People v. Cacioppo

• Decision Date: 25 July 1968
• Docket Number: Cr. 2940
• Citation: 70 Cal.Rptr. 356,264 Cal.App.2d 392
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Danny Paul CACIOPPO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 356

70 Cal.Rptr. 356

264 Cal.App.2d 392

The PEOPLE of the State of California, Plaintiff and Respondent, v. Danny Paul CACIOPPO, Defendant and Appellant.

Cr. 2940.

Court of Appeal, Fourth District, Division 1, California.

July 25, 1968.

Rehearing Denied Aug. 20, 1968.

[264 Cal.App.2d 393] Harry E. Weiss, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen. and Brian Amer, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

LAZAR, Associate Justice pro tem. ^*

Defendant was convicted of violating Health and Safety Code, section 11530 (possession of marijuana) and appeals from a probation order deemed a final judgment (Pen.Code, § 1237). By stipulation, joined in by the defendant, the cause was submitted to the trial court without a jury on the transcript of the testimony given at the preliminary hearing.

FACTS

On September 24, 1966, in the City of Newport Beach, at about 11:30 p.m., Police Officer Johnson stopped a 1954 Volkswagen convertible driven by defendant, and in which there were two passengers, one in the right front seat, the other in the right rear seat. The vehicle was stopped for defective equipment; the left front head-lamp was out, the rear license plate illumination absent, and the rear license plate was barely legible. Defendant emerged from the vehicle and walked rapidly toward Officer Johnson with two pieces of paper in his hand and at that time stated: 'I know why you stopped me; my front headlights are out, and I was just cited by the California Highway Patrol.'

Officer Johnson immediately walked to the right side of the vehicle and shined his light inside, checking to see who was inside, and observed the two male passengers, one of whom was nodding his head up and down. He then walked back to the defendant and talked to him while both were standing on the curb at a point between the Volkswagen and the police car. Pursuant to Officer Johnson's request, defendant produced his operator's license. In response to inquiry, defendant stated he owned the car. Officer Johnson asked defendant if he had evidence of registration and he replied, 'Yeah, it's in the car.'

Police Officer Johnson walked to the left side of the Volkswagen and peered in without being able to see any evidence of registration 'posted on the steering column, nor on the sun visor, or at any other location within the interior of the vehicle from viewing the outside of the vehicle.' The officer then employed his flashlight by shining it:

'* * * into the interior of the car onto the steering post, onto the sun visor, And then subsequently onto the floor of the vehicle, which would be in an area on the left side of the vehicle, directly below the driver's seat. (Emphasis added.)

'Q Now, when you shined your light on the floor, looking for the registration, what, if anything, did you observe?

'A I observed five bright green tablets approximately less than one-half inch diameter, which were double scored and appeared to resemble a dangerous drug, Benzedrine.'

Officer Johnson opened the door of the vehicle and examined the tablets more closely and observed also numerous marijuana-appearing seeds in the same location. The officer thereupon looked below the driver's seat and found two marijuana cigarettes.

Defendant was arrested and transported to jail in a police vehicle. Subsequently it was determined that the registration certificate for the defendant's vehicle was affixed to the left sun visor of the car. A search of the police vehicle in which defendant had been taken to jail revealed a third marijuana cigarette behind the seat at the place where defendant had been sitting.

QUESTION

Do the foregoing facts disclose an 'unreasonable search' within the prohibition of the Fourth Amendment to the United States Constitution and Article I, § 19, of the California Constitution?

ANSWER

We conclude the actions of the police officer did not constitute an unreasonable search.

In People v. Carnes, 173 Cal.App.2d 559, 566, 343 P.2d 626, 630, police stopped an automobile after observation of 'suspicious' movement late at night. Defendant driver and his passenger each stepped out of the vehicle and:

'After questioning him about his destination and the ownership of the car, Officer Bolander, while 'standing alongside their vehicle * * * looked into it and * * * observed * * * numerous tools, and a radio and gloves, and a flashlight.' These tools and articles could fairly be described as burglar's tools. The officer's action, in shining his flashlight inside the car while remaining outside, did not amount to an illegal search and when he observed various articles which could be described as burglar's tools inside the car he had 'reasonable cause' for placing appellant under arrest for 'suspicion of burglary.' Making those observations through a window of a car does not constitute an unreasonable search and seizure and the officers were entitled to act upon the information thus obtained. (Citations.) In People v. Brooks, 154 Cal.App.2d 631, 316 P.2d 435, the officer had stopped an automobile for a traffic violation and from the outside he saw cases of whiskey, similar to those that had been stolen, on the back seat. Thus, said this court, there was no unlawful search (154 Cal.App.2d at page 635, 316 P.2d 435 at page 438).'

The foregoing decision parallels the case at bench except for the fact the police officer here testified he flashed his light 'into the interior of the car onto the steering post, onto the sun visor, and then subsequently onto the floor of the vehicle, which would be in an area on the left side of the vehicle, directly below the driver's seat' In furtherance of an intent to look for evidence of registration. It is defendant's contention that the search for evidence of registration did not warrant directing the flashlight beam toward the floor of the car in front of the driver's seat and that such lack of justification thereby rendered the search unreasonable.

As pointed out in Bielicki v. Superior Court, 57 Cal.2d 602, at 605, 21 Cal.Rptr. 552, at 554, 371 P.2d 288, at 290:

'The constitutional guarantees, of course, prohibit not all searches but only those that are 'unreasonable.' (Citations.) And '(t)here is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.' (Citations.)'

We are of the opinion that the circumstances were not such that the investigating officer's conduct was unreasonable as a matter of law. The actions to be taken in the situation with which the officer was confronted are not to be confined within the formalism of a minuet, nor the illumination of his flashlight to the needlelike intensity of a laser beam.

Vehicle Code section 4454, as it then read, required the placement and maintenance of the registration certificate so that it be 'plainly visible and legible fron the outside of the vehicle.' It may be noted that counsel representing defendant at trial did not pursue his cross-examination of the police officer to...