People v. Rios

Opinion

ELKINGTON, J.

This appeal by defendant Rios, followed his jury waiver, a finding of his guilt of violating Penal Code section 12025 and an order granting him probation.

The only issue presented at the trial was the validity of a- police search which disclosed his possession of a revolver in an automobile. The facts are not in substantial dispute.

Two officers were patrolling their beat in a high-crime area in a marked police car. Their vehicle made a routine right turn at an intersection, and as it did so, the vehicle’s headlights flashed across an automobile which was legally parked at a curb. In the light, the officers observed the other car’s two occupants “duck down” out of sight. The intersection was sufficiently lighted to enable one in the vicinity to see the police car’s official markings. From the two men’s conduct the officers entertained a suspicion that a robbery or burglary might be impending. When the officers centered their spotlight on the other vehicle, the two men in it returned to a normal sitting position. The police car was then stopped and the officers walked to the other car for the purpose of questioning its occupants and examining their identification.

The automobile was occupied by defendant Rios and another. As the officers approached, Rios got out from his side of the car without being asked, and upon request of one of the officers his driver’s license was produced. Questioning by the officer led to Rios’ statements that he was waiting to go to the nearby “Tropicana Lounge,” and that he preferred to park where he was instead of a nearby shopping center parking lot. Rios was generally cooperative, and the officer did not recall whether he was subjected to a pat search.

[1011]

Meanwhile the other officer walked to the front passenger side of the car where the second man had been sitting. As he did so, he directed his lighted flashlight toward the vehicle’s interior, for the purpose of a protective search for weapons; the flashlight did not protrude into the car. On the unoccupied driver’s side of the front seat he noticed “the butt of what appeared to be a handgun protruding from under the front left seat of the vehicle”; he could “see the butt of the gun and a portion of the hammer.” The weapon was seized and the car’s two occupants were arrested. Rios, having previously been three times convicted of felonies, was later charged with the Penal Code section 12025 violation.