People v. Tarkington

California Court of Appeal May 28, 1969 No. Crim. 14727Published

Before: Thompson

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Holding. The court held that the seizure of the firearm was lawful either as a search incident to a valid arrest for a misdemeanor committed in the officers' presence or as a reasonable search for weapons conducted for officer safety during an investigation.

Issues

Whether the observation of a handgun outline under a suspect's shirt provided probable cause for an arrest for carrying a concealed weapon.
Whether the officers' warrantless search of the appellant was reasonable under the Fourth Amendment for the purpose of self-protection during an investigation.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“We conclude that the weapon which constitutes the critical item of evidence against appellant was legally seized and properly admitted in evidence.”

“For the purpose of probable cause at least, the existence of a license which validates the possession of what would otherwise be contraband need not be disproved by the investigating officer.”

“The officers in the interest of their own protection were entitled to make a cursory search for weapons as a prelude to-the questioning.”

THOMPSON, J.

Appellant, after a waiver of jury trial and submission of the matter upon the transcript of his preliminary hearing and a stipulation of counsel, was convicted of a violation of Penal Code section 12021, possession of a concealable firearm by a person previously convicted of a felony. This appeal does not contest the sufficiency of the evidence upon which the conviction is based, but attacks the validity of the search which disclosed the proscribed weapon.

Facts

On June 8, 1967, at about 9 p.m., two Los Angeles County deputy sheriffs entered a Compton Avenue tavern on a routine “bar check.” One of them observed what appeared to be the outline of a handgun under appellant’s shirt. The officers then asked appellant to step outside. As the appellant and the two officers walked toward the door, one of the officers reached around appellant and felt an object which seemed to be a gun. The officer then removed a .32 caliber automatic from the person of appellant. Appellant was arrested and, having previously been convicted of a felony, was charged with the violation of Penal Code section 12021 of which he was subsequently convicted.

[468]

Proceobdings in Trial Court

At trial, appellant objected to the introduction in evidence of the .32 caliber automatic upon the ground that it was illegally obtained and, thus, preserved for appeal the question now before us.

Legality of Search

■We conclude that the weapon which constitutes the critical item of evidence against appellant was legally seized and properly admitted in evidence. That conclusion may be sustained on either of two bases: (1) the weapon was seized incident to the arrest of appellant for an apparent misdemeanor being committed in the presence of the arresting officers; or (2) the seizure of the pistol resulted from a reasonable search for. weapons conducted by officers incident to their right of self-protection in carrying out their duty of investigation of possible criminal behavior.

Probable Cause to Arrest.

People v. Tarkington

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THOMPSON, J.

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