People v. Robinson

California Court of Appeal May 17, 1976 No. Crim. 27240Published

Before: Ashby

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Holding. The court held that the trial court erred in dismissing the charges based on the invalidity of the local ordinance and remanded the case for further factual findings regarding whether the defendant's flight was a product of unlawful police conduct.

Issues

Whether the trial court erred in dismissing charges based on the erroneous belief that the local ordinance was preempted by state law.
Whether the defendant's flight and disposal of a weapon were products of unlawful police conduct justifying the suppression of evidence.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The trial court granted the motion on the ground that the original detention was unlawful because the local ordinance against consumption of alcoholic beverages on the public highway was invalid, having been preempted by state law.”

“A suspect has no right to flee from lawful police conduct on speculation that the officers might harbor an intent to engage in unlawful conduct.”

“The order of dismissal is reversed and the cause remanded for further proceedings consistent with this opinion.”

Opinion

ASHBY, J.

This is a People’s appeal pursuant to Penal Code section 1238, subdivision (a)(7), from an order dismissing the charges in a

[365]

prosecution for violation of Penal Code section 12021 (possession of concealable weapon by ex-felon) after the granting of defendant’s motion to suppress evidence.

At 3:40 p.m. on December 30, 1974, Deputy Sheriff Patrick Walsh observed defendant and two other male Negroes in an alley to the rear of 5950 Central. Two of them were carrying cups with a yellowish liquid, and the third was carrying a bottle in a paper sack. Deputy Walsh and his partner stopped their patrol car to warn the three of Los Angeles County Ordinance No. 4027, which prohibits the consumption of alcoholic beverages on public highways. He requested that the three men turn and place their hands on the hood of the patrol vehicle. Instead of doing so, defendant walked away at a rapid pace, and Deputy Walsh followed him. Defendant turned a corner then threw a pistol into a trash can. The pistol, which Deputy Walsh recovered, was the subject of the motion to suppress evidence.

The trial court granted the motion on the ground that the original detention was unlawful because the local ordinance against consumption of alcoholic beverages on the public highway was invalid, having been preempted by state law. Defendant now concedes the People’s contention that this ruling was erroneous and that the local ordinance is not preempted by state law.

(People

Butler, 252

Cal.App.2d Supp. 1053, 1055-1058 [59 Cal.Rptr. 924]; also see

People

Gibbs,

16 Cal.App.3d 758, 762-764 [94 Cal.Rptr. 458].)

Defendant contends, however, that the order should be upheld on a different theoiy, raised below but not relied upon by the trial court. He argues that when Deputy Walsh requested the three persons to place their hands on the police vehicle, he intended thereafter to conduct a pat-down search for weapons. Although Deputy Walsh testified to reasons why he felt a pat-down search for weapons would have been appropriate,

People v. Robinson

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ASHBY, J.

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