Opinion
THOMPSON, J.*
At the jurisdictional hearing, appellant admitted the Vehicle Code violations and the burglary, but denied the allegations of possession of marijuana and codeine contending that the drugs had been seized by means of an illegal search and seizure. The court overruled appellant’s objections to the admissibility of the drugs and found the allegations of the drug violations to be true. Appellant was found to be a person described in section 602 of the Welfare and Institutions Code.
[260] At the dispositional hearing the court considered a social study prepared by the juvenile court probation officer wherein it was recommended that appellant be removed from the custody of his parents and committed to a forestry camp in Stanislaus County and upon successful completion of the camp program to be released to the custody of his parents under specified terms of probation. Appellant’s counsel recommended a local jail sentence. The juvenile court declined to follow either recommendation and ordered appellant committed to the Youth Authority.
Facts
At about 1:40 p.m. on November 25, 1974, Jack Smith, a Modesto police officer on duty in his patrol car in Modesto, noticed a 1967 black Cadillac convertible proceeding at a speed which appeared to be 5 or 10 miles over the 25-mile-per-hour speed limit. While following the Cadillac, Officer Smith noticed that neither the brake lights nor the turn signal of the Cadillac appeared to be working and he stopped the vehicle for that reason. Officer Smith asked the driver of the vehicle, appellant, for identification, but appellant was unable to produce either a driver’s license or any other type of written identification. Therefore, Officer Smith placed appellant, whom he had discovered to be only 17 years old, under arrest for failure to have a driver’s license in his possession and for being unable to identify himself with proper identification.
Officer Smith, who had noticed a “light odor of marijuana” emanating from the vehicle while questioning and arresting appellant, patted appellant down for weapons or contraband before placing him in the patrol car. During this patdown, he felt “two bulky objects” in the front portion of each of the boots which appellant was wearing. Thinking these could be some sort of weapon, the officer reached into the boots and removed two plastic baggies of what appeared to be marijuana from each boot. He then re-arrested appellant and made a further search of appellant’s person for weapons or further contraband. He discovered a fifth plastic baggie, which also appeared to contain marijuana, in appellant’s front pants pocket.
Appellant was handcuffed and placed in the rear seat of the patrol car. Officer Smith opened the front door of appellant’s Cadillac, whereupon he noticed an “extremely strong” odor of fresh marijuana. He also saw what appeared to be burnt and unburnt marijuana seeds on the front seat, floorboard, and back seat of the vehicle.
[261] Because of the manner in which the convertible was constructed, Officer Smith could tell that the odor was emanating from the trunk of the Cadillac. He was able to partially view the trunk compartment through the “well” into which the convertible top retracted from the back seat of the vehicle; however he could not observe any of the contents in the trunk because he did not have his flashlight with him. Officer Smith opened the trunk with the key from the ignition; he found a set of scales, and a bag containing a “brick” of what appeared to be marijuana, packaged in a form for sale. Also, pushed down in the crack of the rear seat, the police discovered some wrapped tablets and white powder subsequently identified as codeine.
The “brick” and the contents of the five baggies found on appellant’s person, were determined to be marijuana.
Legality of the Search
Appellant contends that the patdown search of his person and the subsequent search of his vehicle were illegal and that the contraband seized as a result of the search should have been suppressed.
When the driver of an automobile fails to present his driver’s license or other satisfactory evidence of his identity for examination by an officer, the law requires that he be arrested and taken without unnecessary delay before a magistrate. (Veh. Code, § 40302, subd. (a).) When it becomes necessary for an officer to confine a traffic law violator within his police vehicle the officer is entitled to conduct a patdown search for weapons. (People v. Brisendine (1975) 13 Cal.3d 528, 537-538 [119 Cal.Rptr. 315, 531 P.2d 1099]; see also People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 214 [101 Cal.Rptr. 837, 496 P.2d 1205].) In such a situation the increased danger to the officer warrants the patdown, and there is no need to independently establish a factual basis that the arrestee is armed prior to the patdown.
The sole justification for such a search, however, is “the protection of the police officer . . . , and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of the police officer.” (Terry v. Ohio (1968) 392 U.S. 1, 29-30 [20 L.Ed.2d 889, 910-911, 88 S.Ct. 1868, 1883-1885]; People v. Brisendine, supra, 13 Cal.3d at p. 542.) To lawfully exceed the scope of a patdown the officer must be able to point to specific and articulable facts reasonably supporting his suspicion that [262] the suspect is armed. (People v. Collins (1970) 1 Cal.3d 658, 662 [83 Cal.Rptr. 179, 463 P.2d 403]; People v. Brisendine, supra, 13 Cal.3d at p. 542.) For example, in People v. Mosher (1969) 1 Cal.3d 379 [82 Cal.Rptr. 379, 461 P.2d 659], the patdown of a burglary suspect revealed a “sharp object like a knife blade.” On further investigation the object was found to be a watch band belonging to a murder victim. In upholding the search, the Supreme Court carefully distinguished the feel of a “knife blade” from a “box of matches, a plastic pouch, a pack of cigarettes, a wrapped sandwich, a container of pills, a wallet, coins, folded papers, and many other small items . . . [which] do not ordinarily feel like weapons.” (1 Cal.3d at p. 394.)
Brisendine, supra, however, makes the following observation: “In the ordinary pat-down circumstances the clothing of the person is seldom, if ever, so resistant or resilient as to prevent the police from determining whether there are weapons present. But if in some unique fact pattern such were the case, we would likely be persuaded that a limited further intrusion was necessary. To do otherwise would be to make the unreasonable demand that an officer allow a potentially armed suspect to enter his patrol car. We noted above that even in the ordinarily innocuous confrontation between an officer and a traffic arrestee who is to be transported before a magistrate, there is the possibility of violence.” (13 Cal.3d at pp. 542-543.)
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Opinion
THOMPSON, J.*
At the jurisdictional hearing, appellant admitted the Vehicle Code violations and the burglary, but denied the allegations of possession of marijuana and codeine contending that the drugs had been seized by means of an illegal search and seizure. The court overruled appellant’s objections to the admissibility of the drugs and found the allegations of the drug violations to be true. Appellant was found to be a person described in section 602 of the Welfare and Institutions Code.
[260] At the dispositional hearing the court considered a social study prepared by the juvenile court probation officer wherein it was recommended that appellant be removed from the custody of his parents and committed to a forestry camp in Stanislaus County and upon successful completion of the camp program to be released to the custody of his parents under specified terms of probation. Appellant’s counsel recommended a local jail sentence. The juvenile court declined to follow either recommendation and ordered appellant committed to the Youth Authority.
Facts
At about 1:40 p.m. on November 25, 1974, Jack Smith, a Modesto police officer on duty in his patrol car in Modesto, noticed a 1967 black Cadillac convertible proceeding at a speed which appeared to be 5 or 10 miles over the 25-mile-per-hour speed limit. While following the Cadillac, Officer Smith noticed that neither the brake lights nor the turn signal of the Cadillac appeared to be working and he stopped the vehicle for that reason. Officer Smith asked the driver of the vehicle, appellant, for identification, but appellant was unable to produce either a driver’s license or any other type of written identification. Therefore, Officer Smith placed appellant, whom he had discovered to be only 17 years old, under arrest for failure to have a driver’s license in his possession and for being unable to identify himself with proper identification.
Officer Smith, who had noticed a “light odor of marijuana” emanating from the vehicle while questioning and arresting appellant, patted appellant down for weapons or contraband before placing him in the patrol car. During this patdown, he felt “two bulky objects” in the front portion of each of the boots which appellant was wearing. Thinking these could be some sort of weapon, the officer reached into the boots and removed two plastic baggies of what appeared to be marijuana from each boot. He then re-arrested appellant and made a further search of appellant’s person for weapons or further contraband. He discovered a fifth plastic baggie, which also appeared to contain marijuana, in appellant’s front pants pocket.
Appellant was handcuffed and placed in the rear seat of the patrol car. Officer Smith opened the front door of appellant’s Cadillac, whereupon he noticed an “extremely strong” odor of fresh marijuana. He also saw what appeared to be burnt and unburnt marijuana seeds on the front seat, floorboard, and back seat of the vehicle.
[261] Because of the manner in which the convertible was constructed, Officer Smith could tell that the odor was emanating from the trunk of the Cadillac. He was able to partially view the trunk compartment through the “well” into which the convertible top retracted from the back seat of the vehicle; however he could not observe any of the contents in the trunk because he did not have his flashlight with him. Officer Smith opened the trunk with the key from the ignition; he found a set of scales, and a bag containing a “brick” of what appeared to be marijuana, packaged in a form for sale. Also, pushed down in the crack of the rear seat, the police discovered some wrapped tablets and white powder subsequently identified as codeine.
The “brick” and the contents of the five baggies found on appellant’s person, were determined to be marijuana.
Legality of the Search
Appellant contends that the patdown search of his person and the subsequent search of his vehicle were illegal and that the contraband seized as a result of the search should have been suppressed.
When the driver of an automobile fails to present his driver’s license or other satisfactory evidence of his identity for examination by an officer, the law requires that he be arrested and taken without unnecessary delay before a magistrate. (Veh. Code, § 40302, subd. (a).) When it becomes necessary for an officer to confine a traffic law violator within his police vehicle the officer is entitled to conduct a patdown search for weapons. (People v. Brisendine (1975) 13 Cal.3d 528, 537-538 [119 Cal.Rptr. 315, 531 P.2d 1099]; see also People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 214 [101 Cal.Rptr. 837, 496 P.2d 1205].) In such a situation the increased danger to the officer warrants the patdown, and there is no need to independently establish a factual basis that the arrestee is armed prior to the patdown.
The sole justification for such a search, however, is “the protection of the police officer . . . , and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of the police officer.” (Terry v. Ohio (1968) 392 U.S. 1, 29-30 [20 L.Ed.2d 889, 910-911, 88 S.Ct. 1868, 1883-1885]; People v. Brisendine, supra, 13 Cal.3d at p. 542.) To lawfully exceed the scope of a patdown the officer must be able to point to specific and articulable facts reasonably supporting his suspicion that [262] the suspect is armed. (People v. Collins (1970) 1 Cal.3d 658, 662 [83 Cal.Rptr. 179, 463 P.2d 403]; People v. Brisendine, supra, 13 Cal.3d at p. 542.) For example, in People v. Mosher (1969) 1 Cal.3d 379 [82 Cal.Rptr. 379, 461 P.2d 659], the patdown of a burglary suspect revealed a “sharp object like a knife blade.” On further investigation the object was found to be a watch band belonging to a murder victim. In upholding the search, the Supreme Court carefully distinguished the feel of a “knife blade” from a “box of matches, a plastic pouch, a pack of cigarettes, a wrapped sandwich, a container of pills, a wallet, coins, folded papers, and many other small items . . . [which] do not ordinarily feel like weapons.” (1 Cal.3d at p. 394.)
Brisendine, supra, however, makes the following observation: “In the ordinary pat-down circumstances the clothing of the person is seldom, if ever, so resistant or resilient as to prevent the police from determining whether there are weapons present. But if in some unique fact pattern such were the case, we would likely be persuaded that a limited further intrusion was necessary. To do otherwise would be to make the unreasonable demand that an officer allow a potentially armed suspect to enter his patrol car. We noted above that even in the ordinarily innocuous confrontation between an officer and a traffic arrestee who is to be transported before a magistrate, there is the possibility of violence.” (13 Cal.3d at pp. 542-543.)
The record shows that when conducting the patdown Officer Smith felt two “bulky” objects near the ankle area in each of appellant’s zip-up boots. No testimony was given as to the weight or consistency of the objects while they were in appellant’s boots. Although the individual baggies are not heavy or hard, the inference from the testimony is that they were placed one on top of the other inside the boot thereby giving the impression of a larger object. We judicially note that boots are less resilient than other items of clothing. The only logical reason a person would place items in boots is for concealment; it is not unusual for weapons to be concealed there. Considering all of these circumstances, we conclude that Officer Smith showed specific and articulable facts reasonably supporting his suspicion that appellant might be armed. The seizure of the marijuana in appellant’s boots was lawful.
After finding the marijuana in appellant’s boots, Officer Smith testified that when he opened the door of appellant’s car he noticed an “extremely strong” odor of fresh marijuana in the vehicle which he could tell was emanating from the trunk because of the opening in the well [263] between the trunk and passenger section of the car. The odor of marijuana in a vehicle is sufficient to give probable cause to search the vehicle for contraband. (People v. Cook (1975) 13 Cal.3d 663, 668-669 [119 Cal.Rptr. 500, 532 P.2d 148]; People v. Gale (1973) 9 Cal.3d 788, 794 [108 Cal.Rptr. 852, 511 P.2d 1204]; People v. Fitzpatrick (1970) 3 Cal.App.3d 824, 825-826 [84 Cal.Rptr. 78].)
People v. Gregg (1974) 43 Cal.App.3d 137 [117 Cal.Rptr. 496], relied on by appellant, is distinguishable. In Gregg, the arresting officer had no reason to suspect the contraband was located in the trunk compartment other than the discovery of a few marijuana seeds in the interior of the car and the odor inside the car of recently burned marijuana. Here, because of the strong odor of fresh marijuana coming from the trunk Officer Smith had probable cause to believe that fresh marijuana was in the trunk. The search of appellant’s car and its trunk was lawful, and the contraband discovered pursuant to that search was properly admitted into evidence.
Validity of Commitment to Youth Authority
Willy L. contends that the juvenile court abused its discretion in committing him to the California Youth Authority. We do not agree.
As the probation officer observed, “the Juvenile Court must take strong action” because Willy L., although a “mentally bright, sophisticated youth,” was involved in a “serious pattern of delinquent behavior.” It affirmatively appears that the juvenile judge entered his order only after much deliberation and deep concern. The pattern of criminality exhibited by appellant was not trivial. The burglary at issue involved the theft from a private home of liquor worth approximately $1,265. Similarly, the possession for sale, at age 17 years, of a “brick”.of marijuana, along with scales necessary for weighing and measuring it, was also a most serious offense, not to mention the minor’s possession of codeine. We believe that a minor who participates in a large scale burglary and uses the proceeds from such a burglary to set himself up in drug dealing is so criminally oriented as to make it highly unlikely that he will be further corrupted by incarceration in the California Youth Authority.
As we interpret In re Aline D. (1975) 14 Cal.3d 557 [121 Cal.Rptr. 816, 536 P.2d 65], it stands only for the proposition that before a California Youth Authority commitment will be upheld upon review, it must appear from the record that the committing court was fully satisfied as to the probability that the ward would benefit from such a commitment. And though in In re Aline D., supra, the referee made a [264] finding that the ward would probably benefit from a commitment to California Youth Authority the entire record is replete with expressed doubts as to the suitability of such a commitment. In the instant case the record contains no such expressions of doubt and ample evidence to support a commitment to California Youth Authority as a proper exercise of the court’s discretion.
We find these notable distinctions between the present case and In re Aline D., supra. In Aline D. the sole thrust of all of the evidence both from court personnel and court-appointed psychiatrists and a psychologist was that a California Youth Authority commitment for Aline D. would be contraindicated and the referee in his ultimate decision to send Aline D. to California Youth Authority was based not upon the suitability of such an order but upon the unavailability of any other resource.
In Aline D. we have a minor who is possibly a borderline mentally retarded child. The court in Aline D. in fact suggests that if all resources for handling juvenile offenders are unsuitable the juvenile court proceedings should be dismissed (p. 566). We infer that the court intended to indicate that Aline D. should then be processed under proceedings for the mentally disordered.
Aline D.’s anti-social conduct appears to be impulsive and the product of poor peer associations.
Willy L. on the other hand is a calculating sophisticated youth who is described in the probation report as a leader of a delinquent peer group with a reputation as a “big drug dealer”. (Ironically, appellant’s counsel argued on his motion to suppress that the police made their initial stop of appellant’s vehicle because they knew him to be a drug dealer.)
And while it is true that Willy L. although no stranger to the juvenile delinquency proceedings prior to the present offenses, i.e., two petty thefts and possession of marijuana, which charges were informally processed without the filing of a petition, the fact that Willy L. was first brought to a dispositional hearing on the present offenses is not determinative. These offenses were all the more serious because each element was carefully planned. The large theft of liquor, $1,265 worth, provided the funds to secure a substantial supply of marijuana. The scales were strong proof of an intent to deal on a large scale.
[265] The parents of Willy L. recognized that he was beyond their control.
We find nothing in Aline D. which emasculates the juvenile court’s discretion to send a severely delinquent youth to California Youth Authority if it appears to the court that such disposition is most likely to eifect the rehabilitation of the juvenile. As we have noted Willy L.’s own counsel recognized that his client should be placed in a custodial situation, in his opinion the juvenile section of the county jail.
Nor can we find any legal, let alone rational, basis for lending significant weight to the recommendation of the probation officer’s recommendation that Willy L. be sent to a forestry camp. Given Willy L.’s determination to corrupt other youths by peddling marijuana on a large scale the inevitably difficult problems of supervision in such a facility as a forestry camp would tend to offer Willy L. opportunities to continue his “salesmanship” of controlled substances in relative security.
The proper rule for application here is stated in In re Clarence B. (1974) 37 Cal.App.3d 676, 682 [112 Cal.Rptr. 474]: “It is well settled in California that when a public offense has been committed by a juvenile, certification of the juvenile to the CYA is within the sound discretion of the committing court, be it the juvenile court (Welf. & Inst. Code, §§ 731, 1736) or the superior court (Welf. & Inst. Code, § 1731.5.) [Citations.] The decision of the juvenile or superior court may be reversed on appeal only upon a showing that the court abused its discretion in committing the minor to the CYA. [Citations.] A reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court, and such findings will not be disturbed on appeal when there is substantial evidence to support them. [Citation.]”
The dissenting opinion raises an issue not raised or argued by either party relating to the requirements of Welfare and Institutions Code section 726. Contrary to our colleague’s contention the record herein demonstrates compliance with that section. The section requires one of three alternative findings before a ward may be taken from the physical custody of a parent—an issue not raised or argued by either party.
One of the requisite findings required under said section 726, subdivision (c), is that the welfare of the minor requires that his custody be taken from his parent or guardian. We note also that section 502 of the Welfare and Institutions Code provides further in part that such [266] removal can be made . . when his [the minor’s] welfare or safety and protection of the public cannot be adequately safeguarded without removal.”
Such requisite finding may be inferred from the transcript in lieu of entry in the minute order. (In re Hartman (1949) 93 Cal.App.2d 801, 807 [210 P.2d 53].) However, reliance need not be placed upon that rule as the court made the necessary finding in the written order itself.
After a lengthy dispositional hearing and consideration of the “dispositional social study,” the court’s minute order stated: “The Court makes its findings pursuant to the provisions of Section 727c [j/c] Juvenile Court Law.” Further, as stated in our colleague’s dissent, the juvenile judge verbally stated: “Pursuant to Section 726 of the Welfare and Institution^] Code the minor is ordered—is removed from the custody of his parents.” The dispositional social study, which is part of the record relied upon by the court, stated: “It is further recommended pursuant to Section 726c of the Welfare and Institutions Code that it be found to be in the best interest, welfare, and protection of Willy [L.] that he be removed from the custody of his parents....”
Thus the necessary finding is clearly present.
We hold that the court did not abuse its discretion in committing Willy L. to the California Youth Authority.
The judgment is affirmed.
Brown (G. A.), P. J., concurred..