People v. Gardner
Decision Date | 05 July 1967 |
Docket Number | Cr. 5602 |
Citation | 252 Cal.App.2d 320,60 Cal.Rptr. 321 |
Court | California Court of Appeals Court of Appeals |
Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Marvin Eugene GARDNER, Defendant and Appellant. |
L. V. Brown, Jr., San Carlos, for appellant (under appointment of the Court of Appeal).
Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, Michael Buzzell, Deputy Attys. Gen., San Francisco, for respondent.
This is an appeal by defendant from a judgment of conviction for two counts of armed robbery. We have concluded that there is no merit to his sole contention that certain evidence was inadmissible on the basis that it was obtained as a result of an illegal search and seizure.
The pertinent factual background of the instant case is as follows: Michael O'Neal testified that on September 13, 1965 he was employed at the Regal Gas Station at Third and Thomas Streets in San Francisco; that at 11:40 p.m., while he was in the station office checking his receipts, a Negro man wearing a mustache and dressed in an Army green uniform with a green cap appeared at his side and asked for a package of Camel cigarettes; that O'Neal initially replied that the station was closed; but that when O'Neal noticed the butt of a gun in the man's pocket, O'Neal told the man that he would see about obtaining the cigarettes; that the man then asked O'Neal whether O'Neal had noticed the weapon, O'Neal replying that he had; that the man then told O'Neal to hand over all the big bills; that O'Neal complied with this order, giving the man $161 in currency; that the man then left, warning O'Neal not to follow; and that O'Neal then reported the incident to the police.
John Bell testified that on September 14, 1965 he was employed at the Regal Gas Station at Third and Galvez Street in San Francisco; that at approximately 1:40 a.m. a man wearing an Army field jacket, green Army field hat, glasses, and a trimmed mustache approached him at the station and asked him for a package of Camel cigarettes; that Bell entered the office to get the cigarettes for the man; that the man then told Bell to open the cash register; that Bell did not comply initially, but when he saw the butt of a pistol in the man's right pocket, he opened the drawer and gave the man $25 or $26; that when the man received this money he asked Bell whether there was any more, Bell replying that that was all the money there was; that the man then asked for a carton of Camels and of Pall Malls, which Bell gave him; and that the man then left, telling Bell not to follow him. Bell further testified that after the man had left the gas station Bell got into his car and drove around the block; that he saw a man dressed with the same clothing as the person who had robbed him parked in a yellow Chevrolet with a green top; that the man started the car and drove away; that Bell followed him for several blocks where he was able to get a closer look at the car and to copy down the license number as CSW 711; that Bell then contacted a police patrol car and reported the incident to the police.
Officer Garrett Griffin of the San Francisco Police Department testified that at approximately 1:50 a.m. on September 14, 1965, while he and his partner were on duty in the vicinity of Third and Galvez Streets, they received a call on their radio that a robbery had just been committed in that neighborhood; that the suspect was described as a Negro male, 40 to 45 years old wearing fatigue clothing, a hat and glasses, and carrying a gun; that according to this report the suspect had escaped in a 1953 yellow Chevrolet bearing the license CSW 711; that a few minutes after receiving this radio report and while driving towards the freeway, Griffin and his partner observed a yellow Chevrolet with a green top bearing the license CSW 711; that the officers stopped the vehicle and upon observing that the driver was a male Negro wearing fatigue clothes, Griffin and his partner approached the car and brought defendant, the driver, out at gunpoint; that a search of defendant's car revealed a loaded gun on the floor below the driver's seat and a carton each of Camel and Pall Mall cigarettes on the front seat next to the driver; and that a search of defendant's coat and pants revealed $161 in currency.
At the trial both Bell and O'Neal identified defendant as the person who had perpetrated the robbery to which each testified.
In making the argument that the gun and cigarette cartons which were discovered in his car and the $161 in currency which was found in his pocket were the product of an illegal search and seizure, defendant takes the position that the officers lacked probable cause to arrest him. This contention is premised upon the assertion that defendant's arrest took place prior to the discovery of the gun and cigarette cartons in his car, and that therefore the sole basis for his arrest consisted of the information which the officers had received via their police radio, this information consisting of a description of defendant and the vehicle which he was driving. Since the record is not clear as to whether Officer Griffin and his partner observed the gun and cigarettes in defendant's car prior to making the arrest, 1 which circumstances could have been considered by the trial court in determining whether the officers had probable cause to arrest defendant, we proceed to consider defendant's contention on the assumption that the officers arrested defendant prior to their discovery of these items.
In People v. Talley, 66 A.C. 363, 368--369, 56 Cal.Rptr. 492, 496, 423 P.2d 564, 568, the principles applicable to an arrest without a warrant were stated as follows: (See also People v. Fischer, 49 Cal.2d 442, 446, 317 P.2d 967; People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577.)
Further principles applicable to the concept of probable cause are as follows: (Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879; see People v. Schader, 62 Cal.2d 716, 722, 44 Cal.Rptr. 193, 401 P.2d 665.) In determining whether there is probable cause, each case must necessarily be decided upon its own facts and circumstances, or, as stated by some of the cases, 'on the total atmosphere of the case.' (See People v. Ingle, supra, 53 Cal.2d p. 412, 2 Cal.Rptr. p. 17, 348 P.2d p. 580; People v. Cedeno, 218 Cal.App.2d 213, 220, 32 Cal.Rptr. 246; People v. Esters, 220 Cal.App.2d 917, 920, 34 Cal.Rptr. 264; People v. Hillins, 173 Cal.App.2d 88, 93, 343 P.2d 174.)
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