People v. Andrews
| Citation | 85 Cal.Rptr. 908,6 Cal.App.3d 428 |
| Decision Date | 08 April 1970 |
| Docket Number | Cr. 7942 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Percy ANDREWS, Junius Rollins and Cornell Shaw, Defendants and Appellants. |
Steven L. Hallgrimson, San Francisco, for appellants.
Thomas C. Lynch, Atty. Gen. of State of Cal., Robert R. Granucci, Louis C. Castro, Deputy Attys. Gen., San Francisco, for respondent.
Following a jury trial, Percy Andrews, Junius Rollins and Cornell Shaw were convicted and sentenced to prison on two counts of second degree burglary. Each has appealed. The theory of the People was that the defendants, in concert, entered two roadside country stores with intent to 'tap cash register tills,' i.e., commit larceny, in violation of Penal Code section 459 proscribing burglary.
No contention is made that the evidence presented to the jury was insufficient to support the guilty verdicts. We therefore relate only such portions as we deem relevant to the contentions here made.
The first of defendants' victims, obviously anticipating such an offense, had placed a specially marked $5 bill in the cash register below other currency. This bill was among those taken by the men who tapped the till. The second of the two incidents followed the first by about a half hour. There, while the clerk's attention was diverted from the open cash register drawer, he heard the click of the 'hammer that holds down the money.' Turning around quickly he saw defendant Andrews with 'both hands full of money.' Thereupon the three men made a hasty departure. The clerk observed the license number of their departing car and then reported the crime and the license number to the police.
Soon after, defendants' car was stopped by a highway patrol officer to whom a report of the crime and license number had been transmitted. Moments later the victim of the second offense arrived with other policemen, including the police chief. Andrews, Rollins, and Shaw were identified by him as the men who had been in his store. They were thereupon arrested with a fourth person, the driver, charges against whom were later dismissed.
Following the arrests the police chief removed a jacket containing some exposed currency from the car. Observing its removal defendant Shaw exclaimed: 'That's my jacket and my money.' With the money, although unnoticed at the time, was the marked $5 bill.
The defendants and the driver were taken to the county jail. The automobile was impounded and taken to a 'storage area' where the officers proceeded to inventory the car's contents. While taking the inventory the trunk of the car was opened. In it were found 'hundreds' of unused small items, such as paint brushes, cards of buttons, greeting cards, napkins, light bulbs, razor blades, scotch tape and beer cans. The police had no search warrant.
Evidence produced at the trial indicated that 'till tappers,' including those who victimized the stores in this case, use a certain technique. A purchase of small value is made which results in the cash register drawer being opened. Then by some means, usually a pretended change of mind on the purchase, or a new purchase, the clerk's attention is distracted from the cash counter at which time an accomplice reaches into the till and extracts the larger bills. In the course of this practice 'till tappers' will accumulate large quantities of diverse merchandise of little value.
On their appeal defendants make no contention that their arrests or the initial search of their automobile was in any way unlawful. Their argument is that 'the admission into evidence of the items from the Trunk' was violative of Fourth Amendment standards. They contend this evidence was prejudicial, which undoubtedly it was. But the first question before us is whether its admission was error.
The People respond that the incriminating evidence was properly seized after it had been observed during the course of a legally permitted inventory of the car's contents. Alternatively, they insist that considered as a search it was also proper, since it was incidental to defendants' lawful arrest, and there was reasonable cause to believe that the vehicle contained evidence of their recently committed crimes. We proceed to a consideration of the first of these contentions.
Our study of the pertinent statutory and case authority indicates to us that the basis or justification of the common police automobile inventory arises out of a concept widely different from that which upon 'probable cause' permits a vehicle's search. 1
It is to the 'inventory' concept that we now direct our discussion.
There is little doubt that law enforcement authorities under certain conditions have the right, and often the duty, to impound a motor vehicle.
Vehicle Code sections 22650, 22651 and 22850 2 allow peace officers to remove unattended automobiles from public highways to places of storage under many circumstances; one of these circumstances (Veh. Code, § 22651, subd. (h)) is 'When an officer arrests any person driving or in control of a vehicle for an alleged offense and the officer is by this code or other law required or permitted to take and does take the person arrested before a magistrate without unnecessary delay.'
The United States Supreme Court in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067, accepted as valid a police regulation authorizing an officer to impound a motor vehicle following the driver's arrest for robbery. The same court in Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, where Cooper was arrested on a narcotics charge, found a police right to seize and impound his car. The court said (p. 61, 87 S.Ct. p. 791),
California's appellate courts have also recognized the right of police, under proper circumstances, to impound a car. In People v. Williams, 67 Cal.2d 226, 60 Cal.Rptr. 472, 430 P.2d 30, where, upon defendant's arrest for burglary, police took his car to a storage garage, the court expressed no disapproval. And in People v. Roth, 261 Cal.App.2d 430, 435--436, 68 Cal.Rptr. 49; Reople v. Garcia, 214 Cal.App.2d 681, 684, 29 Cal.Rptr. 609, and People v. Nebbitt, 183 Cal.App.2d 452, 460, 7 Cal.Rptr. 8, a police impoundment of the defendant's vehicle, after his arrest, was found to be proper in each case. In People v. Marchese, 275 A.C.A. 1135, 80 Cal.Rptr. 525, an unattended damaged car was found to have been properly removed for impoundment.
It is said that upon police impoundment of an automobile, the police undoubtedly become 'an involuntary bailee of the property and responsible for the vehicle and its contents' (People v. Roth, supra, 261 Cal.App.2d 430, 436, 68 Cal.Rptr. 49, 53; and see 7 Cal.Jur.2d, Bailments, § 31, pp. 408--411, generally relating to the responsibility of such a bailee). Having such a responsibility it has now been widely recognized that police may properly inventory the contents of cars rightfully in their custody. Such an inventory protects the owner of the vehicle from theft or other loss of its contents; it also protects the police or garage custodian from unfounded claims of loss of property. (See Cooper v. California, supra, 386 U.S. 58, 61--62, 87 S.Ct. 788, 17 L.Ed.2d 730; People v. Harris, 256 Cal.App.2d 455, 461, 63 Cal.Rptr. 849; People v. Garcia, supra, 214 Cal.App.2d 681, 684, 29 Cal.Rptr. 609; People v. Ortiz, 147 Cal.App.2d 248, 250, 305 P.2d 145.)
We review some of the principal authorities expressing approval of bona fide inventories of automobiles, conducted without the benefit of search warrants.
Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 1475, 20 L.Ed.2d 538, indicated constitutional disapproval of a vehicle search by police saying: 'In the instant case there is no indication that the police had purported to impound or to hold the car, that they were authorized by any state law to do so, or that their search of the car was intended to implement the purposes of such custody.' Harris v. United States, supra, 390 U.S. 234, 88 S.Ct. 992, 99 L.Ed.2d 1067, concerned the discovery of evidence, on the floor under a car door, in the taking of an inventory. The court approved a Court of Appeals conclusion 'to the effect that the discovery of the (evidence) was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody.' (P. 236, 88 S.Ct. p. 993.) In Cooper v. California, supra, 386 U.S. 58, pp. 61--62, 87 S.Ct. 788, p. 791, 17 L.Ed.2d 730, where police had impounded an automobile, the court said: 'It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.'
In People v. Williams, supra, 67 Cal.2d 226, 60 Cal.Rptr. 472, 430 P.2d 30, police took custody of a vehicle following the driver's arrest for burglary. An inventory of the car's contents revealed stolen property in its unlocked trunk. The court found no vice in the police conduct, saying (p. 229, 60 Cal.Rptr. p. 474, 430 P.2d p. 32), 'We further conclude that the subsequent inventory and seizure at the police impound 'should be deemed a continuation of the search lawfully begun at the time and place of arrest.''
People v. Superior Court, 2 Cal.App.3d 304, 309, 82 Cal.Rptr. 766, 770, in an irrelevant context, states, 'Evidence found in an 'inventory' preparatory to a 'proper impound' is not the result of a 'search. " The court in People v. Marchese, supra, 275 A.C.A. 1135, 80 Cal.Rptr. 525, found a police impound and inventory, following a 'drunk...
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