People v. Cowman

• Decision Date: 06 December 1963
• Docket Number: Cr. 8948
• Citation: 223 Cal.App.2d 109,35 Cal.Rptr. 528
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. John Gerald COWMAN, Defendant and Respondent.

Page 528

35 Cal.Rptr. 528

223 Cal.App.2d 109

The PEOPLE of the State of California, Plaintiff and Appellant, v. John Gerald COWMAN, Defendant and Respondent.

Cr. 8948.

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

Dec. 6, 1963.

Hearing Denied Jan. 29, 1964.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Woodruff J. Deem, Dist. Atty. of Ventura County, Edwin M. Osborne, Chief Criminal Deputy, Lyman R. Smith, Deputy Dist. Atty., for appellant.

Hathaway, Soares & Shaw, Robert J. Soares, Ventura,* for respondent.

HERNDON, Justice.

This appeal is taken by the People from the order of the superior court granting defendant's motion under section 995, Penal Code, to set aside the information theretofore filed against him. In accordance with the order of the municipal court holding defendant to answer after preliminary hearing, this information charged defendant with possession of a sawed-off shotgun in violation of section 12020 of the Penal Code.

The sole question presented by this appeal is whether the action of the police officers in stopping defendant's car, under the circumstances here presented, so violated defendant's constitutional rights that no search thereafter conducted could be deemed legal and that no evidence thereby obtained could be admitted. The evidence introduced at the preliminary hearing, other than the sawed-off shotgun itself, consisted of the uncontradicted testimony of one of the arresting officers. This evidence disclosed the following facts:

Officer Staniland, a detective with the Oxnard Police Department, and a fellow officer were proceeding southbound on Oxnard Boulevard at approximately 12:30 a. m. on November 18, 1962, in an unmarked police car, when they observed defendant's vehicle parked on Oxnard near the northwest corner of the intersection of Oxnard and Sixth Street in the City of Oxnard.

As they approached the vehicle, the officers noticed that it was occupied by three men who were looking across the street in the direction of the City Center Motel. Officer Staniland testified that as they passed the vehicle, the occupants 'looked at us and their heads seemed to follow us as our vehicle passed theirs, and after we had passed them, the headlights went on; we then pulled in to the curb across on the other side of sixth street.'

The officers continued to observe defendant's car and saw the headlights 'go out again'; the three occupants again appeared to direct their attention toward the area of the motel. After approximately five minutes, defendant's vehicle left the scene and made a right turn on Sixth Street. The officers turned their car around and saw defendant turn left, off Sixth Street, into B Street. The officers turned on their red light and defendant stopped his car in the 800 block on B Street. There is no indication that defendant's car had been driven otherwise than in a legal manner during this period.

As the officer approached defendant's car on foot, the occupant of the rear seat was drinking out of a beer bottle. This person turned his head toward the officers and then put the bottle down on the floorboard. Defendant got out of the car as the officers approached, but the other occupants remained seated therein. All three were asked to identify themselves. They showed various papers and stated that they were all from Los Angeles or Long Beach, had just been driving around and had been in Oxnard for about an hour. Defendant, who was driving the car and admitted ownership, was asked if the officers might search the car. He answered, 'I don't care. Go ahead.'

The officers proceeded to search the car, and, in addition to two open beer bottles found lying on the floor behind the front seat, they discovered five shotgun shells in the glove compartment and a sawed-off shotgun hidden in the ventilator shaft under the dashboard. This gun was not visible from outside the car, nor from the vantage point of a person seated in a normal fashion on the front seat. On the basis of these facts, the committing magistrate held defendant to answer. ¹

It is manifest, of course, that prior to the time defendant's vehicle was stopped, the officers had no probable cause either to arrest the occupants or to search the vehicle. Appellant does not contend otherwise. (People v. Mickelson, 59 A.C. 465, 471, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Gale, 46 Cal.2d 253, 257, 294 P.2d 13.) However, there is nothing whatsoever in the record to indicate that the officer's initial purpose in stopping the vehicle was to effect an arrest or to conduct a search thereof. We are presented, therefore, with a very narrow question, i. e., whether the mere stopping of the vehicle under the circumstances described constituted such an unreasonable invasion of defendant's rights that all the subsequent acts and discoveries of the officers must be condemned and rejected as the 'fruits of a poisonous tree'. It is our opinion that this determinative question must be answered in the negative; we think that both controlling precedent and common sense dictate this answer.

In People v. Mickelson, supra, (at pages 466-469 of 59 A.C., at page 20 of 30 Cal.Rptr., at page 660 of 380 P.2d), it was held that the prevailing California rule that persons may be interrogated and vehicles stopped for purposes of investigation upon facts 'short of probable cause to make an arrest' had not been nullified by recent decisions of the United States Supreme Court. It was therein determined that, insofar as the federal rules in this regard may differ from those of this state, such difference is not predicated upon any constitutional ground and, hence, that we are not prohibited from adhering to other reasonable rules previously developed. In addition, as the court in Mickelson, supra, was careful to point out (page 469 of 59 A.C., at p. 21 of 30 Cal.Rptr., at p. 661 of 380 P.2d):

'The United States Supreme Court apparently concluded that the situations presented in the Henry, Rios, and Brinegar ² cases allowed no middle ground (see dissenting opinion of Jackson, J. in Brinegar v. United States, 338 U.S. 160, 183, 69 S.Ct. 1302, 93 L.Ed. 1879 [1894]), and hence that the officers were not justified in stopping the defendants' automobiles unless they had probable cause to make arrests.' (Emphasis added.)

The importance of this observation is made clear when 'the situations presented' in those cases are considered, particularly in the light of the dissenting opinion of Mr. Justice Jackson cited by our Supreme Court as the basis for its quoted statement. In the Brinegar case, federal officers, acting upon their observations of the known defendant's car and upon information which they had acquired previously, pursued and stopped the defendant because they believed that he was importing liquor into Oklahoma illegally.

The majority of the court, on the assumption that the officers there intended to search the car from the outset and had adequate facts prior to stopping it to warrant such a search, were not required to discuss the question whether the officers might not have been justified in stopping the car on the basis of some lesser quantum of evidence for purposes of interrogating the driver, but with no right to conduct a search thereof.

Mr. Justice Burton, however, in his separate concurring opinion, noted that it was not necessary to establish probable cause for the search prior to the colloquy which followed after the car was stopped. He stated (338 U.S. 178, 69 S.Ct. 1312, 93 L.Ed. 1879): 'The earlier events, recited in the opinion of the Court, disclose at least ample grounds to justify the chase and official interrogation of the petitioner by the government agents in the manner adopted.' ³ (Emphasis added.)

However, it is in the dissenting opinion of Mr. Justice Jackson, joined in by Justices Frankfurter and Murphy, that the particular situation there presented is brought sharply into focus. It is there pointed out (page 188 of 338 U.S., p. 1317 of 69 S.Ct., 93 L.Ed. 1879): 'That [the officers] intended to set out on a search is unquestioned, and there seems no reason to doubt that in their own minds they thought there was cause and right to search.' (Emphasis added.) Based upon this premise, that it was the initial intent of the officers to conduct a search and not merely to interrogate the driver, these dissenting justices felt probable cause had not been shown.

But the opinion continues, 'I do not, of course, contend that officials may never stop a car on the highway without the halting being considered an arrest or a search. Regulations of traffic, identification where proper, traffic census, quarantine regulations, and many other causes give occasion to stop cars in circumstances which do not imply arrest or charge of crime. And to trial or pursue a suspected car to its destination, to observe it and keep it under surveillance, is not in itself an arrest nor a search. But when a car is forced off the road, summoned to stop by a siren, and brought to a halt under such circumstances as are here disclosed, we think the officers are then in the position of one who has entered a home: the search at its commencement must be valid and cannot be saved by what it turns up. [Citations].' (Emphasis added.)

Similarly, in Henry v. United States, supra, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134, the majority of the court which held the arrest and search of the defendant's automobile to have been illegal, were at pains to note: 'The prosecution conceded below, and adheres to the concession here, that the arrest took place when the federal agents stopped the car. That is our view on the facts of this particular case. When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete. It is, therefore, necessary to determine whether at or before that time they had reasonable cause to believe that a...