Free Response to Order to Show Cause - District Court of California - California

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EXHIBIT C (PART 1)

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COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

~YL KENNETH LAMART·JORDAN, Defendants and Appellants. THE PEOPLE, Plaintiff and Appellant,
v.

v.

) ) ) ) ) ) ) ) ) ) ) )

2d Crim. No. 40162 (Super. Ct. Nos. A 357550, A 617792)

CQURT Of APPEAL. SECOND liST.

'RLlEJD) APR 251983
2d Crim. No. 40599 (Super.Ct.No. A 357550)

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) ) ) ) ) ) )

DARRYL LEROY DAWSON,

Defendant and Respondent. --------------) APPEAL from judgments and an order of the Superior Court of Los Angeles
Count~.

James M. Ideman, Judge.

Judgment

affirmed; judgment affirmed in part and reversed in part with directions; order reversed.

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Baird A. Brown, under appointment by the Court of Appeal, for Defendant and Appellant Darryl Lero¥ .Dawson. Paul Arthur Turner, under appointment by the Court of Appeal, for Defendant and Appellant Kenneth Lamart Jordan. John K. Van De Kamp and Robert H. Philibosian, District Attorneys of Appellate
~os

Angeles County; Harry B. Sondheim, Head, and Maurice H. Oppenheim, Deputy District

Divis~on;

Attorney, for Plaintiff and Respondent.

John K. Van De Kamp and Robert H. Philibosian, District Attorneys of Los Angeles County; Harry B. Sondheim, Head-, Appellate Division; and Maurice H. Oppenheim, Deputy District Attorney, for Plaintiff and Appellant ·. Baird A. Brown, under appointment by the Court of Appeal, for Defendant and Respondent Darryl Leroy Dawson.

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INTRODUCTION Defendants Darryl Leroy Dawson (Dawson) anq Kenneth Lamart Jordan (Jordan) appeal from judgments Of conviction entered after a jury trial. Prior to trial, defendants' motions to

suppress evidence pursuant to Penal Code section 1538.5 were denied. Defendants' motions to exclude as impermissibly

suggestive evidence of photographic lineup identifications and in-court identifications based thereon were also denied. The jury found both defendants guilty of 13 counts of robbery (Pen. Code, § 211) [a January 30, 1980 Jack-in-the-Box robbery in which property was taken from two victims; a February 29, 1980 McCoy's Market robbery in which property was taken from five.victims; a February 29, 1980 Boy's Market robbery in which property was taken from six victims], in the course of which each defendant personally used a firearm (Pen. Code, § 12022.5); and one count of first degree murder (Pen. Code, §§ 187/189) [stemming from the February 29, 1980 Boy's Market incident], in the course of which Jordan personally used a firearm (Pen. Code, § 12022.5; § 12022, subd. (a» inflicted great bodily injury upon the victim
§ 12022.7).
(P~n.

and Code,

The jury further found Jordan guilty of 10

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additional counts of robbery (Pen. Code, § 211), in the course of which he personally used a firearm (Pen. Code, § 12022.5); and one additional count of first degree murder (Peri. Code,
(

§ 187/189), in the course of which he personally used a firearm

(Pen. Code, § 12022.5) and inflicted great bodily injury upon the victim (Pen. Code, § 12022.7). The jury also found to be

true allegations that the murders occurred while defendant/ defendants were committing or accomplices in the commission of a robbery/robberies (Pen. Code, § 190.2, subds .. (a) (170 (i) and
(b)) ·

It having previously been agreed.that the sentence for Dawson upon a murder conviction in which the special allegation pursuant to Penal Code section 190.2 was found to be true would be life imprisonment without possibility of parole, trial proceeded upon the penalty phase of Jordan's murder convictions. After two mistrials, the People declined to

proceed with a third trial, after which the penalties were fixed at life imprisonment without possibility of parole ·. Dawson's motion for a new trial was denied, but the trial court granted his motion to strike the special circumstance pursuant to Penal Code section 190.2. Thereafter, each defendant was

sentenced to state prison for the terms prescribed by law.

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The People appeal from the trial court's order striking the special circumstance pursuant to Penal Code section 190.2, as to Dawson.

STATEHENT OF FACTS Penal Code section 1538.5 Hearing On February 29, 1980, at approximately 8:00 p.m., Los Angeles County Deputy Sheriffs John Rodriguez and Susan Beck investigated a report of a robbery at McCoy's Market in Lynwood. The deputies interviewed eight or nine witnesses to

the incident, from which they compiled a composite description of the robbery suspects. One suspect was described as a mixed

oriental-black male with "Samoan" features and a thin moustache, age' 20 to 25 years, 5'6" to 5'7" tall, weighing approximately 140 pounds, wearing brown trousers and a red and gray jacket. The other suspect was described as a black male,

age 20 to 25 years, approximately 5' 1111 tall, weighing approximately 160 pounds, and wearing a black leather jacket. Deputy Rodriguez further learned that the suspects were armed with two handguns--respectively, a two-inch and a four-inch .38 caliber weapon. At approximately 11:00 p.m. on the same evening, Deputies Rodriguez and Beck were traveling westbound on Imperial Highway

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in Lynwood, approaching State Street--approximately three to three and one-half miles from the scene of the McCoy's Market robbery. They observed a Chevrolet Vega hatchback traveling in

the same direction proceed through the red traffic signal at State Street. Utilizing red lights and siren, the deputies

attempted to intercept the Vega, which continued traveling one and one-half blocks before stopping, weaving from lane to lane. The occupants--Dawson, the driver, and Jordan, the As Deputy Rogdriguez

passenger--emerged from the automobile.

-approached the automobile, he observed the r'esemb Lance of the occupants to the descriptions of the McCoy's Market robbery suspects--noting particularly Jordan's oriental features and brown trousers. As Deputy Rodriguez conducted a pat-down search of the driver (Dawson), he observed in plain view on the automobile's
)

passenger seat a black leather pouch from which protruded the butt of a handgun. As a consequence of this observation,

Deputy Rodriguez concluded the automobile's occupants were, indeed, the McCoy's Market robbery suspects. Accordingly, he

handcuffed Dawson and escorted him to the sheriff's vehicle, placing him in Deputy Beck's custody, then returned to handcuff and. to conduct a pat-down search of Jordan. In the course of

that search, Deputy Rodriguez found a substantial sum of money in Jordan's back trousers pockets. Meanwhile, Deputy Beck

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conducted a second pat-down search of Dawson, during which she found two rolls of currency, one in each of Dawson's socks. After escorting Jordan to the patrol vehicle, Deputy Rodriguez retrieved the black leather pouch containing the handgun. Thereafter, he searched the open passenger and The search yielded a red

hatchback compartments of the Vega.

and gray plaid jacket, a black leather jacket, an army field jacket, a raincoat and an open bag of miscellaneous coin. In the course of investigating

a

robbery/homicide ata

Boy's Market in Los Angeles, which occurred on February 29, 1980, approximately One hour after the McCoy's Marke.t robbery, Los Angeles Police Officer Bird initiated a teletype
me~sage

which recited details of the crime, specific descriptions of the suspects (including the mixed oriental-black features of one suspect), and the make of the automobile utilized therein. After perusing the teletype, Los Angeles County Sheriff's Sergeant Hubaud of the Lynwood Station telephoned Officer Bird. In response, on March 5, 1980, Officer Bird visited the

Lynwood Station, where he spoke with Sergeant Hubaud and examined the .38 caliber handgun and black leather pouch retrieved at the time of Dawson's and Jordan's arrests and booked as evidence.

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In the course of his examination, Officer Bird found in the zippered pocket of the leather pouch a piece of paper bearing the name "Ken," followed by the word "key" and the number "6373532." Officer Bird knew "key" to be an alias of Jordan;
departm~nt's

consequently, he ran the number through the police

reverse telephone directory and found it to be a published number listed to Kenneth Jordan at 5248 Pendleton Avenue, apartment K40, South Gate. This contrasted with the address

Jordan had provided upon his arrest; that address proved to be his mother's residence, from which he had long been absent. Thereafter, photographic lineups including pictures of Dawson and Jordan were shown to at least one witness of the Boy's Market robbery/homicide, which resulted in positive identifications. As a result, on the evening of March 5, 1980,

Officer Bird visited Jordan's South Gate residence in the company of two other officers. In back of. the apartment,

Officer Bird observed a red 1969 Volkswagen with primer paint on the fenders; this matched the description of the vehicle used in the Boy's Market crimes then under investigation. Through the window of the automobile, Officer Bird saw a gasoline receipt indicating a purchase made by Kenneth Jordan on February 29, 1980. A license plate number check confirmed

that the automobile was registered to a Kenneth Jordan with a listed address in Compton.

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From information reported by an anonymous

ca~ler,

Officer

Bird had reason to believe that an unapprehended third individual had driven the Volkswagen during the commission of the Boy's Market crimes. Conversations with the landlord and

residents of the apartment building revealed that a second man occupied the apartment with Jordan and utilized the Volkswagen; since March 1, only one individual had been going to and from the apartment. Inasmuch as Jordan and Dawson had been in

custody continuously since February 29, Officer Bird believed it possible that the third suspect was living in the apartment. In pursuit of confirmatory information, Officer Bird knocked on the door of apartment K40;he was accompanied by Detectives Watson and Hefferman. An individual later

identified as Joseph Michael Elgin (Elgin) opened the door. Officer Bird explained that they were investigating a robbery and murder, after which Elgin invited the officers to.enter, stating that he lived there with Jordan. Once inside the

apartment, Detective Watson conducted a pat-down search of Elgin, in the course of which a roll of currency in the approximate sum of $1,700 fell out of Elgin's left sock. Since

Elgin was becoming "quite fidgety" and would not remain still, he was handcuffed to preserve the officers' safety. It was

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Detective Watson's recollection that Elgin was told he was under arrest at this time. Elgin was advised of his

constitutional rights, which he then waived. Officer Bird asked permission to search the apartment, indicating that if Elgin did not consent, the officers would procure a search warrant. While the officers were discussing

the subject of a search, Elgin stated that he knew what they were looking for and escorted the officers to a linen closet where he directed their attention to a plastic bag. Officer

Bird found inside the bag a .38 caliber revolver and a .25 caliber automatic, as well as toiletries Elgin identified as his and two wallets, one of which also belonged to Elgin. It

was Officer Bird's recollection that after finding the guns he informed Elgin he was under arrest for murder. Elgin felt no compulsion or pressure to consent to a search; he led the officers to the guns because he considered their discovery inevitable. After Elgin led the officers to

the guns, they made no further effort to search the premises per Elgin's consent, but instead obtained and executed a search warrant.

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Additional Facts Adduced at Trial On January 13, 1980, a man later identified as Jordan approached Wayne Potter (Potter), the night manager of a Safeway Market in Compton and demanded at gunpoint the money which Potter was then removing from a cash register at the liquor counter. Potter acceded to the demand, after which With

Jordan ordered him to proceed to the front register.

Potter's assistance, the cashier, Tammy Sallis, first gave Jordan the money from the upper part of the cash register, then at Jordan's further command, relinquished the 20 dollar bills from the bottom. Jordan ordered Potter to move to the next cash register, manned by Mike Dorgan. Potter removed the money from this Potter, Sallis and Dorgan

register and handed it to Jordan.

all positively identified Jordan as the perpetrator, as did a box boy, Michael Frazier. At approximately 7:30 p.m. on January 30, 1980, Ketron Grady (Grady), a checker at a Safeway Market in Los Angeles, observed two men loitering in the store lobby. One of the men,

later identified as Jordan, came to Grady's cash register and purchased a package of ham. As she placed the ham in a bag,

Jordan displayed a handgun and told Grady to put the register

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money in the bag.

After Grady complied, Jordan told her not to The second man, whom she

move until he left the store.

identified as Dawson, stood in the lobby throughout the incident, "watching the front end"; he was wearing a plaid pea. coat similar to People's exhibit 3. Prior to trial, Grady made

a tentative photographic identification of Dawson. At approximately 10:30 p.m. on January 30, John Cody (Cody), the uniformed and armed security guard on duty at an Alpha Beta Market in Inglewood, observed two men in the store near his location at checkstand number 3. The person he

identified as Jordan was behind Cody, while the person he identified as Dawson' stood behind the checker, Randall Pratt (Pratt). Jordan and Dawson aimed handguns at Cody and Pratt,

respectively, whereupon Cody told Pratt to give Dawson the cash register money. Pratt apparently moved too slowly, for Dawson Dawson then asked

began helping him to put the money in a bag.
(

Jordan whether he had taken Cody's "Roscoe" (meaning gun), whereupon Jordan did so. carrying the bag of money. When Cody described the perpetrators to police officers, the height he ascribed to the man he later identified as Dawson was at considerable variance from Dawson's actual height. The defendants left, with Dawson

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Cody's photographic identification of Dawson was tentative; he was fifty percent certain. Pratt identified Jordan, but was

unable to identify the second individual; this individual was wearing the plaid jacket which was People's exhibit 3. At approximately 10:40 p.m. on January 30, Tyrone Jackson (Jackson), the assistant manager of the Jack-in-the-Box Restaurant on Century Boulevard in Inglewood, noticed the cashier, Darryl Waters (Waters), hand something through the
dEiye~up

window to a man he later identified as Dawson.

When

Jackson complained, Dawson pointed a handgun at him.

Jackson

ducked behind the grill, whereupon a man later identified as Jordan told
Jackso~

to come out or there would be shooting.

At gunpoint, Jordan ordered Jackson to have another employee, Lorrie Patno (Patno) admit Dawson through the back door. Patno did so, after which Dawson walked Jackson to the Jordan ordered Jackson to open the

front of the restaurant.

safe; as Jackson reached for his wallet to obtain the safe combination, Jordan cocked the handgun he was 'aiming at Jackson. Jackson explained his purpose and was allowed to

remove his wallet, whereupon Dawson took possession and removed the combination for Jackson; Dawson retained the wallet. In

addition, the defendants took all the coins from the safe, the money from the cash register and Waters' wallet.

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Jackson positively identified both defendants, as did Patno. Fourteen-year-old Willie Pogues saw the perpetrators

flee in a black Cadillac Eldorado. At approximately 10:50 p.m. on January 30, Bertha Shelley (Shelley), the cashier at Norm's Restaurant on La Cienega Boulevard in Culver City, looked up from operating the cash register to see a gun in her face. Shelley screamed and fled Billie Love

to the kitchen; subsequently, she, heard gunshots.

(Love), a restaurant customer, was talking to the victim, John Martin (Martin), when a man Love later identified as Jordan approached and asked Hartin for his wallet. Hartin replied

that he did not have one, whereupon Jordan pulled out a gun and shot Hartin in the left side inflicting an injury which caused Martin's death. Love observed a second man standing near the

cash register who subsequently left with Jordan. Norbert Grant (Grant) was seated at the restaurant counter, when he observed Jordan approach Martin and demand his wallet. When Martin hesitated, Jordan shot him; Jordan then bent over Martin and removed his wallet. Grant observed another man,

whom he identified as Dawson, removing money from the cash register. Although Grant was adamant in his identifications,

he had not provided the police with descriptions of the perpetrators.

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Waitress Verne11 Winchester also saw the shoo t.i.ng and identified Jordan; after the shot was fired, she ran to the back of the restaurant. Customer Lewis McGlaughlin looked up

from his meal at the sound of a shot and saw two black men running out of the restaurant door. He could not identify

either individual, but one was wearing a plaid jacket similar to People's exhibit 3. On February 29, 1980 at approximately 8:00 p.m., a man later identified as Jordanappr.oached Robert Johnson.{Johnson), a checker at McCoy's Market in Lynwood, and asked the whereabouts of the security guard, mentioning him by name. Some minutes later, from behind Johnson, Jordan ordered him to remain at his. checkstand, to remove the money from the cash register and to place it in a paper bag. Johnson complied,

then turned around, whereupon he observed a gun in Jordan's hand. Jordan told Johnson to put the coins in the bag also;

Johnson did so and handed the bag to Jordan. Johnson saw a second individual, holding a gun pointed at the floor, talking to checker Linda Lovey (Lovey), who was removing money from her cash register. Lovey identified Dawson

as the individual who ordered her to empty her register, as well as those at two closed checkstands. Although Lovey did

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not see a gun in Dawson's possession, she was frightened in that she observed a gun in Jordan's hand. Laura Riley, the liquor clerk, saw two men approach Johnson's and Lovey's checkstands, then was accosted at gunpoint by a third individual who demanded the money from her cash register. She never looked at this individual's Dwight Linger (Linger), the snack bar

face--just at his gun.

operator, was walking from the snack bar when a woman told him --- a-robbery was -taking place. sheriff's department. He went -outis Lde to- te-lephonethe
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As Linger was reporting the robbery,

Dawson approached and asked whether Linger was telephoning the sheriff's department. Upon Linger's denial, Dawson ordered him After Linger

to hang up the telephone and return to the store.

complied, Dawson took his wallet, while Jordan took property from Mrs. Linger. Before the three perpetrators left the

market, Jordan placed a gun in the side of Jerry Hanson, the uniformed unarmed security guard, and ordered him to the rear of the store. At approximately 9:00 p.m. on February 29, Vincent Osby (Osby), box boy at a Boy's Market in Los Angeles, was standing
\

outside the market when he saw a man later identified as Jordan enter the store. As Jordan did so, he passed Manuel Talley

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(Talley) who was circulating a petition at the entrance. Jordan immediately came back outside and walked around the corner toward the telphones. Shortly before, Dwight Cousins

(Cousins), the uniformed and armed security guard, had passed Osby, walking in the same direction. Osby heard a shot, after

which he looked in the direction of the telephones in time to see the security guard falling. Talley heard Cousins cry out,

"Oh my God, I've been hit"; Cousins was clutching a telephone receiver as he fe Ll. Osby heard Jordan, who had a gun in his

hand, say to the security guard, "Give me your gun,1I after which Jordan took the guard's gun. Jordan then walked past Cousins bled to

Osby and Talley and reentered the store. death.

In the store, two men approached Stacy Tucker (Tucker) 'at the express checkstand, number 11, and demanded the money from the cash register. Tucker identified Jordan as one of the men, She

but could not identify the individual who displayed a gun. gave the money to the man with the gun, after which the pair walked away. A man later identified as Dawson approached Edward Smith

(Smith), the assistant manager, pointed a gun at him and told Smith he would be shot if he did not do as he was told. Dawson

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then marched Smith to checkstandsnumbers 6, 5 and 2 in succession (numbers 3 and 4 were closed); where he demanded money from each of the checkers, Maritza Lima (Lima), Neil Murakami and Nicholas Asamoa (Asamoa), respectively. Lima and

Asamoa identified Dawson, as did Andrew Wallace, a customer at . Asamoa's checkstand, and Sidney Pharris, the liquor clerk. Jordan approached Jennifer de Jesus, the checker at checkstand number 8, and demanded food stamps and change; he helped her to .emp t y .t.he cash z egd.s.t e'r c.
.

Thereafter, Jordan ..

called across the room to his companion and proceeded to the next checkstand.
\

He then approached Lima at checkstand number As one

6, who told Jordan his friend already had been there.

of the box boys was calling for security, Francis Walker, the box girl at checkstand number 5, heard Jordan say to the box boy, "r've already killed one person, do you.want to be next?" After Jordan learned that Dawson had visited checkstand number 6, he called, "Let's go," and the pair left the store. As

Talley was reporting the shooting of Cousins by telephone, he saw Jordan run out of the store, past him, and toward an alley. On the preceding night, February 28, at approximately 8:00 or 8:15 p.m., another of the market's uniformed security guards

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.observed a red Volkswagen with primer-painted fenders parked at the store with the lights off. The automobile remained parked

for approximately 15 to 20 minutes; it contained three occupants. TIlereafter, the automobile moved to an area in

front of the market's liquor department, where it remained approximateiy five mintues; it then moved to a third location. When the guard approached the vehicle, it swerved away and headed toward the parking lot. illuminated. At no time were the headlights

The Volkswagen looked like the one pictured in

People's exhibits 44 and 45, which depict a vehicle 'registered to Jordan and observed at his residence subsequent to the events of February.29. On March 1, 1980, Jordan telephoned Elgin from jail and told him to take money from the dresser drawer to pay the rent on their mutually-shared apartment and to sell or "pass off" the food stamps. Jordan further directed Elgin to count the

money in the black leather jacket; upon doing so, Elgin found $1,600 or $1,700. Jordan telephoned again on March 4; he told

Elgin to take "Sally and Mary" from the side of the toilet stool and to take the money to Jordan's mother's house. Elgin

found two handguns beside the toilet, which he placed in a plastic bag with his personal toiletries; he returned the money to the leather jacket.

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On the following day, Jordan asked whether "Hary" and "Sally" and the money had been taken to his mother's. Elgin

replied affirmatively, although all of the items were s.till in the apartment. The police arrived during the conversation.

A search of the apartment shared by Jordan and Dawson, made pursuant to a search warrant, yielded .38 caliber ammunition, a Boy's Market grocery bag and food stamps from Boy's Market and McCoy's Market. The .38 caliber Taurus revolver, taken from

Cody during the January 30 Alpha. Beta: Market robbery and, _ _ recovered from the apartment, was the weapon with which Martin and Cousins were shot.

DEFENSE Jordan testified in his own behalf that he was arrested while a passenger in Dawson's automobile; the handgun was found under the bottom panel of the hatchback in the spare tire compartment. Of the clothing found in the automobile, only the He had in his possession only He

leather jacket belonged to him.

.

$81 in single dollar bills, which he won gambling.

telephoned. Elgin to request that Elgin pick up Jordan's Cadillac Eldorado from a repair shop. He denied ever

mentioning guns or the rent in his conversations with Elgin.

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Jordan further testified that he had seen the leather pouch containing the handgun on previous occasions; the pouch did have his telephone number in it; he denied keeping guns in his apartment or owning a gun. The $1,950 in the pocket of'the

black leather jacket hanging .in his apartment came from work, gambling and selling drugs.

CONTENTIONS
I

Defendants' Appeals Both defendants contend that the trial court erred in denying their motions to suppress evidence pursuant to Penal Code section 1538.5 for the following reasons: A. Deputy Rodriguez lacked probable cause to arrest

defendants; B. Deputy Rodriguez lacked probable cause and the

requisite exigent circumstances to conduct a warrantless search of the Chevrolet Vega; C. The subsequent warrantless search of the black leather

pouch containing a handgun was unjustified; D. The pat-down search of Elgin was unjustified;

accordingly, the police lacked probable cause to arrest Elgin;

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E.

Further, Elgin's warrantless arrest was per se

unreasonable; and F. Elgin's consent to search the apartment was not freely

and voluntarily given. II Jordan contends that the trial court erroneously failed to instruct the jury sua sponte on murder in the second degree. III Jordan avers that the trial court erred in denying his motion to exclude evidence of witnesses' photographic lineup identifications and in-court identifications based t.her eon , in that the photographic lineup was impermissibly suggestive.

IV
Jordan asserts that the trial court failed to articulate adequate reasons for imposing consecutive sentences.

v
Jordan further asserts that the sentences imposed on counts I, II and III constitute multiple punishment in violation of Penal Code section 654.

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VI
Jordan also avers that he is entitled to good time/work time credits.

VII
Finally, Jordan contends that
the_~rial

court failedtQ

properly instruct the jury on the intent required to sustain the special circumstances alleged pursuant to Penal Code section 190.2.

VIII
Dawson contends there is no substantial evidence to sustain his conviction of the robbery of the security guard, Cousins, or of Cousins' murder under the felony-murder doctrine.

IX
Both defendants aver that ,the felony-murder doctrine is no longer an accurate statement of the law.

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The People's Appeal The People contend that the trial court erred in striking the special circumstance as to Dawson for the following reasons: A. An intent to aid in the killing is not an element

required of a special circumstance enumerated in Penal Code section 190.2, subdivision (a)(17), as applied by subdivision
(b) ;

B.

Assuming that intent is required, there is substantial

evidence that Dawson possessed the requisite intent.

DISCUSSION
I

Defendants' Appeals Both defendants contend the trial court erred in denying their motions to suppress evidence pursuant to Penal Code section 1538.5. We disagree.

Probable Cause to Arrest Relying upon People v.
Har~is

(1975) 15 Cal.3d 384, People

v. Curtis (1969) 70 Cal.2d 347 and People v. Mickelson (1963) 59 Cal.2d 448, defendants argue that the identification data furnished Deputies Rodriguez and Beck following the robbery of

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McCoy's Market was insufficient to establish probable cause for their arrests, in that the data did not describe singularly unique individuals. We find each of the above cases

distinguishable with respect to the nature and extent of the identification data furnished. In Harris, the data deemed

insufficient recited a description of a male Caucasian, 5' 8 11 in height, weighing 150 pounds, with dark hair and moustache, wearing a light cardigan sweater and dark trousers--a generalized description with no distinctive features. In

Curtis, the sole description was quite general and vague, solely that of a black man in a white shirt and tan trousers. The Mickelson description was little better: with dark hair, wearing a red sweater. In contrast to the foregoing, Deputies Rodriguez and Beck had particulars as to the height and weight of two male individuals, as well as the information that the shorter male was of mixed oriental and black or IISamoanll heritage and clad in brown trousers and a red and gray plaid jacket. Moreover,
I

a tall white man

the deputies had ample cause to effect a traffic stop, in the course of which the defendants behaved suspiciously and Deputy Rodriguez observed in plain view a leather pouch from which protruded the butt of a handgun; the deputies knew both robbers had been armed with .38 caliber handguns.

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It was the combination of these factors--traffic offenders behaving suspiciously, who in tandem so closely resembled fresh robbery suspects, coupled with the presence of a handgtin--which reasonably caused Deputy Rodriguez "to believe and conscientiously entertain an honest and strong suspicion" that defendants were guilty of the robbery. (People v. Superior As In re Louis F.

Court (Wells) (1980) 27 Cal.3d 670, 674.) (1978) 85 Cal.App.3d 611, 616 noted: should
n~t

"Curtis and Hickelson

be understood as standing for the proposition

identification data furnished to a police officer can never alone be sufficient to justify a warrantless arrest unless there could not have been anyone other than the person arrested who could have fit the description. one of degree. Rather, the question is

And when identification information of the kind

here present is buttressed by additional probative evidence of complicity, it cannot be maintained probable cause was lacking." (Emphasis original.)
1

1

Inasmuch as the arrests were supported by probable cause, the searches of defendants' persons which yielded the rolls of currency were valid as incident to the arrests. (Chimel v. California (1969) 395 u.S. 752, 763.)

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Warrantless Automobile Search Defendants next challenge the warrantless search of the Vega's open passenger and hatchback compartment. As noted

previously, Deputy Rodriguez observed in plain view the leather pouch containing the handgun; hence, it was not seized pursuant to a search. (Harris v. United States (1967) 390 U.S. 234; As to the

Jackson v. Superior Court (1977) 74 Cal.App.3d 361.)

other items seized, there were ample exigencies present to
jU$:ti~'Y .:i-wa):."rCl,nt:,lesss~arch.

Deputy Rodr:Lguez knew two,

handguns had been used in the McCoy's Market robbery; only one was observed in plain view in the automobile. In such

circumstances, "concern for the safety of the general public who might be endangered if an intruder removed a revolver from . the vehicle" justifies a warrantless search of the automobile passenger compartment. (Cady v. Dombrowski (1973)

413 U.S. 433, 447; see also People v. Johnson (1981) 30 Cal.3d 444, 450 and People v. Martinez (1981) 118 Cal.App.3d 624, 635.) Warrantless Search of Leather Pouch Absent exigent circumstances, a warrant is generally required to search those closed containers commonly or invariably associated with a reasonable expectation of

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privacy.

(Arkansas v. Sanders (1979) 442 u.S. 753, 765; Defendants argue

Chadwick v. United States (1977) 433 U.S. 1.)

that the leather pouch at issue herein, with its closed, zippered
pockets~

is a container so associated with an

expectation of privacy. We note, however, that the trial court specifically found that the pouch was intended and utilized solely as a gun case or holster. Inasmuch c;S this finding is supported by (People v. Superior As Arkansas v.

substantial evidence, we are bound by it.

Court (Keithley) (1975) 13 Cal.3d 406, 410.)

Sanders, supra, recognized, "Not all containers · · · will deserve the full protection of the Fourth Amendment. Thus,

some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy' because their contents can be inferred from their outward appearance." (442 U.s. at p. 764, fn. 13.)

The instant leather pouch falls squarely within the above category. That a container such as a holster or gun case

possesses separate zippered compartments does not create an aura of privacy where none otherwise exists. Since defendants

had no reasonable expectation of privacy associated with the pouch, Officer Bird's examination of the zippered compartment did not constitute an the Fourth Amendment.
~nreasonable
;

search within the meaning of

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Probable Cause to Arrest Elgin Relying in part on People v. Lieb (1976) 16 Cal.3d 869, Cunha v. Superior Court (1970) 2 Cal.3d 352, Remers v. Superior Court (1970) 2 Cal.3d 659 and People v. Shelton (1964) 60 Cal.2d 740, defendants argue that Elgin's arrest was not supported by probable cause since the police officers' suspicions were grounded on facts amounting to nothing more than "guilt by association." Were the facts available to

Officer Bird solely Elgin's co-residence in Jordan's apartment and access to Jordan's Volkswagen, we would perforce agree; but such is not the case. Officer Bird had specific information that a third suspect had driven the Volkswagen as the "getaway car" following the Boy's Market robbery/homicide. Since Jordan and Dawson had, at

that point, been identified as the perpetrators inside the store and the Volkswagen was registered to Jordan, the information gathered by Officer Bird with respect to the access to and ready use of the Volkswagen by Jordan's roommate had a more substantial character than simply to suggest guilt by association; that information reasonably raised a suspicion sufficient to justify ,further investigation. In pursuit

thereof, Officer Bird approached the apartment to interview