Amacher v. Superior Court

California Court of Appeal Oct 23, 1969 No. Civ. 12357Published

Before: Regan

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Holding. While a police officer may conduct a self-protective frisk for weapons based on reasonable suspicion, the officer exceeds the permissible scope of that search by opening a cigarette container once it is clear the object is not a weapon.

Issues

Whether a police officer was justified in conducting a self-protective frisk of the petitioner.
Whether the officer exceeded the permissible scope of a self-protective frisk by opening a cigarette container found on the petitioner's person.

Disposition. remanded

Quotations verified verbatim against the opinion

“At that point the scope of the search was no longer reasonably related to the circumstances which justified the frisk.”

“Let a writ of prohibition issue pursuant to Penal Code section 1538.5 to suppress the evidence found in the cigarette container.”

Opinion

REGAN, J.

Petitioner seeks a writ of prohibition after the denial of his motions under Penal Code sections 995 (to set aside the information) and 1538.5 (to suppress evidence). He is being tried for possession of marijuana. (Health & Saf. Code § 1T530.)

Facts

In the evening of March 12, 1969, Officer Bowman and three other members of the Woodland Police Department went to the home of one Karen Sogge to execute an arrest warrant for her. The warrant was either for possession of marijuana, or for being in a place where marijuana was used. When she answered the door and identified herself, Officer Bowman informed her that he had a warrant for her arrest, and the officers stepped in and handed her the warrant.

Officer Bowman saw petitioner sitting on a couch in the front room as he entered. Bowman asked if he was “carrying,” and he replied, “No.” Bowman then asked petitioner to stand up for a pat frisk. Bowman testified he was concerned for the safety of himself and the others in the room, that petitioner had a reputation for being hostile to police officers, and that he habitually pats down such hostile people when he encounters them at night. Petitioner also had a reputation of using marijauna. Bowman admitted that he saw no quick movements by petitioner, that he saw nothing suspicious, that he did not smell marijuana, and that he had no knowledge of petitioner’s having caused physical harm to anyone, or of his ever carrying a gun.

In frisking petitioner, Bowman felt a hard object in a front jacket pocket. Bowman removed it and found it to be a closed flip-top Marlboro cigarette container. Bowman opened the box because “[i]t is a known fact that anyone that is carrying will have a tendency to carry their marijuana cigarettes concealed within a regular box of commercial cigarettes.” Inside

[153]

the box were two hand-rolled cigarettes, stipulated for the preliminary examination to contain useable quantities of marijuana.

When an officer has occasion to question or confront a citizen he may under certain circumstances make a self-protective frisk of the citizen even though he does not have probable cause to arrest. That is the rule in California (see

Amacher v. Superior Court

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REGAN, J.

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