People v. Curley

• Decision Date: 06 November 1970
• Docket Number: Cr. 16882
• Citation: 90 Cal.Rptr. 783,12 Cal.App.3d 732
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas CURLEY, Defendant and Appellant.

Page 783

90 Cal.Rptr. 783

12 Cal.App.3d 732

The PEOPLE of the State of California, Plaintiff and Respondent, v.Thomas CURLEY, Defendant and Appellant.

Cr. 16882.

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

Nov. 6, 1970.

Frank P. Rosen^* Los Angeles, for defendant and appellant.

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

FLEMING, Associate Justice.

Defendant appeals his conviction for arson (Pen.Code, § 448a), ¹ arguing insufficiency of the evidence to support the finding of guilt, improper admission of evidence seized from his automobile, and improper admission of his statements to the police at the hospital.

During the early morning hours of 25 August 1968 a fire of incendiary origin largely destroyed a restaurant in Covina.Partially filled containers of gasoline were found inside the building, and an empty container with volatile fractions which resembled gasoline was found outside the rear door.A trail of burnt cloth approximately 50 feet long led from the rear door to a parking space behind the building.

An hour or so after the discovery of the fire the police learned that defendant, a part-time employee of the restaurant, had just been admitted to a hospital for treatment for severe fire burns.Later they were told by defendant's brother that defendant had returned home early that morning, naked, and suffering from fire burns over much of his body.Despite the obvious severity of the burns defendant and his brother attempted to treat his condition with ice water baths and applications of sunburn spray purchased from a 24-hour grocery store.

That same morning the police found a piece of burnt cloth in defendant's automobile, cloth which had the identical thread count and could have come from the same source as the burnt cloth at the scene of the fire.The police subsequently discovered that two days before the fire defendant had purchased three gallons of gasoline and taken it away in one-gallon containers, a fact he initially denied and then later admitted.

A police officer who accompanied defendant to the hospital in the ambulance asked him 'how he had gotten burnt.He said up fighting the fire.I referred to the fire up in the mountains and he says yes.'The following day defendant was interviewed by officers investigating the restaurant fire.The interview was brief, and defendant's only statement was that he had gotten his burns in the Fish Canyon area.A month later defendant, after having been advised of his constitutional rights, gave an extensive statement to the police setting forth the basic theme of his defense, i.e., he had not been fighting a mountain fire but had been surreptitiously hunting at night in the area of the fire and had avoided established roadblocks to do so.

At his trial defendant testified he had devised a method for simultaneously holding a flashlight and a rifle in such a way that he could shoot rabbits at night.While thus engaged he had slipped on shale and rolled through a wall of flame which rose 50 feet into the air.Thereafter, he tore off his burning clothes, walked two to three miles to his automobile, and then drove several miles to his residence without stopping to seek medical assistance or first aid.

On rebuttal, an expert testified that the combustible material in the San Gabriel mountain range was capable of producing temperatures above 2500 degrees, that if flames were shooting up in the manner described by defendant it would be highly unlikely that anyone could pass through them and survive.A deputy sheriff testified that at the time of the mountain fire he had been in charge of a command post which blocked the only road up Fish Canyon and at no time did he see defendant in the area.

I

In weighing the evidence the trial judge rejected defendant's version of the manner in which he sustained his extensive burns, stating 'I find his story incredible and do not accept it.'We agree with this conclusion of the trial judge, and we consider the evidence more than sufficient to support the finding of guilt.

II

The events relating to the discovery and seizure of the burnt cloth from defendant's automobile unfolded in the following order:

5:03 a.m.--Restaurant premises discovered engulfed in flames.

5:30 a.m.--Assistant Fire Chief Johnson, an expert in arson, arrived on the scene.He found partially empty containers of gasoline on the premises and he noted that the rear door was unlocked and ajar and its frame had no pry marks.From these and other observations he concluded that the fire was of incendiary origin.

6:30 a.m.--Chief Johnson learned that defendant, a part-time employee of the restaurant, had just been taken to the hospital suffering from severe fire burns on his arms, legs, and torso.

9 a.m.--At defendant's residence Chief Johnson and two police officers talked to defendant's brother, who said that defendant had driven home about 6 a.m. after having been burned in a mountain fire.Defendant's automobile was parked in the backyard, and the brother gave the offices permission to look at it.When Chief Johnson looked inside the automobile's window on the driver's side he saw what appeared to be a piece of burnt cloth.He took this burnt cloth, returned to the restaurant premises, and there found a trail of apparently the same material leading from the rear door of the restaurant to a parking space 50 feet away.A subsequent comparison of the burnt cloth found in the automobile with that found at the scene of the fire showed that both materials had the same thread count.

Clearly, from the outset of their investigation the authorities had reasonable cause to believe that arson had been committed.While there was no initial indication of the identity of the arsonist, when the investigating officers learned that a part-time employee of the restaurant had been severely burned that same morning he became an obvious subject for their investigation.The officers' interest in his activities was intensified when they learned he had driven home about 6 a.m. and told his brotherhe had been burned in a fire.Chief Johnson sought and received permission from the brother, a resident of the premises, to enter the backyard in order to look at defendant's automobile.Thus, when he looked in the window of the automobile he was doing so with the permission of its temporary custodian from a place in which he was entitled to be.(People v. Smith, 63 Cal.2d 779, 799--800, 48 Cal.Rptr. 382, 409 P.2d 222.)At that time Chief Johnson was neither trespassing nor engaging in an unlawful search, and unquestionably he was entitled to testify about what he had seen in plain view through the window.(People v. Roberts, 47 Cal.2d 374, 380, 303 P.2d 721;People v. West, 144 Cal.App.2d 214, 219--220, 300 P.2d 729;Ker v. California, 374 U.S. 23, 43, 83 S.Ct. 1623, 10 L.Ed.2d 726.)

The problem of seizure arises because after Chief Johnson saw the burnt cloth he took it away without the permission of its owner or custodian.The legal question is whether he was entitled to seize without warrant an item which did not fall within any of the three categories of property subject to seizure at common law (fruits of crime, instruments of crime, and contraband) and which he had not obtained in the course of a lawful search or lawful arrest.The item seized is best described as potential evidence, and the issue, broadly put, is whether a peace officer ² in the course of an investigation can seize without warrant potential evidence which he believes will assist in the solution and prosecution of crime.If he can, what circumstances entitle him to do so?

There appears a dearth of precedent on the point, undoubtedly because prior to the decisions in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905(1955), andMapp v. Ohio, 367 U.S. 643, 655--657, 81 S.Ct. 1684, 6 L.Ed.2d 1081(1961), evidence was legally admissible regardless of the methods by which obtained.This was the rule at common law and is still the rule in England.³Even after Cahan most warrantless seizures litigated in the courts were connected with a search or an arrest, and the courts tended to focus their attention exclusively on the validity of the search or arrest and treat the seizure as a wholly dependent question.Because of the absence of direct precedent, we examine the question of authority to seize in some detail.

Seizure Under the Fourth Amendment

Our starting point in the consideration of seizure without warrant is the Fourth Amendment to the federal Constitution(substantially incorporated in the California Constitution as Article I, section 19): 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'While this amendment places general limitations on the seizure of persons, papers, effects, and things, it does not prohibit all seizures, only those which are unreasonable, and we must therefore explore the content of reasonableness as it relates to seizure of potential evidence.

Our first question is whether under the Fourth Amendment any warrantless seizure of potential evidence, apart from lawful search or lawful arrest, is permissible.On this point the key case is Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782.There, the police learned that an armed robbery had just taken place and a suspect gone inside a certain house.Officers entered the house to search for the suspect and in due course found him in an upstairs bedroom.Meanwhile an officer had been searching the cellar, and he found in a washing machine a jacket and trousers of the type said to have been worn by the robber.The police seized these...