People v. Superior Court (Wells)

612 P.2d 962, 27 Cal. 3d 670, 165 Cal. Rptr. 872, 1980 Cal. LEXIS 191

• Court: California Supreme Court
• Decided: July 10, 1980
• Docket: L.A. 31232
• Status: Published

Opinions

Opinion

CLARK, J.

The People petition for writ of mandate (Pen. Code, § 1538.5, subd. (o))¹ seeking review of respondent court’s order suppressing evidence in a murder prosecution (§ 187) as the fruit of an illegal arrest. In granting the suppression motion, the trial judge expressly resolved “all issues of credibility and fact in favor of the People.” Therefore, as the judge stated: “The only issue is one of law as to whether or not the facts as set forth by the officer constitute probable cause to arrest the defendant.” As the arrest was lawful, the writ shall issue.

Responding one evening to a police radio report concerning a gunshot victim, an officer discovered a dead man lying on the ground. A bloodstain “mushroomed” around what appeared to be a bullet wound in the victim’s chest.

Defendant was standing on the sidewalk directly across the street from the body. He was “all by himself.” No one else was in the vicinity. He looked in the officer’s direction, turned around and walked away.

After conducting a brief fruitless search for witnesses, the officer examined the victim more carefully and recognized him as Gaylord Brown. The officer knew defendant had a motive to murder Brown. He recalled he had arrested defendant for possession of dangerous drugs a month earlier and that defendant, claiming the drugs were not his but Brown’s, complained his parole would be revoked if he were convicted “for Gaylord’s dope.” The officer had testified at defendant’s preliminary hearing in that case the day before. The officer also knew defendant had a propensity to violence. He recalled that defendant had been convicted of “attempting to kill a pregnant lady during a robbery” and had been arrested for other robberies.

Suspecting defendant of having murdered Brown, the officer found him walking across a nearby intersection and detained him. The officer testified: “I conducted a patdown search of the defendant for offensive weapons, and during that search I observed what appeared to be bloodstains on the inner left portion of his left shoe. I also observed bloodstains on the left thigh portion of his trousers.” The bloodstains on defendant’s shoe were “quite small.” The officer then arrested defendant for Brown’s murder. While handcuffing him, the officer noticed a bandaid on the little finger of defendant’s left hand, a slight laceration on the top of that hand and blood on the palm of one of his hands, which one was not specified. Approximately 20 minutes passed from the time the officer discovered the victim’s body until he arrested defendant.

The challenged evidence—defendant’s clothing and property found on his person, a sample of his blood, the results of a gunshot residue test performed upon him and statements made by him—was suppressed on the ground it was the fruit of an illegal arrest.

Defendant contends, first, that the officer’s observation of bloodstains on defendant’s clothing while patting him down for weapons may not be considered in determining whether the officer had probable cause to arrest him because this observation was itself the fruit of an illegal pat-down. Defendant may not now be heard to complain that the officer did not have reason to conduct the pat-down. He is precluded from raising this issue on appeal by his failure to make a timely and specific objection on this ground in the trial court (People v. Rogers (1978) 21 Cal.3d 542, 547-548 [146 Cal.Rptr. 732, 579 P.2d 1048]; People v. Talley (1967) 65 Cal.2d 830, 837-838 [56 Cal.Rptr. 492, 423 P.2d 564].)²

We now turn to the question whether, taking the bloodstains into consideration, the officer had probable cause to arrest defendant.

“Cause for arrest exists when the facts known to the arresting officer ‘would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.’ [Citations.]” (People v. Harris (1975) 15 Cal.3d 384, 389 [124 CaLRptr. 536, 540 P.2d 632].)

The facts known to the officer when he arrested defendant were: (1) A bloodstain “mushroomed” from what appeared to be a bullet wound in Brown’s chest. (2) Defendant was standing directly across the street from Brown’s body, “all by himself,” when the officer arrived; no one else was in the immediate vicinity. (3) Defendant had a motive to murder Brown. (4) Defendant had a propensity to violence. (5) Defendant had bloodstains on his clothing. These facts clearly “would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion” that defendant had murdered Brown.³

Accordingly, the writ of mandate shall issue as prayed.⁴

Tobriner, J., Mosk, J., Richardson, J., and Manuel, J., concurred.

1 Statutory references are to sections of the Penal Code unless otherwise noted.

2 Moreover, the contention clearly lacks merit. “When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” (Terry v. Ohio (1968) 392 U.S. 1, 24 [20 L.Ed.2d 889, 908, 88 S.Ct. 1868].) As the officer reasonably suspected defendant of having shot Brown to death only moments before, he clearly had reason to believe defendant was “armed and presently dangerous.” The pat-down was, accordingly, entirely appropriate.

3 Defendant points out that the bandaid and laceration the officer subsequently noticed on defendant’s left hand indicated the bloodstains on his clothing might have an innocent explanation. However, “[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (In re Tony C. (1978) 21 Cal.3d 888, 894 [148 Cal.Rptr. 366, 582 P.2d 957].)

4 Justice Newman’s concurring opinion inappropriately attacks his colleagues for their effort to correct what we unanimously agree to be a legal wrong. His attack is particularly unjustified in view of the circumstances in which this cause comes to us. After the Court of Appeal first denied a petition for writ of mandate, this court— including Justice Newman—granted a petition for hearing, transferred the cause to ourselves but retransferred it to the Court of Appeal with instructions to issue its alternative writ. The Court of Appeal was thus required to determine the matter but—as it had on the prior occasion—concluded the petition lacked merit. Only then did we grant the resulting petition for hearing to finally resolve the matter.