People v. Thomas

California Court of Appeal Mar 24, 1971 No. Crim. No. 18814Published

Before: Jefferson

AI Brief

AI-generated · verify before citing

Holding. The court held that the officer's detention and subsequent pat-down search of the defendant were illegal because they were based on subjective suspicion rather than objective, articulable facts justifying the intrusion. Consequently, the evidence obtained from the search was properly suppressed and the information dismissed.

Issues

Whether the officer had sufficient objective cause to conduct a pat-down search of the defendant.
Whether the initial detention of the defendant was lawful under the circumstances.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“It seems clear to us that Officer Diton’s initial detention was illegal. Therefore the subsequent pat-down and the discovery of the .25 caliber automatic in defendant’s pants pocket was also illegal.”

“I do not understand that the law authorizes an officer to pat down an individual on a mere subjective suspicion that he may carry a gun. There must be some overt, articulate physical facts to justify a pat-down detention.”

Opinion

JEFFERSON, Acting P. J. This is an appeal by the People, pursuant to Penal Code section 1238, subdivision (7) from an order of the superior court granting the defendant and respondent’s motions to suppress pursuant to Penal Code section 1538.5 and for dismissal.

Defendant was charged by an information with having been in possession and control of an automatic pistol capable of being concealed upon the person and having a barrel of less than 12 inches in length, after having previously been convicted of the felony of burglary, in violation of the Dangerous Weapons’ Control Law. (Pen. Code, § 12021.) Defendant’s preliminary examination was conducted on April 6, 1970, after which his motion pursuant to Penal Code section 1538.5 was heard on June 18, 1970.

Robert W. Diton was called as a witness and testified. Both sides rested. Defendant’s motion to suppress the evidence was granted and the information was dismissed and the defendant was discharged.

Robert W. Diton, a Los Angeles police officer, was on duty March 11, 1970, when he received a radio call to “go to 4214 South Avalon, man with gun.” The officer answered the call and went to the address and spoke to one Tenolia Pilot, who resided at the above address. She informed the officer that defendant had been at her residence earlier with a gun and [234]that he was waving it at her and threatening to shoot her. Defendant was not present at the Pilot residence when the officer took the statement.

On March 23, 1970, Officer Diton and his partner were on duty in uniform and operating a regulation black and white vehicle. They were on patrol duty traveling northbound on Avalon Boulevard. As they were passing 4214 South Avalon Boulevard Officer Diton observed defendant walking on the sidewalk parallel with the fence which enclosed the Pilot residence. Defendant was from 10 to 15 feet from the front gate, which was the entrance-way to the Pilot residence. Officer Diton recognized defendant, whom he had seen several times before and knew by sight and by name. He stopped the patrol vehicle, alighted and approached defendant, who by now had his hand on the front gate and was pushing it open.

The officer called the defendant by his name and asked him “How are you this evening?” to which defendant replied “Just fine.” The officer then asked defendant if he had any weapon on him and defendant made some kind of reply—the exact words the officer did not. remember. The officer then conducted a cursory search of defendant’s person. The officer felt a small hard object in defendant’s right rear pants pocket during the “pat-down.” The officer removed the object which was a .25 caliber automatic. Defendant was then arrested and transported to the police station.

People v. Thomas

AI Brief

More from California Court of Appeal

Related research

AI Brief