People v. Smith

California Court of Appeal Jan 30, 1973 No. Crim. 10755Published

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Holding. The court held that the officers' detention and pat-down search of the appellant were justified by reasonable suspicion of criminal activity and officer safety, and that the appellant's motion to suppress evidence was procedurally improper because it was raised for the first time at trial without meeting the requirements of Penal Code section 1538.5, subdivision (h).

Issues

Whether the officers had sufficient justification to detain and frisk the appellant.
Whether a motion to suppress evidence may be raised for the first time at trial under Penal Code section 1538.5.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The initial approach for investigation here was justified, not only on the unarticulated basis that an apparent Vehicle Code violation was taking place, but on the grounds that there were specific, articulable facts indicating a rational suspicion”

“appellant’s motion to suppress was improperly made for the first time at trial, and although the trial court chose to entertain the motion over the prosecution’s objection on this basis, it was incumbent upon the court not to do so.”

[279]

Opinion

THE COURT.

Appellant was found guilty of possession of a concealable firearm by an ex-felon under section 12021 of the Penal Code. He now appeals from the judgment thereon, seeking a review of an order made with regard to his motion to suppress evidence at trial.

The circumstances related at trial indicate sufficient justification for the officers’ approaching appellant and patting him down for weapons. The officers had received a report of a possible burglary, which stated that two Negro males were walking down the street in a particular location, carrying a TV and stereo equipment. Having proceeded immediately to that location, which was only five or six blocks away from where they were, they saw an automobile double-parked in the traffic lane near a stop sign. There were four Negro males around the open trunk of the car, and upon approaching the car the officers saw what appeared to be stereo equipment protruding from the open trunk. As the officers approached, appellant backed away and appeared nervous, at which point he was patted down for weapons, and the revolver which was the subject of his motion was found.

The initial approach for investigation here was justified, not only on the unarticulated basis that an apparent Vehicle Code violation was taking place, but on the grounds that there were specific, articulable facts indicating a rational suspicion that the activity observed here was out of the ordinary and also related to crime.

(People

Henze

(1967) 253 Cal.App.2d 986, 988 [61 Cal.Rptr. 545].) It has been held reasonable to stop and detain a vehicle described in a police radio report as having just participated in a reported robbery.

(Ojeda

Superior Court

(1970) 12 Cal.App.3d 909, 918 [91 Cal.Rptr. 145].) Thus, it was reasonable to approach a vehicle stopped in violation of the law in the specific vicinity where a possible burglary had been reported almost immediately prior to this and items fitting the general description of those reportedly involved are seen in the vehicle.

People v. Smith

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THE COURT.

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