People v. Cove

• Decision Date: 15 July 1964
• Docket Number: Cr. 3468
• Citation: 39 Cal.Rptr. 535,228 Cal.App.2d 466
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George A. COVE, Defendant and Appellant.

Page 535

39 Cal.Rptr. 535

228 Cal.App.2d 466

The PEOPLE of the State of California, Plaintiff and Respondent, v. George A. COVE, Defendant and Appellant.

Cr. 3468.

District Court of Appeal, Third District, California.

July 15, 1964.

Rehearing Denied Aug. 11, 1964.

Hearing Denied Sept. 10, 1964.

Robert Carl Anderson, Sacramento, for appellant.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., Sacramento, for respondent.

FRIEDMAN, Justice.

A jury found defendant guilty of violating Penal Code, § 12021, which prohibits possession of a pistol by any person who has been convicted of a felony. He was sentenced to state prison and appeals from the judgment.

Mrs. Mary Jane Taylor lived in an apartment above the apartment occupied by defendant. At approximately 3:30 a. m. on a Sunday morning, Mrs. Taylor was awakened by a knock on her door. When she went to the door, no one was there, but she saw a person (whom she later identified as defendant) walking down the stairs. She had just returned to bed when she heard another knock. She answered the door, leaving the night chain on. Defendant was at the door again and asked her why she was making so much noise. Mrs. Taylor released the night chain and opened the door, telling defendant that all the noise was coming from his apartment and that any further disturbance would cause her to call the police. Defendant then pulled a pistol out of the waistband of his trousers and pointed it at Mrs. Taylor. She slammed the door and her husband called the police.

Officers Lyons and French of the Sacramento Police Department received a radio call instructing them to investigate a disturbance involving a man with a gun. They went to the apartment building. Mrs. Taylor told them that a man in the apartment below had come upstairs and threatened her with a gun. Officer Lyons went to defendant's front door, while French went to the rear of defendant's apartment and peered in through a window. Lyons knocked and in response to an inquiry identified himself as a policeman. Defendant came to the door, opening it slightly. Lyons told him that the police had received a disturbance call and that he wanted to talk to him. Defendant partially closed the door and disappeared from sight for a brief interval. He then returned to the door, opened it fully, stepped back and gestured, saying: 'Does it look like there's a disturbance going on?' Lyons later testified that he regarded appellant's gestures as an invitation and he entered the apartment. Meanwhile, Officer French was watching through a window at the rear. He saw defendant in the apartment with another man and a woman. He observed defendant go to the front door with a gun in his hand, open the door slightly, step back from the door and then hand or toss the gun to his male companion, who placed it under a sofa cushion. French immediately went around to the front door. While it was still open to admit Lyons he entered and went straight to the sofa where the gun had been concealed. Stating that defendant had a gun, French removed the pistol from the sofa. There were seven rounds in the clip and one catridge in the firing chamber.

Officer Lyons went upstairs and heard Mrs. Taylor's description of her encounter with defendant. She then accompanied him downstairs, where she identified defendant. In reply to a direct question, she answered, 'I want that man arrested.' Defendant then became violent and abusive and had to be placed in handcuffs. According to the officers' subsequent testimony, defendant was intoxicated. He was taken to the patrol car and at that time Mrs. Taylor signed a 'citizen's arrest' form, charging defendant with disturbing the peace and brandishing a firearm. After a check revealed that defendant had prior felony convictions, he was charged with a violation of section 12021.

The police officers had no cause to believe that a felony had been committed, nor had defendant committed any law violation in their presence. Hence the officers did not have power to arrest defendant without a warrant. (Pen.Code, § 836.) Mrs. Taylor, however, was authorized to effect a citizen's arrest for misdemeanors committed or attempted in her presence. (Pen.Code, § 837.) These misdemeanors were disturbance of the peace and brandishing a weapon in violation of Penal Code, §§ 415 and 417. Defendant points out that his pistol was not taken as an incident to the citizen's arrest by Mrs. Taylor or as an incident of a lawful arrest by the officers. Hence he characterizes the pistol as illegally seized evidence, which should have been excluded by the trial court pursuant to defendant's objection.

There are conditions other than a search warrant or lawful arrest which permit police investigation and a reasonable precautionary search for a weapon. Officers may properly investigate a citizen's complaint involving a threat to public safety. (People v. Hupp, 61 Cal.App.2d 447, 450, 146 P.2d 84.) Officers investigating a suspect on the street or in an automobile may in self-protection conduct a superficial search for concealed weapons. (People v. Mickelson, 59 Cal.2d 448, 450-451, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Martin, 46 Cal.2d 106, 108, 293 P.2d 52; People v. Koelzer, 222 A.C.A. 21, 27, 34 Cal.Rptr. 718.) The facts here diverge from the outdoor pedestrian or automobile situation in that the subject of investigation was in his own dwelling place. Constitutional alertness to possible police invasion of privacy is seemingly sharpened when the area of search is a home or apartment rather than an automobile or a pedestrian abroad on the midnight streets. (Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; People v. Shelton, 60 Cal.2d 740, 36 Cal.Rptr. 433, 388 P.2d 665.) We say 'seemingly' because the Fourth Amendment protects sanctity of the person no less than privacy of the home. The problem in each case is to measure the individual instance of police conduct against Fourth Amendment standards of reasonableness. (Ker v. California, supra, 374 U.S. 33, 44, 83 S.Ct. 1623.) At this point state courts may consider "the practical demands of effective criminal investigation and law enforcement." (Ibid., 374 U.S. p. 34, 83 S.Ct. at 1630.) Under the circumstances which the police faced here, the realities, the demands of police obligation and self-protective action, did not diverge at all from cases such as People v. Mickelson, supra, which sanctioned a precautionary weapon check outdoors. ¹

In this case the officers went to defendant's apartment not to seek incriminating evidence but in fresh investigation of a complaint of dangerous conduct. (Cf. People v. Edgar, 60 Cal.2d 171, 174-175, 32 Cal.Rptr. 41, 383 P.2d 449.) Unlike Ker v. California, supra, there was no unannounced police invasion; unlike People v. Shelton, supra, there was no peremptory police demand for entry; unlike People v. Reeves, 61 A.C. 259, 38 Cal.Rptr. 1, 391 P.2d 393, there was no entry by trickery. After Officer Lyons knocked at the door and identified himself, defendant quickly secreted the gun, threw open the door, stepped back and claimed absence of any disturbance. This course of conduct was an implied invitation to Lyons to step inside and to satisfy himself that conditions conformed precisely to defendant's claim, i. e., no disturbance. The officer was entitled to regard defendant's gestures as an implied invitation to enter. (People v. Baca, 198 Cal.App.2d 391, 396, 17 Cal.Rptr. 779; People v. Smyre, 164 Cal.App.2d 218, 224, 330 P.2d 489.) Lawful entry, 'the indispensable predicate of a reasonable search,' had been established. (Ker v. California, supra, 374 U.S. at p. 53, 83 S.Ct. at p. 1639.) Meanwhile, Officer French was peering into the apartment through a rear window. Decisions endorsing such surveillance (e. g., People v. Feeley, 179 Cal.App.2d 100, 105, 3 Cal.Rptr. 529; People v. Andrews, 153 Cal.App.2d 333, 314 P.2d 175) may have been qualified by a recent pronouncement equating police view of the dwelling's interior with physical intrusion (People v. Shelton, supra, 60 Cal.2d at p. 747, 36 Cal.Rptr. 433, 388 P.2d 665). The exigent situation created by knowledge that someone in the apartment had just used a gun in a meancing fashion amply justified French in 'covering' his fellow officer from the rear window. As he looked, he saw defendant respond to Lyons' knock by going to the front door, gun in hand. Next he saw defendant pass the gun to his companion, who hid it under the sofa cushion. French did not have to blind himself to the revelations of plain sight. Danger was in the air. The circumstances compellingly and urgently called on French to get possession of the gun before it was used on his fellow officer or himself. He went after the gun, not to collect evidence but in self-protection. There was a seizure here but no search at all, since French knew exactly where the gun was. The Fourth Amendment, as applied to state action via the 14th Amendment, prohibits only 'unreasonable' searches and seizures. (People v. Andrews, supra, 153 Cal.App.2d at p. 338, 314 P.2d 175.) There was nothing unreasonable in this self-protective seizure of a dangerous weapon in close proximity to a man who was either dangerous or gave every appearance of meanace.

Once defendant was arrested, Mrs. Taylor, as the arresting person, had statutory authority to take the pistol and deliver it to the magistrate. (Pen.Code, § 846.) She might, of course, use the assistance of the officers for this purpose and leave the weapon in their physical custody.

Defendant, however, charges that the officers violated Penal Code section 833. ² Under its provisions, he contends, they were required either to arrest defendant or return the weapon; since they did not arrest him (although the citizen did), they could not retain the gun. Just what effect section 833 has, in cases where it applies, we need not determine. ³ It has no bearing...