People v. Ceccone

• Decision Date: 10 April 1968
• Docket Number: Cr. 13273
• Citation: 260 Cal.App.2d 886,67 Cal.Rptr. 499
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gary L. CECCONE, Defendant and Appellant.

Page 499

67 Cal.Rptr. 499

260 Cal.App.2d 886

The PEOPLE, Plaintiff and Respondent, v. Gary L. CECCONE, Defendant and Appellant.

Cr. 13273.

Court of Appeal, Second District, Division 3, California.

April 10, 1968.

Paul A. Jacobs, Los Angeles, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, William D. Stein, Deputy Attys. Gen., for respondent.

MOSS, Associate Justice.

Defendant was convicted of possession of marijuana in violation of Health and Safety Code section 11530. He was granted probation on condition that he pay a fine. The trial commenced on October 24, 1966 and, therefore, this case is controlled by the rules stated in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. (People v. Rollins, 65 Cal.2d 681, 56 Cal.Rptr. 293, 423 P.2d 221.) Defendant's appeal raises the question whether a statement made by him to the arresting officer at the scene of the arrest stemmed from a 'custodial interrogation' as that term is used in Miranda. We also consider whether the search of the car which produced the marijuana was illegal.

While driving a 1966 model car in the City of Beverly Hills at 9:00 p.m., defendant was stopped on Wilshire Boulevard near Santa Monica Boulevard by two officers of the Beverly Hills Police Department for failing to stop for a red light. Officer Zenter, who testified at the trial, asked defendant for his operator's license and defendant replied that he did not have one. Officer Zenter asked for the vehicle registration and defendant answered that he had borrowed the car from a friend. Officer Zenter then asked defendant to find the registration slip. Defendant looked on the visor and the steering column, but was unable to find any evidence of registration. The officers asked defendant to alight from the car.

The exact chronology and details of the ensuing conversation and events were not developed in the evidence. After defendant got out of the car he and the officers moved around to the passenger side of the car where the officers talked to him. They asked him who owned the car. Defendant made several statements concerning the ownership of the car. He said that he had driven down from San Francisco in the car with two people named Gail and Hans, that he had borrowed the car from Hans and that Hans owned it. He also stated that the car had been rented by Hans' girl friend Gail. Officer Zenter asked defendant where Gail was and defendant replied in Venice, somewhere along the beach area. Defendant did not know the address of Hans or Gail or where they were at the time. Officer Zenter told defendant he suspected that the car was stolen. During the conversation, defendant entered the car from the passenger side to look for the registration slip in the glove compartment. While the door was open, Officer Zenter observed a capsule lying on the passenger side of the floorboard about four to five inches in front of the leading edge of the front seat. There was a considerable amount of debris on the floor of the car. He shined his flashlight in the car and saw another capsule and a wax paper bag. The capsules appeared to Officer Zenter to contain dexedrine, a dangerous drug. He had seen dexedrine capsules on two previous occasions. Officer Zenter entered the car and picked up the capsules and the wax paper bag. The bag contained a green leafy substance which Zenter believed resembled marijuana. He had seen marijuana fifteen times before. Zenter asked defendant if everything in the car belonged to him. Defendant's reply to this question is not revealed by the testimony, but we may reasonably infer from the questions which Officer Zenter then asked that defendant's reply was negative. Zenter then showed defendant one of the capsules and asked him if he knew what it was. Defendant replied that he did not. The officer opened the bag and asked the defendant what it contained and defendant 'stated it was marijuana.' The officer then placed defendant under arrest on suspicion of possession of a dangerous drug without a prescription, possession of marijuana, and grand theft auto and requested a stolen property report on the car. Two hours later they found that the car was registered to a car rental agency in San Francisco. The capsules were later found to contain dexedrine and the bag to contain marijuana.

At the time Officer Zenter entered the car he had probable cause to arrest defendant, and, therefore, the search which produced the marijuana was legal. The officers properly stopped defendant for a traffic violation. When it appeared that defendant did not have an operator's license and could not produce proof of registration for the car, it was reasonable for the officers to investigate further and for that purpose to ask defendant to alight and step around to the passenger side of the car. (See People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57; People v. Galceran, 178 Cal.App.2d 312, 2 Cal.Rptr. 901; People v. Wiley, 162 Cal.App.2d 836, 328 P.2d 823.) The inability of defendant to produce either an operator's license or a vehicle registration, his conflicting statements as to the ownership of the car, and his inability to describe with more certainty the identity or whereabouts of his recent companions from whom he claimed to have borrowed the car were sufficient to give the officers probable cause to believe that the car had been stolen. (People v. Odegard, 203 Cal.App.2d 427, 21 Cal.Rptr. 515; People v. Myles, 189 Cal.App.2d 42, 10 Cal.Rptr. 733; People v. Nebbitt, 183 Cal.App.2d 452, 7 Cal.Rptr. 8; People v. Galceran, supra, 178 Cal.App.2d 312, 2 Cal.Rptr. 901.) However, the validity of the search need not rest upon the officers' belief that the car was stolen. While standing outside the car Officer Zenter observed inside the car a capsule which appeared to contain a dangerous drug. The drug was lying on the floorboard in the midst of debris, and, therefore, the officer was justified in suspecting that the defendant did not have a prescription for it. His suspicion was strengthened when he observed a wax paper bag which he believed to contain a green leafy substance which resembled marijuana. From what he observed the officer had reasonable cause to believe that defendant was guilty of illegal possession of narcotics. His subsequent entry into the car was therefore legal. (People v. Mosco, 214 Cal.App.2d 581, 29 Cal.Rptr. 644; People v. McClain, 209 Cal.App.2d 224, 26 Cal.Rptr. 244; People v. Murphy, 173 Cal.App.2d 367, 377--378, 343 P.2d 273.)

We reverse the judgment, however, because defendant's statement to Officer Zenter that the paper bag contained marijuana should have been excluded from evidence under the rules of Miranda v. State of Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, and the failure to exclude it was prejudicial error. Under Miranda 'the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.' The court defines 'custodial interrogation' to mean 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' (384 U.S. at 444, 86 S.Ct. at 1612.)

Miranda declares that a person in custody must be warned of his rights '(p) rior to any questioning.' (384 U.S. at 444, 86 S.Ct. 1602.) Under Escobedo-Dorado the right to a warning attaches only when the police undertake 'a process of interrogations that lends itself to eliciting incriminating statements.' (Escobedo v. State of Illinois, 378 U.S. 478, 491, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977; People v. Dorado, 62 Cal.2d 338, 347, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Stewart, 62 Cal.2d 571, 577, 43 Cal.Rptr. 201, 400 P.2d 97, aff'd. sub nom Miranda v. State of Arizona, supra.) Miranda thus allows less latitude for investigatory questioning than was permitted under the Escobedo-Dorado standard. (See People v. McFall, 259 Cal.App.2d --- ^a, 66 Cal.Rptr. 277; compare People v. Butterfield, 258 Cal.App.2d --- ^b, 65 Cal.Rptr. 765; People v. Singleton, 255 Cal.App.2d --- ^c, 63 Cal.Rptr. 324.) On-the-scene questioning of a suspect in custody without prior warning of his rights has been sanctioned under Escobedo-Dorado where the purpose of the questioning was found to be investigatory and not to elicit incriminating statements. (People v. Alesi, 67 Cal.2d --- ^d, 64 Cal.Rptr. 104, 434 P.2d 360; People v. Jones, 255 Cal.App.2d --- ^e, 62 Cal.Rptr. 848; People v. Brooks, 234 Cal.App.2d 662, 670--671, 44 Cal.Rptr. 661; People v. Mora, 232 Cal.App.2d 400, 406, 42 Cal.Rptr. 725.) On the other hand, where no investigatory purpose is proved by the prosecution, statements taken from a suspect in custody at the scene of arrest are presumed under Escobedo-Dorado to have been elicited by a process of interrogation that lent itself to eliciting incriminatory statements. (People v. Garavito, 65 Cal.2d 761, 56 Cal.Rptr. 289, 423 P.2d 217; People v. Chavira, 253 Cal.App.2d --- ^f , 61 Cal.Rptr. 407; People v. Diaz, 238 Cal.App.2d 636, 48 Cal.Rptr. 20.)

In People v. Alesi, supra, 67 Cal.2d --- ^g, 64 Cal.Rptr. 104, 434 P.2d 360, the defendant was arrested pursuant to warrant in the apartment of Miss Kline for the crime of selling heroin. In conducting a quick search of the defendant the police found a marijuana cigarette in his shirt pocket. Without advising him of his rights, the arresting officer asked the defendant if the cigarette was his and he said, 'Yes.' In response to a further question, the defendant admitted that the cigarette was marijuana. The Supreme Court held the questioning was not violative of Escobedo-Dorado. The court explained, 'The admission of marijuana possession, though elicited, did not result from an extended police interrogation. It concerned a crime ...