People v. Whitted

[571]Opinion

DRAPER, P. J. Convicted of two robberies, defendant appeals, asserting admission of evidence illegally seized. Testimony on defendant’s motion to suppress evidence (Pen. Code, § 1538.5) showed that' Officer Lopez, on patrol at 1:58 a.m., stopped defendant’s car because hie knew a traffic warrant for defendant’s arrest was outstanding. The officer confirmed that the warrant was still in effect. As he approached defendant’s car, defendant alighted. The officer testified that he saw Whitted reach into his left jacket pocket and remove a package of cigarettes and a plastic bag containing green vegetable matter. He removed a cigarette and quickly pushed the cigarette package and the plastic bag into his pocket, but not before the officer had seen the bag and its contents, which he believed to be marijuana. At Officer Lopez’ direction, his partner removed the plastic bag from defendant’s pocket and concluded that it did contain marijuana. Whitted was arrested for possession of marijuana. Officer Lopez testified that Whitted asked him to turn off the lights on the latter’s car. While standing outside the car, but using a flashlight, the officer saw a hemostat hanging on a knob on the dashboard with a partially burned marijuana cigarette in its pincer end. He also saw two paper bags in plain sight. One was tom and’ revealed beer cans. The other was partially open at the top, revealing loose coins. Earlier that night, the officer had heard a police radio report of a burglary nearby in which many coins were taken. On the rear seat, Officer Lopez saw a Band-Aid can. He had heard reports of several “Band-Aid” robberies, in which the robber wore a strip of Band-Aid from the crown to the tip of his nose. The officer then looked into the glove compartment and saw a stack of folded currency. Beneath the seat, he found a wool cap and a blue jacket, the latter containing a loaded pistol in a pocket. The gun, cap, jacket, currency, Band-Aid tin, and the paper bag of coins were the subjects of the motion to suppress. All were admitted in evidence at the trial. At trial, as at a lineup conducted after his arrest, Whitted was identified as the robber by the victims.

Appellant argues that the initial stop or detention was unlawful because the warrant did not provide for arrest in the nighttime. This contention, however, overlooks the 1969 amendment to Penal Code section 840 (Stats. 1969, ch. 528, p. 1143) which completely recast the section providing for service of arrest warrants. Under the amended section, “[a]n arrest for the commission of a misdemeanor or an infraction cannot be made between the hours of 10 o’clock p.m. of any day and 7 o’clock a.m. of the succeeding day, unless ... (2) the arrest is