Ojeda v. Superior Court
| Citation | 91 Cal.Rptr. 145,12 Cal.App.3d 909 |
| Court | California Court of Appeals |
| Decision Date | 12 November 1970 |
| Parties | Peter Jess OJEDA, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF MONTEREY, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 28263. |
Harkjoon Paik, Monterey County Public Defender, Frank W. Dice, Deputy Public Defender, Salinas, for petitioner.
Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Jerome C. Utz, Deputy Attys. Gen., San Francisco, for respondent.
Petitioner, following a preliminary examination, has been charged in an information with possession of heroin and possession of narcotic paraphernalia in violation of sections 11500 and 11555 of the Health and Safety Code. By his petition for a writ of prohibition he seeks review of an order of the respondent court which denied his motion to suppress evidence. He claims that an uncorroborated police broadcast received by patrol officers in the field, which was unsubstantiated in court, was insufficient to establish reasonable cause for his arrest and the accompanying search and seizure of the evidence upon which the charges are based. An alternative writ of prohibition was issued and return has been made and hearing held thereon.
It is determined that irrespective of the propriety of the action of the officers in the field, the prosecution in presenting the fruits of such an arrest and search, is required to, and has failed to, produce evidence to show that the officer who originated the broadcast had reasonable cause to believe that the petitioner had committed a felony. The People's argument that the evidence shows that the arrest and attendant search may be justified by a right to detain for investigation, followed by corroborating circumstances, is likewise rejected for lack of proof of the nature and origin of the report giving rise to the claimed right to detain. It is further concluded that the proper relief for petitioner is by writ of mandate rather than prohibition.
At the hearing on the motion to suppress it was stipulated that the petitioner's arrest was effected without a warrant, that there was no search warrant for the vehicle involved, and that there was no warrant or search warrant for any other occupants of the vehicle. No new testimony was offered, and the motion was submitted on the transcript of the testimony taken at the preliminary examination.
At the preliminary examination the prosecution offered the testimony of a highway patrol officer who stopped and detained the vehicle driven by defendant, and of a Monterey County Deputy Sheriff who appeared on the scene, and placed the petitioner and others under arrest. From their testimony the following appears:
At some time prior to 4:45 p.m. on Feruary 10, 1970, the San Luis Obispo office of the California Highway Patrol broadcast a BOL (be on the lookout) for a vehicle of a description similar to the appearance of the station wagon which was ultimately stopped. This transmission was apparently picked up by patrolman Lukens, who allegedly reported to the Monterey office that he, in civilian clothes, was following the described vehicle northbound into Monterey County. As relayed by the Monterey office and received by the witness, patrolman Hagen, the broadcast indicated that a 1959 Chevrolet white-over-green station wagon with a designated license number, and occupied by four persons, was northbound from San Ardo followed by a highway patrol car and a patrolman in civilian clothes; and that the subject of the broadcast was wanted for robbery of a San Luis Obispo service station. The patrolman checked with the dispatcher to ascertain whether weapons were used in the reported robbery. His testimony concerning her answer is conflicting as to whether she answered that they were not, or that she did not know. A broadcast of similar import, which was made by the Monterey County communications radio in Salinas, was heard by the testifying sheriff, Garcia, at 5:05 p.m. This broadcast indicated it was unknown whether the suspect was armed or not.
Cross-examination of Garcia at the preliminary examination brought out that after the arrest and search he had been made aware that there was an error in the transmission of the reported crime somewhere between the San Luis Obispo police department and the highway patrol in San Luis Obispo County or Monterey County; that this error resulted in the offense being broadcast as a robbery when in fact it was actually perpetrated as a misdemeanor theft and that at the time of testifying, as distinguished from the time of the arrest when he relied upon the provisions of subdivision 3 of section 836 of the Penal Code, 1 he had no reason to believe that the petitioner had committed a robbery as had been originally reported.
Patrolman Hagen, followed by a second patrolman, King, proceeded south from King City to San Lucas and turned around to observe northbound traffic. Upon viewing a car answering the description, with four occupants, and a patrol car driven by patrolman Lukens from Ventura in plain clothes following it, he pursued and stopped the vehicle at 5:10 p.m. about a half mile north of San Lucas. The petitioner who was driving and his three companions were ordered out of the car by Hagen and the second patrolman. Hagen had petitioner place his hands on the top of the car and made a precautionary search for weapons. When patting petitioner down he felt something heavy and heard a clank upon hitting his left coat pocket. He put his hand in the pocket and discovered there was no weapon involved, but a large amount of quarters, nickels and dimes which he left in the pocket. 2
The patrolman felt a hard object in the petitioner's right front pants pocket, which upon examination proved to be not a weapon, but something all wrapped up. He put it back in the petitioner's pocket. The petitioner was handcuffed behind the back, and laid, standing, over the back of the trunk of the car. Hagen observed petitioner reaching his cuffed hands around to his front right pocket. The petitioner removed the package about halfway out of his pocket. The patrolman took it all the way out, placed it in the petitioner's left coat pocket, and laid him on top of it so he could not get it back out again.
Meanwhile, about three to five minutes after the stop, deputy sheriffs Garcia and Hall, who had heard Hagen's report that had stopped the suspect vehicle while en route to San Lucas, arrived on the scene. The patrolmen turned the suspects over to the sheriff's deputies in accordance with existing policy. (Cf. Pen.Code, § 830.1 with § 830.2.) Hagen told Garcia that petitioner had large amounts of money in his pocket, but said nothing concerning the contents of the package. Patrolman Lukens advised Garcia that the San Luis Obispo broadcast described the apparel of the suspect and indicated that there had been a large amount of money taken in the robbery.
Deputy Garcia concluded that the money was loot from the robbery and decided to take it into evidence right away. With the assistance of Officer King he removed and made an inventory of the contents of all of petitioner's pockets. All other items were first removed from petitioner's pockets, and then the coins and wad of bills were taken from the right hand coat pocket (see fn. 1 above). In the left hand coat pocket Garcia found the package which proved to be wrapped in plastic, like a sandwich bag, containing what felt like a spoon wrapped in a paper towel. The officer did not have any idea what was in it. On opening it he found a charred spoon, a makeshift syringe with a hypodermic needle at the end, and a packet containing a white-tan substance. The officer testified that the articles appeared to be a narcotics paraphernalia kit, and it was stipulated for the purposes of the preliminary hearing that the substance in the packet was heroin.
After the items were taken from petitioner's person and listed he was advised that he was being placed under arrest for investigation of robbery in San Luis Obispo, and for the charges giving rise to these proceedings.
As a general proposition a police officer is entitled to rely on information which reaches him through official channels. (People v. Terry (1970) 2 Cal.3d 362, 394, 85 Cal.Rptr. 409, 466 P.2d 961; People v. Lara (1967) 67 Cal.2d 365, 374, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Ross (1967) 67 Cal.2d 64, 70, 60 Cal.Rptr. 254, 429 P.2d 606 (reversed on other grounds 391 U.S. 470, 88 S.Ct. 1850, 20 L.Ed.2d 750): People v. Webb (1967) 66 Cal.2d 107, 112, 56 Cal.Rptr. 902, 424 P.2d 342; People v. Schader (1965) 62 Cal.2d 716, 722, 44 Cal.Rptr. 193, 401 P.2d 665; People v. Honore (1969) 2 Cal.App.3d 295, 299, 82 Cal.Rptr. 639; People v. Graves (1968) 263 Cal.App.2d 719, 736, 70 Cal.Rptr. 509; People v. Marquez (1965) 237 Cal.App.2d 627, 633, 47 Cal.Rptr. 166; People v. Estrada (1965) 234 Cal.App.2d 136, 152, 44 Cal.Rptr. 165; and People v. Schellin (1964) 227 Cal.App.2d 245, 251, 38 Cal.Rptr. 593.)
Nevertheless, it is now well established that 'although an officer may make an arrest based on information received through 'official channels,' the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony.' The distinction between the right to arrest in the field, and the subsequent justification of that arrest and the use of the evidence obtained...
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