People v. Tobin

219 Cal. App. 3d 634, 269 Cal. Rptr. 81, 1990 Cal. App. LEXIS 371

• Court: California Court of Appeal
• Decided: April 12, 1990
• Docket: A045534
• Status: Published

Opinions

Opinion

BARRY-DEAL, J.

After denial of his Penal Code section 1538.5 motion to suppress evidence, Wayne Tobin pleaded guilty to transportation of cocaine. (Health & Saf. Code, § 11352.) On March 28, 1989, the court suspended imposition of sentence and placed appellant on probation for three years. He contends that a warrantless search of his person violated his constitutional right to privacy under the Fourth and Fourteenth Amendments because the officers did not give him the option not to be searched. We find that the officers acted properly and affirm the judgment.

The Facts¹

At about 7:30 p.m. on New Year’s Day in 1988, Officer Hakeem Shabazz² and a trainee officer stopped a northbound vehicle on Highway 680 for a false evidence of registration. Appellant was a passenger seated in the right rear of the vehicle. Another passenger was seated in the front. It developed that the vehicle had a false registration, the driver had only a suspended driver’s license, and the front seat passenger had no license. Officer Shabazz did not ask appellant about a license, because the officer knew appellant did not have one from an encounter earlier in the day when appellant was taken to the county hospital, pursuant to Welfare and Institutions Code section 5150, for a possible overdose of narcotics.

Because none of the occupants of the vehicle was a licensed driver, and in light of the fact that it was deemed unsafe and improper to leave the vehicle on the shoulder of the freeway, Officer Shabazz determined to have the car towed and impounded. He explained to the three men that this would be done.

Officer Shabazz offered to call one of their friends to pick them up. Contact was made through the police dispatcher with someone in Pittsburg who agreed to pick them up but not immediately. It was arranged that the three men would meet their ride at Denny’s restaurant just off the freeway at an exit about three-quarters of a mile away. Officer Shabazz believed that it would be extremely unsafe for the men to attempt to walk to Denny’s, for, among other reasons, they would have to cross over two lanes of freeway traffic. Also, walking on the freeway is illegal, so Officer Shabazz did not intend to let the men do so. Furthermore, the other passenger was in bad physical shape and incoherent, appearing either to be intoxicated or to be suffering from a nervous condition.

Officer Shabazz explained to all three men that they would not be allowed to walk on the freeway and that the officers would be happy to transport them to Denny’s. Everyone appeared to understand, and no one objected. Officer Shabazz then explained to the three men that because they were going to be transported in an uncaged, unmarked vehicle, they would have to be pat-searched for “weapons and everything.” The driver and other passenger alighted from the car willingly and were pat-searched before entering the squad car. Appellant, about whom Officer Shabazz was particularly concerned because he had been “5150’d” earlier that day, raised no objection. Officer Shabazz then said to appellant, “ ‘Okay, do you want to step out of the vehicle? I’ll pat search you for any weapons.’ ’’ Appellant stepped out of the vehicle. The officer’s impression was that appellant wanted to ride in the squad car and was submitting to the search. If appellant had declined the pat-search, Officer Shabazz would not have had him transported in the sergeant’s uncaged vehicle.

When Officer Shabazz patted appellant’s outer jacket pocket for weapons, he was stuck by a hypodermic needle. Officer Shabazz had appellant remove the needle from his pocket and then arrested him for illegally possessing it. (Bus. & Prof. Code, § 4149.) A search of appellant’s person netted 24.4 grams of cocaine and over $400 in cash.

Discussion

Appellant contends that the trial court erred in denying his suppression motion. The two-step standard of review is well defined. First, it is the function of the trial court to find the facts based on the evidence before it. On appeal we uphold the trial court’s findings if they are supported by substantial evidence. Second, it is the role of this court to decide whether, given the facts, the search was reasonable. This is a question of law on which we exercise our independent judgment. (People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d 961].)

Relying on People v. Scott (1976) 16 Cal.3d 242 [128 Cal.Rptr. 39, 546 P.2d 327], appellant contends that the pat-search in this case was improper because appellant had not been informed that he had a right to refuse the ride and thereby avoid the search. That case has some factual similarities to the case at bench.

In Scott, defendant and his three-year-old son were spotted by highway patrol officers standing on a traffic island at the intersection of Highway 101 and an off-ramp. (People v. Scott, supra, 16 Cal.3d at pp. 245 (lead opn. of Mosk, J.), 252 (dis. opn. of Richardson, J.).) Both appeared to be urinating, and defendant was found to be too intoxicated to care for himself or his child. Defendant had no identification, but stated he was taking the child to its mother in San Francisco. Rather than arresting defendant, the officers volunteered to drive the pair to their destination. The child was placed in the patrol car. Defendant was told that he had to be patted down for the officers’ protection. An officer told defendant to raise his arms, which he did, without expressing either consent or objection. As he lifted his arms a pocket partially opened and a baggie of marijuana became visible. (Id., at pp. 245-246 (lead opn. of Mosk, J.), 252 (dis. opn. of Richardson, J.).) The trial court found that defendant did not consent to the search. (d., at p. 249.)

The majority of the Supreme Court held that special circumstances alone did not justify the patdown and that because defendant was not under arrest, the patdown had to be tested under the standards of Terry v. Ohio (1968) 392 U.S. 1, 27 [20 L.Ed.2d 889, 909, 88 S.Ct. 1868], namely, the officer had to have “ ‘reason to believe that he [or she] [was] dealing with an armed and dangerous individual ....’” (People v. Scott, supra, 16 Cal.3d at p. 249.) The court recognized the dilemma inherent in its holding, which set up an apparent conflict between two laudable objectives of accommodating the state’s interest in the safety of officers who volunteer to give rides in such cases and the individual’s right to be secure from unreasonable invasions of privacy. The court said that in order for patdown searches to be valid under these or similar circumstances, officers must first inform the individuals that they have a right to refuse the ride, and if they accept it, they will be subjected to a patdown search for weapons. (Id., at p. 250.) Because defendant Scott was not presented with this option and did not consent to the search, the evidence should have been suppressed. (Ibid.)

We believe that the Scott decision is distinguishable on its facts from the case at bench and is not controlling. In Scott, the opening sentence of the opinion stated that the officer had “no duty to transport” the defendant. (16 Cal.3d at p. 245.) Here, by way of contrast, a duty to transport existed. In denying appellant’s motion to suppress, the trial court stated that the public safety required the officer to do what he did, and that the search in question was reasonable and appropriate. This ruling of the trial court contains both factual findings and legal conclusions. We hold that the factual findings are supported by the evidence. As to the legal conclusions, we agree with them, and affirm the order. (People v. Leyba, supra, 29 Cal.3d at pp. 596-597.)

Here the officer had a duty to transport appellant. The officer correctly determined that he could not permit any of the three men to drive; one of them appeared physically unable to do so, and none of them were licensed. Therefore, the vehicle, which was not properly registered, had to be towed. The officer could not leave the men to be transported by the tow truck. It is common knowledge that tow trucks generally are not equipped to handle three passengers, and it is unlikely that the driver would have been able to take them to their rendezvous with their friend. Also, even if the officer could have left the men for the tow truck driver to transport, he might have endangered that driver had he not first frisked the three to determine that they were not armed and dangerous. This duty is particularly apparent in light of the officer’s knowledge that appellant had a serious drug problem. Failure to take this precaution might have exposed the officer and his employer to liability if the tow truck driver were harmed. (Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) Dangerous Conditions of Public Property, §§ 3.18-3.24, pp. 210-222.)

Furthermore, we take judicial notice of the fact that at 7:30 p.m. on New Year’s Day it was dark. (Evid. Code, §§ 452, subd. (h), 459.) The parked vehicle on the freeway shoulder was at risk of being hit by passing cars. (See, e.g., Willis v. Gordon (1978) 20 Cal.3d 629 [143 Cal.Rptr. 723, 574 P.2d 794].) But, even more seriously, the officers had no guaranty that appellant would not attempt walking on the freeway, thereby endangering not only himself, but motorists swerving to avoid him. These are just a few of the many possibilities which might have led not only to injury or property loss but also to government liability.

As the officer testified, walking on the freeway is dangerous and illegal. (Veh. Code, § 21960; see, e.g., Fry v. Young (1968) 267 Cal.App.2d 340, 347-350 [73 Cal.Rptr. 62]; Rangel v. Badolato (1955) 133 Cal.App.2d 254, 256-257 [284 P.2d 138].) While the cited code section contains an exception for and permits drivers of disabled vehicles to walk to the nearest exit in order to summon help, that exception is limited to “that side of the freeway upon which the vehicle is disabled,” and therefore would not have applied in this case, where the officer testified the men would have had to cross lanes of heavy freeway traffic in order to get to their ride. We take judicial notice of the fact that Highway 680 is busy and was undoubtedly heavily travelled at the time in question. (Evid. Code, §§ 452, subd. (g), 459.)

Thus, the facts of this case distinguish it from Scott. Although the physical setting is not described in detail by the Supreme Court, the place where defendant Scott and his child were found is described as a “traffic island formed by the Marin City off-ramp of Highway 101.” (People v. Scott, supra, 16 Cal.3d at p. 245.) Because the Supreme Court found no duty to transport Scott, we must conclude that the defendant there, unlike appellant in the case at bench, had an easy way to get off the island without endangering himself and others on the freeway. Here the trial court found facts which indicated to it that the officer acted properly, and we hold that those facts imposed a duty on Officer Shabazz to remove appellant and his companions from a position which was undeniably dangerous to themselves and to other members of the public.

In addition, under decisions on which the trial court relied in its ruling, and which were decided subsequent to People v. Scott, supra, 16 Cal.3d 242, the finding of a duty to protect the public safety renders the patdown and transportation of appellant valid. In New York v. Quarles (1984) 467 U.S. 649 [81 L.Ed.2d 550, 104 S.Ct. 2626], the police chased an armed rapist, caught and handcuffed him, and asked him where the gun was; he replied that it was “ ‘over there.’ ” (Id., at pp. 651-652.) The United States Supreme Court held that where there was no claim that defendant’s statements were compelled by police conduct which overcame his will to resist, “on these facts there is a ‘public safety’ exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved.” (Id., at pp. 654, 655-656 [81 L.Ed.2d at pp. 555, 557]; see Scott v. United States (1978) 436 U.S. 128, 136 [56 L.Ed.2d 168, 177, 98 S.Ct. 1717] [“the existence vel non of ... a [statutory or constitutional] violation turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him [or her] at the time.”].)

The court explained the circumstances which would excuse compliance with Miranda. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602 , 10 A.L.R.3d 974].) “The exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.” (New York v. Quarles, supra, 467 U.S. at pp. 658-659 [81 L.Ed.2d at p. 559].)

In holding that Miranda rights under the Fifth Amendment are subject to exigency exceptions, the court emphasized that it had “long recognized an exigent-circumstances exception to the warrant requirement in the Fourth Amendment context. [Citations.]" (New York v. Quarles, supra, 467 U.S. at p. 653, fn. 3 [81 L.Ed.2d at p. 555].)

Thus the United States Supreme Court has made clear that the needs of public safety may outweigh both Fourth and Fifth Amendment rights under appropriate circumstances. Here, the trial court expressly found that such circumstances existed, and the evidence supports that finding. The appellate courts of this state have long recognized that the need to transport a person in a police vehicle in itself is an exigency which justifies a pat-search for weapons. (People v. Mack (1977) 66 Cal.App.3d 839, 848 [136 Cal.Rptr. 283], citing People v. Brisendine (1975) 13 Cal.3d 528, 538, 545 [119 Cal.Rptr. 315, 531 P.2d 1099] [“In the case of transportation in the police vehicle, . . . the necessity of close proximity will itself provide the needed basis for a protective pat-down of the person. . . .”] and People v. Norman (1975) 14 Cal.3d 929, 938 [123 Cal.Rptr. 109, 538 P.2d 237].)

We conclude that the exigency which existed and the need for public safety supported the officer’s conducting a minimally intrusive patdown search of appellant’s outer clothing. (See generally, People v. Hill (1974) 12 Cal.3d 731, 746 [117 Cal.Rptr. 393, 528 P.2d 1], overruled on another ground in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5 [135 Cal.Rptr. 786, 558 P.2d 872].) We do not believe that People v. Scott, supra, 16 Cal.3d 242, holds otherwise, but to the extent that it might have been so interpreted, it has been limited by Quarles and other “public safety” rulings. The evidence was properly discovered and need not be suppressed. (New York v. Quarles, supra, 467 U.S. at p. 659 [81 L.Ed.2d at p. 559].) No error occurred.

The judgment is affirmed.

Merrill, J., concurred.

1 The following facts are taken from the preliminary hearing transcript and other evidence adduced at the hearing on appellant’s suppression motion.

2 The witness’s name is spelled “Akeem” in the reporter’s transcript of the Penal Code section 1538.5 hearing and “Hakeem” in the preliminary hearing transcript.