People v. Koelzer

• Decision Date: 01 November 1963
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Paul KOELZER and Harry P. Koelzer, Defendants and Appellants. Crim. 3444.
• Court: California Court of Appeals Court of Appeals

Page 718

34 Cal.Rptr. 718

222 Cal.App.2d 20

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Paul KOELZER and Harry P. Koelzer, Defendants and Appellants.

Crim. 3444.

District Court of Appeal, Third District, California.

Nov. 1, 1963.

Hearing Denied Dec. 30, 1963.

John C. Weidman, Placerville, for appellants.

Stanley Mosk, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and R. M. Momboisse, Deputy Atty. Gen., Sacramento, for respondent.

PIERCE, Presiding Justice.

On this appeal by both defendants from judgments of second degree of burglary after a jury trial and conviction, the sole contention is that defendants were convicted through the admission of evidence discovered and obtained by an illegal search of a motor vehicle.

Appeals were also taken from the orders (1) denying probation and (2) denying defendants' motions for new trial. Said orders are nonappealable.

The search of defendant, Harry Koelzer's automobile occurred after, and during a chain of events which included an arrest of both defendants. The arrests were under warrants but the warrants were on misdemeanor charges, towit: traffic violations. The arrests were made at night, and from the record it does not appear that any magistrate had directed a night arrest. No traffic violation was being committed when the arrests were made. Therefore these arrests did not comply with Penal Code, section 840. ¹ Moreover, this court has held that, in the absence of other suspicious circumstances, a search made of an automobile without a search warrant may not be justified by an arrest for a traffic violation. (People v. Molarius, 146 Cal.App.2d 129, 303 P.2d 350, hearing by Supreme Court denied.) Defendants were not in the automobile when the arrests were made. It was parked, as the facts hereinafter related will show, at a point some distance from the point where the arrests were made and the search was not contemporaneous with said arrests. Therefore the legality of the search cannot be justified by the traffic violation arrests. (Tompkins v. Superior Court, 59 A.C. 75, 77, 27 Cal.Rptr. 889, 378 P.2d 113.)

In fact, the Attorney General does not contend that the validity of the search and resultant seizure can depend upon the preceding arrests; he concedes that it cannot. But defendants were also arrested for possession of burglary tools and the Attorney General's position is that the series of steps which led to an ultimate search of the automobile, the seizure of evidence and to the arrest of defendants for suspicion of burglary was divorced from, and irrelevant to, the arrest for traffic violations; and that the search which produced the latter arrest was legal because it was the culmination of an investigation reasonably and lawfully carried on by the officers in a proper performance of their duties. The following statement of facts and review of the law applicable thereto will, in our opinion, establish that this position is sound.

On May 29, 1962, a market in Davis, Yolo County, was burglarized, entry having been made by the burglars via a hole drilled through the roof. A safe had been opened and approximately $4,400 stolen. Later at the trial it was proved by the testimony of a criminologist that a wrecking bar admittedly owned by defendant Harry Koelzer contained vestiges of paint identified with that of the safe at the market which had been broken open; also that in a similartype burglary of a market in Carmichael, bolt cutters like those belonging to said defendant had been used to cut through a lock and hasp.

The wrecking bar and bolt cutters were introduced in evidence over defendants' objection. There is other substantial evidence in the record (including a perhaps ambiguous extrajudicial admission by Harry), but an appellate court would have to say that without the objected to evidence obtainment of a conviction would have been doubeful. Therefore, affirmance or reversal rests upon determination of the question of the admissibility of this evidence. The following sequence of events led to its discovery:

At approximately 12:15 A.M. on the morning of May 31, 1962, two police officers in a prowl car with headlights turned off emerged from the alley onto 17th Street between R and S Streets in the City of Sacramento. They observed the two defendants peering into the front window of a radio shop at 1821 17th Street, neither a downtown nor general neighborhood shopping center. When the officers turned on their lights, the defendants started to walk away from the store. The policemen stopped their car near defendants, got out and asked defendants for identification. There is nothing in the record to indicate the officers connected defendants with the Yolo County burglary or even knew it had been committed. Their suspicions were aroused only because of the circumstances just described. Defendant Donald Koelzer informed the officers he had left his wallet at home on a dresser. Defendant Harry Koelzer produced a driver's license showing his home address on Barindo Drive in the northern area, five miles away from 17th, R and S Streets. Harry confirmed that that was his address. Donald asserted he was also staying there. Asked what they were doing at midnight without means of transportation so far away from their home, Harry asserted they were taking a walk.

The officers by radio check with police headquarters ascertained there were traffic warrants outstanding for both defendants--eight for Harry, one for Donald. The men were told they were under arrest.

Still suspicious of defendants' burglarious intentions, however, the officers continued the investigation. A search of the persons of both revealed that Harry had a pair of blue plastic gloves, and a Volkswagen key, Donald a flashlight, a pair of brown cotton gloves and electricians' wirecutting pliers. Regarding the gloves, Harry stated they had been cleaning bricks (a home project). The gloves, however, were innocent of brick dust or other evidence of such usage. Further questioned as to their reason to be out walking five miles from home, Harry stated he had been 'chippying around,' visiting a girl friend and that Donald had been with him. When asked the name and address of this woman, Harry stated she was Ellen and that she lived at an apartment house on 26th Street and Second Avenue. (This is 19 blocks from the point where defendants had been found 'walking.')

Defendants were taken by the officers out to the address stated to check this story. Although the apartment house was there, its occupants included no Ellen and the story was demonstrably fiction.

The police had asked if either defendant had a car. Harry said that he owned a white Cadillac, but that it was at home and disabled; that they had taken a cab to 'Ellen's' apartment.

Returning from Second Avenue and approaching 17th Street, while driving down S Street (one-half block from the store where defendants had first been seen), the officers noticed a white Cadillac. They stopped to determine whether it was Harry's and found it was not. They then noticed a Volkswagen flatbed pickup parked nearby and one of the officers remembered the Volkswagen key on Harry's person. Harry denied that automobile was his, but at the officer's request he produced the key which fit the door of the pickup, also the ignition lock. Harry then admitted ownership.

The officers then observed in plain view the following: In an open-front glove compartment a wallet (this turned out to be Donald's--thus belying his story that his identification had been left at home); in the cab a radio transmitter and walkie-talkie radio; on top of a canvas tarp covering the bed of the pickup, a pair of large-sized bolt cutters; also on top of the tarp an open canvas bag containing another walkie-talkie radio, a keyhole saw, a drill and bits. The officers then lifted the tarp and discovered a multitude of heavy tools, including welding equipment, sledge hammers, punches, bits, braces and wrecking bars, one of which, as stated above, was later discovered to contain chips of paint identified as that matching the marred paint of the burglarized safe.

When asked if the tools belonged to him, Donald stated: 'They probably do, but see me in the morning, I'm too sleepy tonight.' Asked the same thing, Harry counter-questioned: 'Well, am I under arrest?' And when informed that he was he said, 'I have nothing to say.' Harry had theretofore described himself as a salesman of Wearever aluminum. Such an occupation did not, of course, explain the equipment. It did suggest professional burglary and safe-cracking.

Defendants were then taken to the police station and booked for possession of burglary tools and for traffic violations. At the trial a witness for the people, a police officer, testified that Harry, when asked who had been the instigator of the burglary, replied that 'he was just as much to blame as his brother.'

The foregoing recital convinces us that the search of defendants' motor vehicle was not at all the 'fruit' of the traffic violation arrest, but of justified suspicion that defendants had committed, or were contemplating or about to commit, a burglary of the radio shop, suspicion reasonably engendered and give downhill-snowballing growth as questioning continued, with falsehoods added upon falsehoods, and, finally, as the investigation proceeded, suspicion which was solidified with the discovery of two walkie-talkie radios and a kit of burglars' tools in plain...