People v. Hunt

HUFSTEDLER, J.

Defendant Hunt appeals from a conviction of violating section 12021 of the Penal Code (former felon’s possession of eoncealable weapon) upon an information charging him with that offense and setting forth his alleged prior felony convictions. Hunt pleaded not guilty, denied the prior felonies

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and waived jury trial. He was found guilty. His motion for a new trial was denied, and he was sentenced to the county jail for the time he had already served. The sole question presented upon appeal is the legality of the search and seizure without a warrant which produced the only evidence of possession subsequently introduced, over objection, at the time of trial.

Summary of the Evidence

On May 8, 1965, at 8 o ’clock in the morning Deputy Sheriff Hipp, while sitting in his radio ear, saw two men, Plunt and

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Porter, standing and talking with one another in the alley-bordering a service station. The two men walked over to the service station attendant, Ebbanezer, then walked away from the attendant in opposite directions from each other. Hipp approached Ebbanezer and asked him if he knew the two men and what they were doing there. Ebbanezer replied that he did not know them, and “I was just going to call the station because they had been hanging around acting suspicious.” This colloquy constitutes the entire conversation between Hipp and Ebbanezer. Ebbanezer did not testify at the trial. Thompson, another employee of the service station, arrived on the scene in time to see Hunt and Porter parting from each other and walking away from the station. Thompson “immediately . . . thought something was wrong. We had had previous robberies there.” Thompson called out to Hunt asking him to come back because he wanted to talk to him. Hunt kept on walking. Hipp radioed Officer Chausse, who was driving another patrol car, and told him “to stop a male negro that was walking northbound in the alley towards 71st Street from Florence, that he was a suspicious person.” While Hipp stopped Porter, Chausse drove his radio car down the alley to stop Hunt. When Chausse saw Hunt in the alley, he ordered him to come to the car. Hunt ignored him and kept on walking. Chausse alighted from the car and again ordered Hunt to come to him. Hunt obeyed the second command. Chausse patted Hunt down for weapons and felt what appeared to be a pistol inside his waistband on the right side. Chausse seized from Hunt a two-inch, blue steel, Smith & Wesson .38 revolver. Six rounds of cartridges were in the gun at the time of the seizure. Chausse “further shook him down” and found five more rounds of ammunition in Hunt’s right front pocket. Chausse placed Hunt under arrest and drove him to meet Hipp.