By Adrian Lopez
Proceedings heated up in Department 11 when a motion to strike charges was argued before a visiting judge, the Honorable S. William Abel, in People v. McAllister.
Counsel for Donald Gene McAllister moved to strike misdemeanor charges of narcotic possession, possession of a controlled substance, possession of narcotic paraphernalia, and the transport of marijuana on the grounds that defendant McAllister was the subject of an unreasonable frisk by a peace officer.
Allegedly, on the night of McAllister’s arrest, September 30, 2017, an anonymous informant referred to only as “Kevin” reported his U-Haul truck stolen on Interstate 5. According to defense counsel, no description of the U-Haul or its license plate or documentation was provided by Kevin to police.
Mr. McAllister, driving a U-Haul truck, was pulled over by a peace officer on I-5 around midnight. Defense counsel claimed McAllister was fully cooperative with the officer 
and was in no way threatening or aggressive.
The officer asked McAllister if he possessed any drugs or weapons on his person, to which McAllister openly admitted he had a weapon. The officer then “frisked” McAllister and found a weapon and narcotics on his person.
Defense counsel proffered that this “frisk” was unreasonable and without justification, arguing that the anonymous informant Kevin, and therefore the police, knew far too little, if anything, about the stolen U-Haul truck or its driver to believe on reasonable grounds that the driver was armed and dangerous.
Defense counsel cited People v. Medina (2003)[1], where a driver was stopped for an equipment defect on his car and was subjected to a patdown search without “specific and articulable facts that could support a rational suspicion that [the driver was] involved in some activity relating to crime.”
In Medina, the court held that this search was unreasonable, and defense counsel asserted the circumstances were similar in this case, arguing McAllister admitting possession of a weapon does not permit a search of his person, as the peace officer allegedly had no “specific and articulable facts” to believe McAllister was “armed and dangerous,” as required by Terry v. Ohio (1968)[2].
Counsel for the People urged the court to deny the motion to strike charges, arguing that because the peace officer was alone on I-5 at night, a “high-activity thoroughfare,” it was reasonable for the officer to believe a driver could be armed and dangerous when conducting a traffic stop.
Additionally, the prosecution insisted that, because a “felony investigation” was being conducted regarding the theft of a U-Haul truck, the peace officer deserves deference in believing a driver of a potentially stolen U-Haul truck on I-5 at night could be armed and dangerous.
Defense counsel responded by pointing out the motion to strike charges concerned only misdemeanor charges in the case, and not the felony charges.
Ultimately, Judge Abel denied the motion to strike charges, siding with the People, and the trial of Donald Gene McAllister is set for July 23, 2018.
[1] https://caselaw.findlaw.com/ca-court-of-appeal/1460951.html
[2] https://supreme.justia.com/cases/federal/us/392/1/case.html
