People v. Ball, Cr. 3481

• Decision Date: 31 July 1958
• Docket Number: Cr. 3481
• Citation: 328 P.2d 276,162 Cal.App.2d 465
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Ray BALL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 276

328 P.2d 276

162 Cal.App.2d 465

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Ray BALL, Defendant and Appellant.

Cr. 3481.

District Court of Appeal, First District, Division 2, California.

July 31, 1958.

Rehearing Denied Aug. 29, 1958.

Hearing Denied Sept. 24, 1958.

Johnson, Thorne, Speed & Bamford, San Jose, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

DRAPER, Justice.

A jury found defendant guilty of possession of marijuana. He was admitted to probation on condition he serve 6 months in county jail. Defendant appeals, urging that the marijuana admitted in evidence was found in his home as the result of an illegal search.

An armed robbery occurred in San Jose at about 9:30 a. m. The police secured information leading them to believe that one Conrad Mallory was one of the three robbers and that Mallory might be at the home of defendant. At about 10:30 a. m., police officers of the San Jose and Campbell departments went to appellant's home in Campbell, seeking Mallory. A police sergeant from Campbell and one from San Jose knocked at appellant's door, and announced that they were policemen. Appellant opened the door. They asked 'if Conrad Mallory was there and if we could come in and look around, at which time he replied yes, we could.' The two officers entered the room. When appellant went back to bed, they asked him to arise and dress. They looked through the apartment and did not find Mallory. They, with appellant, went outside the house. About three minutes later, Sergeant Sims returned to the house and saw a plastic bag protruding from a blanket on a shelf in an open cupboard. He looked at the bag, which proved to contain marijuana cigarettes. He went outside and arrested appellant for possession of narcotics. Appellant himself testified that he consented to the officers' search of his quarters, and that he had been with Mallory on the night preceding the holdup.

Appellant argues that he was arrested when the officers asked him to get out of bed. He appears to contend that this 'arrest' was unlawful and that this made the search illegal, even though it was otherwise reasonable and justified. But the very decision relied upon by appellant negatives his view. '[T]he legality of an arrest is not necessarily determinative of the lawfulness of a search incident thereto. * * * [S]ome searches may be reasonable and hence lawful in the absence of a warrant or an arrest * * *' People v. Brown, 45 Cal.2d 640, 643, 290 P.2d 528, 530. A search or seizure may be justified even though it is in no way related to an arrest. People v. Roberts, 47 Cal.2d 374, 303 P.2d 721; People v. Wright, 153 Cal.App.2d 35, 40, 313 P.2d 868. We know of no rule by which a valid search, justifiable without reference to an arrest, is voided by the unlawfulness of an arrest upon which the search does not depend. Thus it is unnecessary to pass upon the merits of appellant's contention that he was in fact arrested when the officers asked him to get out of bed.

Appellant does not deny that the officers had reasonable cause for going to appellant's home in search of Mallory, the suspected robber. They entered the residence after informing appellant of their purpose, and at least without objection from him. Their discovery of the marijuana was but incidental to the search for Mallory. The case is strikingly similar to that considered in Love v. United States, 4 Cir., 170 F.2d 32, which has been cited with approval in California (People v. Roberts, supra, 47 Cal.2d 374, 303 P.2d 721; people v. Ortiz, 147 Cal.App.2d 248, 305 P.2d 145). In the Love case, officers went to defendant's home seeking one Foster, for whom they had a warrant of arrest. In searching for Foster in Love's home, which they had entered without objection, they found an illicit still, evidence of the existence of...