People v. Mickelson

• Citation: 59 Cal.2d 448,30 Cal.Rptr. 18,380 P.2d 658
• Decision Date: 18 April 1963
• Docket Number: Cr. 7295
• Court: United States State Supreme Court (California)
• Parties: , 380 P.2d 658 The PEOPLE, Plaintiff and Appellant, v. Curtis Ray MICKELSON, Defendant and Respondent.

Page 18

30 Cal.Rptr. 18

59 Cal.2d 448, 380 P.2d 658

The PEOPLE, Plaintiff and Appellant, v. Curtis Ray MICKELSON, Defendant and Respondent.

Cr. 7295.

Supreme Court of California, In Bank.

April 18, 1963.

Rehearing Denied May 14, 1963.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Harry Wood, and Harry Sondheim, Deputy Dist. Attys., for plaintiff and appellant.

Gladys Towles Root and Eugene V. McPherson, Los Angeles, for defendant and respondent.

TRAYNOR, Justice.

Defendant was charged in two counts of an information with committing burglaries of telephone booths, in violation of Penal Code, section 459. His motion to set aside the information was granted (Pen.Code, § 995), and the People appeal. The Attorney General concedes that there was no evidence at the preliminary hearing to support count I and seeks a reversal only as to count II.

A Burbank police officer discovered the physical evidence supporting count II in the course of searching an overnight bag found funder the front seat of an automobile in which defendant had been riding and which Don Zauzig had been driving. The bag contained $85.90 in nickels, dimes, and quarters. At defendant's preliminary hearing, the bag and its contents were introduced in evidence, and Zauzig testified to his and defendant's commission of the burglary. Zauzig's arrest and his availability as a witness were direct results of the search that disclosed the physical evidence of the burglary. If that search was illegal, neither the physical evidence nor Zauzig's testimony is competent to support the information. (Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319; Weiss v. United States, 308 U.S. 321, 330-331, 60 S.Ct. 269, 84 L.Ed. 298; Nardone v. United States, 308 U.S. 338; 341, 60 S.Ct 266, 84 L.Ed. 307; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 417, 9 L.Ed.2d 441; People v. Berger, 44 Cal.2d 459, 462, 282 P.2d 509; People v. Dixon, 46 Cal.2d 456, 458, 296 P.2d 557; People v. Schaumloffel, 53 Cal.2d 96, 101-102, 346 P.2d 393; People v. Ditson, 57 Cal.2d 415, 439, 20 Cal.Rptr. 165, 369 P.2d 714.)

The Attorney General contends, however, that the arresting officer had reasonable cause to arrest Zauzig for a recent robbery in the neighborhood and that the search of the car was therefore justified as incidental to the arrest. Before the decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, we were free to determine such an issue under the California decisions setting forth the rules governing police investigations and arrest. In view of the holding in that case that the Fourteenth Amendment requires state courts to exclude unconstitutionally obtained evidence, we must determine at the outset whether the federal rules governing police investigations and arrests have superseded our own. There are significant differences between the respective rules that are relevant to this case.

In Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134, the United States Supreme Court held that an arrest occurs when an automobile is stopped during the course of a criminal investigation, and if the officer does not have reasonable cause to arrest the occupant at that time, the arrest is unlawful. Anything the officer learns as a result of stopping the automobile is inadmissible in evidence and cannot justify a search. (See also Brinegar v. United States, 338 U.S. 160, 166, 69 S.Ct. 1302, 93 L.Ed. 1879; Rios v. United States 364 U.S. 253, 261-262, 80 S.Ct. 1431, 4 L.Ed.2d 1688.) In this state, however, we have consistently held that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning. If the circumstances warrant it, he may in self protection request a suspect to alight from an automobile or to submit to a superficial search for concealed weapons. Should the investigation then reveal probable cause to make an arrest, the officer may arrest the suspect and conduct a reasonable incidental search. (People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531; People v. Martin, 46 Cal.2d 106, 293 P.2d 52; People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57; People v. Beverly, 200 Cal.App.2d 119, 125, 19 Cal.Rptr. 67; People v. King, 175 Cal.App.2d 386, 390, 346 P.2d 235; People v. Anushevitz, 183 Cal.App.2d 752, 755, 6 Cal.Rptr. 785.)

The Mapp case did not determine whether or not the states must follow all the federal rules. Neither did Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, which on this matter held only that the conduct of state officers would be measured against the federal rules when state-secured evidence was offered in federal prosecutions.

A state rule governing police procedure is not unconstitutional merely because it permits conduct in which a federal officer may not lawfully engage. The Fourth Amendment ¹ itself sets forth no more than the basic outlines of lawful law enforcement. It becomes meaningful in specific situations only by reference to the common law and statutory law governing the issuance of warrants, the authority of officers, and the power to arrest. Illegally obtained evidence may be excluded by the federal courts for various reasons. It may be excluded because it was obtained in a way that could not constitutionally be authorized. It may be excluded because it was obtained in violation of a federal statute or a common-law rule or a state rule applicable to federal officers. It may be excluded by virtue of the Supreme Court's monitorship of the federal administration of criminal justice. (Fed.R.Crim.Proc. 3, 4, 26, 41; 18 U.S.C.App., pp. 3407-3452 (1958).)

The United States Supreme Court has not interpreted the Fourth Amendment as requiring that Court to lay down as a matter of constitutional law precise rules of police conduct. Indeed, its rule allowing a search by a federal officer without a warrant as incident to a lawful arrest permits reference to state law to determine the validity of the arrest. (Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 92 L.Ed. 436; United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210.) Accordingly, before a state rule governing police conduct may be struck down, it must appear that neither Congress nor a state legislature could authorize it. If a state adopts rules of police conduct consistent with the requirements of the Fourth Amendment and if its officers follow those rules, they do not act unreasonably within the meaning of the amendment although different rules may govern federal officers.

We do not believe that our rule permitting temporary detention for questioning conflicts with the Fourth Amendment. It strikes a balance between a person's interest in immunity from police interference and the community's interest in law enforcement. It wards off pressure to equate reasonable cause to investigate with reasonable cause to arrest, thus protecting the innocent from the risk of arrest when no more than reasonable investigation is justified. (See Barrett, Personal Rights, Property Rights, and The Fourth Amendment, 1960 Sup.Ct.Rev. 46, 65-66, 69-70.)

The United States Supreme Court apparently concluded that the situations presented in the Henry, Rios, and Brinegar cases allowed no middle ground (see dissenting opinion of Jackson, J. in Brinegar v. United States, 338 U.S. 160, 183, 69 S.Ct. 1302, 93 L.Ed. 1879), and hence that he officers were not justified in stopping the defendants' automobiles unless they had probable cause to make arrests. It does not follow that is conclusion was constitutionally compelled. Given the absence of legislation, the Court had to articulate the governing rule and enforce compliance with it. It did not thereby foreclose Congress or the states from articulating other reasonable rules consistent with the Fourth Amendment.

It remains to determine whether the search in this case complied with the rule of this state. The arresting officer testified that he arrested defendant and Zauzig shortly before 2 a. m. about 20 minutes after he had gone to a market on San Fernando Road where a robbery had just been reported. He was told by other officers at the market that the robber was a fairly tall white man of large build with dark hair who was wearing a red sweater and armed with a .45 automatic. The officer searched the area on foot for...