People v. Stoner

• Decision Date: 26 June 1962
• Docket Number: Cr. 7753
• Citation: 205 Cal.App.2d 108,22 Cal.Rptr. 718
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Lyle STONER, Defendant and Appellant.

Page 718

22 Cal.Rptr. 718

205 Cal.App.2d 108

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Lyle STONER, Defendant and Appellant.

Cr. 7753.

District Court of Appeal, Second District, Division 2, California.

June 26, 1962.

Hearing Denied Aug. 22, 1962.

Anderson, Griffin & Massey, by Donald G. Griffin, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant was convicted of robbery in the first degree, was found to be an habitual criminal on the basis of two admitted priors, and was sentenced for the term prescribed by law. He bases his appeal on the contentions that certain evidence was obtained as a result of an unlawful search and seizure and that his confession, also in evidence, was not voluntary.

At about 8:00 o'clock in the evening on October 25, 1960, a robbery occurred at the Budget Town Food Market in Monrovia. Two men entered the store and ordered David Greely, a clerk, to put money in a sack. One of the men was holding a gun. They then ordered the clerk to lie on the floor, and ordered Donna May Ray, another employee, to lie on the floor next to him. They then departed with the money. Defendant was arrested a few days later in Las Vegas and subsequently confessed. His partner in crime, Peter Schales, was also apprehended and testified on behalf of the People. Defendant was identified as the man holding the gun by the two market employees.

The facts leading up to defendant's arrest, and on which the argument of illegal search is based, are as follows: Shortly after the robbery Greely called the police and described the robbers, describing the one holding the gun as being 35-40 years of age, about 5' 10r', wearing a gray shirt, a gray 'coat-sweater' and gray hat, horn-rimmed glasses, and as having a dark complexion. Officer Gilliland investigated the robbery and testified that the manager of the market gave him a checkbook, saying it had been found in the parking lot to the rear of the store shortly after the robbery. Defendant's name was in the checkbook. The officer called the Bank of America, checked the account number and found the account registered in defendant's name. Two of the check stubs referred to rent payments made to the Mayfair Hotel. Gilliland then went to the Pomona Police Department to see if defendant had a record. He discovered that defendant had a record of robbery and murder. He obtained a photograph of defendant and took it to the market to show the victims. They said that the photograph looked like the man that held the gun. He then continued his record check and at about 10:00 o'clock that night, October 27, he went to the Pomona Police Department with Officer Collins and discussed the Mayfair Hotel with two detectives and left with them and Officer Collins for the Mayfair at about 11:00 p. m. They entered the lobby, approached the night clerk, and asked about defendant. They were told he lived in the hotel in room #404, but that he was out. The clerk said he knew defendant was out because hotel regulations required that tenants' keys be placed in their mail boxes when they left the hotel, and defendant's key was in his box. The officers requested permission to enter the room, explaining that they wished to make an arrest of a man who had possibly committed a robbery. The clerk stated, 'In this case, I will be more than happy to give you permission and I will take you directly to the room.' They went to defendant's room, the night clerk placed the key in the lock, unlocked the door and said, 'Be my guest.' The officers entered the room and observed a pair of horn-rimmed glasses on a desk. On closer examination they resembled the glasses described by the victims as having been worn by the man holding the gun. They then began a systematic search and noted that certain clothing in the room was 'along the same description' as given by the victims. Officer Collins, in pulling out the bottom drawer of the bureau, found a gun lying on the floor, together with some bullets wrapped in toilet paper. Following the search they maintained an observation 'of the room or in the room' until approximately noon the following day, October 28, but no one arrived except other detectives. Defendant was picked up in Las Vegas about noon on October 29, 1960. The Monrovia officers then departed for Las Vegas. Defendant waived extradiction and was returned to Pomona on October 31, 1960.

It is on this testimony that defendant rests his contention that the items found in his room should have been excluded from evidence as having been illegally obtained. His first argument is that the officers had time to procure a search warrant, and their failure to do so made the search illegal. In support of this contention defendant merely points out that the robbery took place on October 25 and the search on October 27. He completely ignores the fact that the interval was used for investigation to pin down defendant as a suspect. Furthermore, it is conclusively established in this State that the failure to obtain a warrant, even though there be time to do so, does not make unreasonable an otherwise reasonable search. (People v. Winston, 46 Cal.2d 151, 293 P.2d 40; Lorenzen v. Superior Court, 150 Cal.App.2d 506, 510-511, 310 P.2d 180; People v. Dominguez, 144 Cal.App.2d 63, 65, 300 P.2d 194.)

Defendant's second argument is that the search cannot be justified as being incidental to an arrest, although he concedes, arguendo, that there was good cause to suspect that defendant was one of the robbers and that the officers 'probably' had good cause to suspect that the room contained evidence. His argument is based on the fact that the clerk told the officers that defendant was not in his room (and therefore they could not have gone to his room to arrest him, but merely to search) and the fact that defendant was arrested approximately thirty-six hours after the search took place. These arguments are not persuasive.

In People v. Luna, 155 Cal.App.2d 493, 318 P.2d 116, officers received information from an informant that he had just purchased narcotics from the defendant in the latter's apartment. They went there, knocked on the door and received no response. They forced entry and found narcotics. They waited until defendant returned and took him into custody. The opinion states that in view of the information which the officers had they could reasonably infer that appellant was there and refusing to answer. Under the circumstances it cannot be contended that a search prior to arrest was other than incidental thereto. At page 495, 318 P.2d at page 117 it was said: 'In such cases 'the important considerations are whether the officer had reasonable cause before the search to make an arrest and whether the search and any seizures incident thereto were or were not more extensive that would reasonably be justified as incident to an arrest. * * *' (People v. Simon, 45 Cal.2d 645, 648, 290 P.2d 531.) '* * * it has been held that it is not significant whether the search precedes or follows the arrest.' (Id. Cal.2d at page 648, 290 P.2d at page 533.)'

People v. Vice, 147 Cal.App.2d 269, 305 P.2d 270, presents a factual situation somewhat similar to ours. In that case the officers having reasonable cause to make an arrest went to defendant's hotel, knocked on his door and receiving no reply they entered when an employee of the hotel opened the door with a key. Defendant was arrested a half hour later in a different part of town. He was subsequently convicted on the basis of evidence found in his hotel room prior to his arrest. At page 273, 305 P.2d at page 272 the opinion states: 'Recent authorities hold that in order for a search and seizure to be valid it is not necessary that the arrest precede the search and seizure. If the search and seizure are part of the same transaction, the search and seizure may occur prior to the arrest.' And at page 274, 305 P.2d at page 273: 'In the instant case, although the seizure of the narcotics preceded the arrest of the appellant by a half hour or so, nevertheless the arrest and the seizure were part of one single transaction. Though he was not present in the room at the time the officers arrived they went there for the specific purpose of arresting him. The finding of the narcotics by the officers after entering the room was not needed in order to make a valid arrest. The arrest was made upon the basis of information supplied by two known, reliable informants, and the arresting process began when the officers first went to the appellant's hotel room. The three officers, Inspectors House, Best and Murphy, were acting together.' (Emphasis added.)

In People v. Williams, 189 Cal.App.2d 29, 11 Cal.Rptr. 43, defendant was convicted of robbery and burglary. The police, having probable cause to make an arrest and search, entered defendant's room in his absence and discovered evidence which was used at the trial. Defendant was not arrested until four hours later when he returned to the apartment. It was held that the search was incidental to the arrest.

In People v. Baca, 184 Cal.App.2d 693, 7 Cal.Rptr. 864, the officers had reasonable ground to make an arrest and to assume that contraband was on defendant's premises. However, since defendant had been observed leaving his apartment, the officers knew that he was not there. Nevertheless they entered his apartment and obtained evidence that was used at the trial. Defendant was arrested 20 minutes later. At page 699, 7 Cal.Rptr. at page 867 of the opinion the court said: 'Rudy complains that the officers entered and searched his home without a search warrant, prior to his own arrest, and at a time when they knew he was not there. As previously pointed out, it is not significant whether the search precedes or follows the arrest provided they are part of the same transaction. People v. Vice, supra; People v. Simon, surpa. In such...