he had in the trunk. Barber went to the trunk, checked some clothing, but came up with no identification.

Other officers arrived and began talking to Barber. Santibanez radioed for warrant checks. The other officers left. Santibanez told Barber he was running a check, and while it was being run Barber could wait in his car.