Baird

*452 Opinion

The People appeal from an order dismissing an information which charged respondents Baird and Drummond with possession of a fire bomb (Pen. Code, § 452, subd. (b)). Dismissal, under Penal Code section 1385, followed the granting of a motion to suppress evidence pursuant to Penal Code section 1538.5. We reverse the order of dismissal.

During the closing days of June 1968, the portion of Berkeley adjacent to the campus of the University of California was the scene of a serious riot or civil, disturbance. Events culminated on June 30, with the imposition of a curfew effective 7 p.m. Fire bombs had been thrown in the affected area during the previous evening; large numbers of police officers were employed in trying to restore order and protect lives and property. Having participated in these unhappy events for three days, Sergeant Glenn and other officers under his direction responded at about 9:30 p.m. to a call to assist a small unit of traffic police who were being attácked by a rock-throwing crowd of about 50 persons. The traffic officers had been posted at a point near the intersection of Telegraph Avenue and Derby Street with directions to block Telegraph Avenue…

I dissent. While I do not question the relevant Fourth Amendment principles as expressed by the majority, I do not agree that Officer Shaffer’s search of the automobile was justified under any of them.

Prior to the pursuit and search of the vehicle, the City of Berkeley had unquestionably experienced civil disturbances in its streets. Although the evidence does not disclose the full nature and extent of these disturbances, it reasonably appears that a curfew had been imposed and that fire bombs had been thrown, at unmentioned times and places within the city, during the preceding three days. In addition, Sergeant Glenn and his squad had witnessed a riotous, rock-throwing incident before pursuing and searching respondents’ vehicle. These circumstances in general, however, would not have justified the police in stopping and searching every vehicle in the area; the question thus presented is whether any additional facts distinguished respondents and their vehicle from the myriad of persons and automobiles on the Berkeley streets that night.

The only such facts appeared in the visual observation by Sergeant Glenn—and by him alone—of some persons running to and from a school…

The People appeal from an order dismissing an information which charged respondents Baird and Drummond with possession of a fire bomb (Pen. Code, § 452, subd. (b)). Dismissal, under Penal Code section 1385, followed the granting of a motion to suppress evidence pursuant to Penal Code section 1538.5. We reverse the order of dismissal.

During the closing days of June 1968, the portion of Berkeley adjacent to the campus of the University of California was the scene of a serious riot or civil disturbance. Events culminated on June 30, with the imposition of a curfew effective 7 p.m. Fire bombs had been thrown in the affected area during the previous evening; large numbers of police officers were employed in trying to restore order and protect lives and property. Having participated in these unhappy events for three days, Sergeant Glenn and other officers under his direction responded at about 9:30 p.m. to a call to assist a small unit of traffic police who were being attacked by a rock-throwing crowd of about 50 persons. The traffic officers had been posted at a point near the intersection of Telegraph Avenue and Derby Street with directions to block Telegraph…