People v. Baker
| Decision Date | 21 October 1970 |
| Docket Number | Cr. 7920 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. George BAKER, Defendant and Appellant. |
Neal L. Petersen, San Francisco (Court-appointed), for appellant.
Thomas C. Lynch, Atty. Gen., Robert R. Granucci, John F. Henning, Jr., Deputy Attys. Gen., San Francisco, for respondent.
Defendant has appealed from a judgment convicting him of possessing a restricted dangerous drug in violation of section 11911 of the Health and Safety Code, and of possessing a concealable weapon after having suffered a prior felony conviction, in violation of section 12021 of the Penal Code. He was sentenced to state prison on the second charge, and to the county jail for one year on the first, the latter sentence to run concurrently with the former, and both sentences to run concurrently with a then existing state prison sentence from another county which the defendant was then serving. The convictions followed defendant's pleas of guilty which were entered after the denial of his motion to suppress evidence as to both counts. The appeal is authorized by subdivision (m) of section 1538.5.
Defendant contends that his constitutional rights were violated by the search and seizure and introduction into evidence of the contents of a locker at a bowling alley, and that his subsequent arrest and the search of his person was not warranted. It is concluded that police observation of the contents of a handbag stored in the locker after they had been requested to examine its contents by the manager of the bowling alley who had observed a weapon and what was believed to be packets of contraband in the handbag, and the seizure of the weapon were reasonable under the circumstances; and that in any event, if improper, those actions did not taint the subsequent frisk, discovery of a second weapon, arrest, and further search of the defendant which resulted in the disclosure of further packets of contraband, and the seizure of what had theretofore been observed.
The motion to suppress was submitted on the record of the preliminary examination which consists solely of the testimony of the arresting officer.
Over the objection of the defendant, the officer was permitted to testify that the manager of the bowling alley had told him that an attendant at the bowling alley had observed a party who placed packets of white powder and a gun in a handbag in a locker at that bowling alley. The manager told the officer that the suspect had been described as a white male in his thirties.
The manager advised the officer that he had a key to the locker; that he had seen the contents of the locker; and that it did contain packets of white powder and a gun in a handbag. From the officer's testimony it appears that this information was communicated to the Ingleside police station, that two plainclothes officers were sent to investigate and stake out the bowling alley, that the contents of the locker were viewed by those officers, and that later they told the testifying officer what they had seen.
The witness, a member of the Narcotic Bureau of the San Francisco Police Department, was requested to go to the scene by a captain of the Ingleside police station who imparted some of the foregoing information to him. On his arrival at the bowling alley, several hours after the other officers, they told him that they had seen a gun, white powder, and some other things in the locker. The manager gave him similar information, and the witness asked him to confirm it. The manager opened the locker and brought out the bag. The testifying officer opened it in the manager's office and ascertained that it contained an Ally standard model .22 calibre long pistol, seven plastic bags containing a white powder, which subsequently proved to be desoxyephedrine, a restricted dangerous drug, and miscellaneous papers, hunting knives, a cartridge container, various spoons, needles and syringes, and a whetting stone.
The officer requested the manager's cooperation, and the contents, minus the gun, were placed back in the locker. The locker was not coin operated like those available to the public at a bus station, but was of a type common to bowling alleys for the storage of a bowler's bowling ball and sports equipment. The testifying officer and the two plainclothesmen commenced a stakeout which culminated about one-half an hour later when the defendant opened the suspected locker with a key, removed the handbag, closed the locker and started to walk out.
The witness told the defendant, The defendant made a motion to his waistline. He was stopped and the officer advised the defendant of his constitutional rights and searched him for weapons. This search revealed an unloaded Colt pistol concealed in the defendant's waistband, and, in his shirt pocket, two packets, one of which was larger than the other, containing a white powder which proved to be the same restricted dangerous drug as was found in the packets in the handbag.
The record does not indicate whether the charges of which the defendant was convicted by his pleas of guilty were predicated upon his possession of the dangerous drugs and weapon which had been observed in the handbag which he subsequently removed from the locker, or upon the possession of similar articles found upon his person at the time of his arrest. 1 Although separate considerations may govern the officer's actions with respect to the two sources of contraband, the interrelationship of those actions under the particular facts of this case renders all the articles admissible and it is unnecessary to further dissect the basis of the conviction.
The protection against unreasonable searches and seizures which is afforded the defendant by the Fourth Amendment of the United States Constitution extended to the locker which he rented. This protection also covered the handbag which he stored in that locker. (See, United States v. Brown (D.C., N.H.1969) 300 F.Supp. 1285, 1288; People v. McGrew (1969) 1 Cal.3d 404, 409, 82 Cal.Rptr. 473, 462 P.2d 1; Abt v. Superior Court (1969) 1 Cal.3d 418, 420, 82 Cal.Rptr. 481, 462 P.2d 10; People v. Cruz (1964) 61 Cal.2d 861, 866-867, 40 Cal.Rptr. 841, 395 P.2d 889; and People v. Egan (1967) 250 Cal.App.2d 433, 436, 58 Cal.Rptr. 627.)
The test is whether "*** the Government's activities *** violated the privacy upon which he justifiably relied" while using the locker. (See, Katz v. United States (1967) 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576; Corngold v. United States (9 Cir. 1966) 367 F.2d 1, 7; United States v. Small, supra, 297 F.Supp. 582, 584-585; People v. McGrew, supra, 1 Cal.3d 404, 409-410 and 412, 82 Cal.Rptr. 473, 462 P.2d 1; People v. Edwards (1969) 71 A.C. 1141, 1148-1150, 80 Cal.Rptr. 633, 458 P.2d 713; People v. Marshall (1968) 69 Cal.2d 51, 58-59, 69 Cal.Rptr. 585, 442 P.2d 665; Kirby v. Superior Court (1970) 8 Cal.App.3d 591, 595, 87 Cal.Rptr. 577; Swan v. Superior Court (1970) 8 Cal.App.3d 392, 396, 87 Cal.Rptr. 280; People v. Superior Court (1969) 275 A.C.A. 543, 548, 79 Cal.Rptr. 904.)
Evidence, albeit hearsay, was produced to show that the gun and the packets of powder had been exposed outside of the handbag and locker to the view of an employee of the bowling alley. It is unnecessary to consider the propriety of the court's ruling in sustaining the objection of the defendant to this evidence on the issue of probable cause (it was hearsay once removed and of questionable competency), because the officer was entitled to rely upon the manager's observation from the latter's personal search. It is immaterial whether the manager had probable cause to examine the locker and the contents of the handbag stored in it. The protection against unlawful searches and seizures applies to govermental action and does not prevent the use as evidence of that which was observed or taken as the result of a search or seizure by a private citizen without governmental complicity. (See, Burdeau v. McDowell (1921), 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048; Wolf Low v. United States (9 Cir. 1968) 391 F.2d 61, 63; Gold v. United States (9 Cir. 1967) 378 F.2d 588, 590-591; United States v. Small, supra, 297 F.Supp. 582, 585; People v. Superior Court (1969) 70 Cal.2d 123, 128-129, 74 Cal.Rptr. 294, 449 P.2d 230; People v. Superior Court, supra, 3 Cal.App.3d 648, 659-660, 83 Cal.Rptr. 732; In re Donaldson (1969) 269 Cal.App.2d 509, 510, 75 Cal.Rptr. 220; People v. Cheatham (1968) 263 Cal.App.2d 458, 461, 69 Cal.Rptr. 679; People v. Katzman (1968) 258 Cal.App.2d 777, 786, 66 Cal.Rptr. 319; People v. Botts (1967) 250 Cal.App.2d 478, 481-483, 58 Cal.Rptr. 412; People v. Potter (1966) 240 Cal.App.2d 621, 630, 49 Cal.Rptr. 892; People v. Fierro (1965) 236 Cal.App.2d 344, 347, 46 Cal.Rptr. 132; and People v. Randazzo (1963) 220 Cal.App.2d 768, 769-777, 34 Cal.Rptr. 65.)
Once the police were apprised of the manager's suspicions, the public interest in effective crime prevention and detection authorized, if it did not compel, further investigation. It is axiomatic "that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating...
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