People v. Collin

• Decision Date: 19 November 1973
• Docket Number: Cr. 11800
• Citation: 110 Cal.Rptr. 869,35 Cal.App.3d 416
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jerome Aloysius COLLIN, Defendant and Appellant.

Page 869

110 Cal.Rptr. 869

35 Cal.App.3d 416

PEOPLE of the State of California, Plaintiff and Respondent, v. Jerome Aloysius COLLIN, Defendant and Appellant.

Cr. 11800.

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

Nov. 19, 1973.

Hearing Denied Jan. 16, 1974.

Stephen K. Abbott, Mill Valley, for defendant-appellant.

Bruce B. Bales, Dist. Atty., County of Marin, George R. Nock, Deputy Dist. Atty., County of Marin, for plaintiff-respondent.

MOLINARI, Presiding Justice.

This case was transferred to this court for hearing and decision upon certification from the appellate department of the Superior Court of Marin County (rules 62(a) and 63, Cal. Rules of Court), following an order of that court reversing the order of the municipal court denying defendant's motion to suppress evidence pursuant to Penal Code section 1538.5.

On April 27, 1972, at about 1 p.m., Officer Walter F. Fischer of the Larkspur Police Department, while driving in a police car, received a radio call from his station that a mail carrier had called in stating that there was a possible burglary in progress at 52 Millard Road in Larkspur. He was also advised over the radio that three males had been observed leaving the area in a light blue foreign convertible bearing California license CTC 210 and that the vehicle was then proceeding eastbound on Millard Road. Fischer intercepted this vehicle about a block and a half from 52 Millard Road and proceeded to follow it. As Fischer followed the vehicle he communicated over the police radio that he was placing a stop on the vehicle. He gave the location of the stop and the license number of the vehicle.

The vehicle was stopped three to four blocks from where Fischer had first observed it. He asked defendant, the driver of the car, for his driver's license and also asked the other two passengers for identification. A call then came over the police radio from the Marin County Communications Center that the vehicle was registered to defendant and that there were outstanding traffic warrants against him for parking violations and that the bail set for these warrants amounted to ,45. Fischer then advised defendant why he had been stopped, advised him that there were three outstanding parking warrants for his arrest on which the bail was $45, and inquired if defendant or the other occupants of the car had that amount of money. Defendant stated he did not have that amount of money with him. Fischer then inquired if there was anyone who resided relatively close who could put up the bail, and, if there was, he would not have to place defendant under arrest on the warrants but would permit him to make a phone call at the station to that person. Defendant stated that he knew of no one in that area who would have that much money. Following this conversation another communication came over the police radio advising Fischer that there were additional warrants for defendant's arrest for parking violations on which the bail was $95. Defendant was then placed under arrest for the traffic warrants and taken to the county jail. The other occupants of defendant's car were released.

Captain Charles Mattos of the Larkspur Police Department testified that he transported defendant to the jail; that enroute he asked defendant if he would be able to post bail, and that defendant responded he and no money. He testified, further, that at no time prior to the search did defendant indicate to him or to anyone else that he desired to make a phone call for the purpose of arranging bail, and that his only request was to call his physician because he needed medicine. To this request Mattos responded that the county jail doctor would discuss the matter with him. Mattos at no time asked defendant if he wanted to make a phone call.

While defendant was being taken to the county jail by another officer, Fischer went to the premises at 52 Millard Road and ascertained that the call to the police of a possible burglary at these premises was unfounded since there was no visible evidence of forced entry into the premises.

Defendant testified that his sister, with whom he lived, had $50 which could have been used for bail and that when he got to the sheriff's station he asked to make a phone call but was denied permission to make the call.

During the booking procedure at the county jail defendant was searched. The search revealed a small quantity of marijuana which is the basis of the instant charge of possession of marijuana (Health & Saf.Code, § 11530).

The issues presented to the appellate department were whether the initial detention of defendant's vehicle constituted a valid detention and whether the booking search was legal. The appellate department concluded that the detention was valid but that the booking search was illegal.

We advert to the detention. A police officer may detain a person for investigation or questioning upon the basis of information received through 'official channels.' (Restani v. Superior Court, 13 Cal.App.3d 189, 195, 91 Cal.Rptr. 429; People v. Russell, 259 Cal.App.2d 637, 642, 66 Cal.Rptr. 594; People v. Hunt, 250 Cal.App.2d 311, 313--314, 58 Cal.Rptr. 385; see Remers v. Superior Court, 2 Cal.3d 659, 666--667, 87 Cal.Rptr. 202, 470 P.2d 11; People v. Lara, 67 Cal.2d 365, 374, 62 Cal.Rptr. 586, 432 P.2d 202; and see People v. Madden, 2 Cal.3d 1017, 1021, 88 Cal.Rptr. 171, 471 P.2d 971.) 'However, if the detaining officer himself does not have personal knowledge of facts justifying the detention, but acts solely on the basis of information or direction given him through police channels, the prosecution must establish in court, when challenged, evidence showing that the officer who originally furnished the information had probable cause to believe that the suspect had committed a felony, or, at the very least, that such officer was in possession of facts amounting to circumstances short of probable cause which would have justified him to personally make the detention.' (Restani v. Superior Court, supra, at p. 196, of 13 Cal.App.3d, at p. 432 of 91 Cal.Rptr.; Remers v. Superior Court, supra; People v. Madden, supra; People v. Lara, supra; People v. Adkins, 273 Cal.App.2d 196, 198--199, 78 Cal.Rptr. 397; People v. Escollias, 264 Cal.App.2d 16, 18--19, 70 Cal.Rptr. 65; People v. Wohlleben, 261 Cal.App.2d 461, 465--467, 67 Cal.Rptr. 826; People v. Rice, 253 Cal.App.2d 789, 792--793, 61 Cal.Rptr. 394; People v. Hunt, supra, at p. 314 of 250 Cal.App.2d, 58 Cal.Rptr. 385; People v. Pease, 242 Cal.App.2d 442, 450, 51 Cal.Rptr. 448.)

In the instant case defendant did not, at the time of the hearing of the motion pursuant to Penal Code section 1538.5, specifically challenge the prosecution to present evidence that the officer who originally furnished the information transmitted over the police radio had probable cause to believe that defendant had committed a felony or that he was in possession of facts amounting to circumstances short of probable cause which would have justified him making the detention. The thrust of defendant's attack on the detention, as appears in his memorandum of points and authorities filed in the municipal court in support of his motion, was that the initial stop of defendant exceeded its lawful scope when the detention was prolonged past what was reasonable to the performance of the officer's official duties. Accordingly, the prosecution was not required to present as a witness the officer who initiated the original broadcast or the officer who had the conversation with the mail carrier. As applied to this case, it must be assumed that the officer who initiated the broadcast had adequate cause to detain defendant and that, accordingly, he could properly delegate the detention to Officer Fischer. We conclude, therefore, that Officer Fischer acted properly in detaining defendant for investigation in reliance on the radio broadcast.

We now turn to the validity of the booking search. The appellate department held that this search was illegal because the police department was repuired to give defendant an opportunity to make a telephone call, to inform him of this right, and to afford him a reasonable opportunity to post bail. This determination was based on People v. Superior Court (Simon) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205, and Carpio v. Superior Court, 19 Cal.App.3d 790, 97 Cal.Rptr. 186.

Simon involved a warrantless arrest. The defendant was stopped by a police officer for driving after dark without headlights or taillights. He could not produce the registration for the car, a driver's license or other identification. He was placed under arrest and searched. The search disclosed a plastic bag of marijuana in his pants pocket. This search was held by the Supreme Court to be unlawful. The reviewing court held that a person arrested for traffic infractions who is required to be transported before a magistrate pursuant to Vehicle Code section 40302, ¹ or who is brought before the magistrate for the offenses provided for in section 40303, in the exercise of the arresting officer's option, must be transported directly to the magistrate or other designated official and must be immediately released on bail or promise to appear pursuant to sections 40306 and 40307. (7 Cal.3d at pp. 208--209, 101 Cal.Rptr. 837, 496 P.2d 1205.) In view of these statutory provisions Simon holds that a person arrested for such traffic infractions may not be subjected to the routine booking process used in the case of a nontraffic misdemeanant nor can he be searched as an incident of that process, either in the field or at the police station. (7 Cal.3d at p. 209, 101 Cal.Rptr. 837, 496 P.2d 1205; to the same effect, see People v. Mercurio, 10 Cal.App.3d 426, 430--432, 88 Cal.Rptr. 750.)

In Carpio the defendant was arrested by a highway patrolman on a speeding charge and a radio check revealed an outstanding traffic warrant from another county. The defendant was taken to jail and put...