People v. Currier

• Decision Date: 05 February 1965
• Docket Number: Cr. 4595
• Citation: 42 Cal.Rptr. 562,232 Cal.App.2d 103
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George CURRIER, Defendant and Appellant.

Page 562

42 Cal.Rptr. 562

232 Cal.App.2d 103

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

Cr. 4595.

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

Feb. 5, 1965.

William D. Eaton, Berkeley, for appellant (Under appointment of District Court of Appeal).

Thomas C. Lynch, Atty. Gen. of State of California, Albert W. Harris, Jr., James Murad, Deputy Attys. Gen., San Francisco, for respondent.

DEVINE, Justice.

Appellant was convicted of possession of marijuana, a violation of Health & Safety Code section 11530, after the narcotic had been found in his hotel room. His arrest and the entry and search of the room were done without arrest or search warrant. The prosecution contends that the arrest was lawful because it was based upon reasonable cause to believe that appellant had committed a felony; that the search of the room was incident to a lawful arrest; and that the search was also justified because appellant had consented to it.

Facts and Decision as to Lawfulness of the Arrest

The officers had gained information, about 14 months before the arrest, from a police officer attached to the juvenile division, that appellant was active in narcotics traffic. There had been anonymous telephone calls to the police, in which callers had said that a young man named George Currier was living at a hotel in the area of 41st Street and Piedmont Avenue, that he had a lot of people coming and going, and that it was obvious that he was doing something. Another anonymous caller had been less specific in one way, that is, the caller did not name appellant but referred to a 'young man' who approached young girls as they got off the bus at 41st and Piedmont, and that thin cigarettes had been given to the girls in exchange for money.

On October 15, 1963, at 9:30 p. m., two officers in plain clothes, driving an unmarked police car, saw appellant as he emerged from the hotel where he lived. Officer Romero recognized appellant on the basis of a mug shot he had seen previously. As appellant walked away from the hotel, he turned in the direction of the police car and said, 'Did somebody call me?' At the same time, he put his right hand into his shirt pocket. Officer Romero stepped out of the police car and informed him that he was a police officer. Appellant immediately turned and ran. Officer Romero ran after him. Appellant ran down a path towards a library, and as he ran he made a throwing motion with his right arm. Officer Romero caught appellant at a gate leading into the library premises, and after a brief struggle, handcuffed him and placed him in custody. He was asked what he was running from. The officer testified that he replied that he 'had a $40 warrant out of Piedmont and that's why he was running.' Appellant was searched. A torn, rolled up matchbook cover, with burn marks on it, was found on his person. This was described by Officer Romero as a 'crutch', a device used for the purpose of smoking a cigarette so that the cigarette may be totally consumed. A package of wheat straw paper was also found on appellant. He denied throwing anything as he ran from Officer Romero. A search of the area where appellant made the throwing motion revealed nothing.

Appellant's contention that his arrest was illegal on the ground that it was not based on reasonable cause to believe he had committed a felony, cannot be sustained. Penal Code, § 836, subdivision 3, authorizes a police officer to arrest without a warrant 'Whenever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.' There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts. (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Esters, 220 Cal.App.2d 917, 920, 34 Cal.Rptr. 264.) Reasonable cause has generally been defined to be 'such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.' (People v. Ingle, supra, 53 Cal.2d p. 412, 2 Cal.Rptr. p. 17, 348 P.2d p. 580.)

A police officer may question a person outdoors at night when the circumstances are such as would indicate to a reasonable man that such a course is necessary in the discharge of his duties. (People v. Alcala, 204 Cal.App.2d 15, 19, 22 Cal.Rptr. 31.) Here, the officers observed appellant leaving his hotel in the middle of the evening. Officer Romero recognized appellant and knew that he had been the subject of several anonymous telephone calls implicating him in narcotics traffic. The strength of the information an officer requires to engage in questioning is necessarily much less than it would be to arrest. (People v. King, 175 Cal.App.2d 386, 390, 346 P.2d 235; People v. Silvers, 196 Cal.App.2d 331, 336, 16 Cal.Rptr. 489.) We conclude that sufficient reason existed to stop appellant and interrogate him.

While information received from anonymous informants is not alone sufficient to justify an arrest, it may be considered along with other facts and circumstances known to the officer. (People v. Reeves, 61 A.C. 259, 264, 38 Cal.Rptr. 1, 391 P.2d 393.) Here, Officer Romero identified himself as a police officer. Appellant immediately fled, and during his flight was seen to make a throwing motion. When a person who is approached by an officer engages in furtive conduct, the officer may well be justified in arresting him in view of the officer's prior information and his knowledge of the person's background. (People v. McMurray, 171 Cal.App.2d 178, 185, 340 P.2d 335.) It is the information known to the police officer or the suspicious circumstances which turn as unusual act into a furtive one. (People v. Tyler, 193 Cal.App.2d 728, 732, 14 Cal.Rptr. 610.) Here, there was not only the suspicious circumstance of appellant's flight, but the throwing motion as well. We believe this conduct, when coupled with the officer's prior knowledge, provided sufficient basis to support a reasonable belief that appellant was attempting to dispose of contraband in his possession. His arrest was therefore lawful. (People v. Hilliard, 221 Cal.App.2d 719, 723-724, 34 Cal.Rptr. 809; People v. Williams, 220 Cal.App.2d 108, 113, 33 Cal.Rptr. 765.)

We have examined the cases of Gascon v. Superior Court, 169 Cal.App.2d 356, 337 P.2d 201, and People v. Zabala, 217 Cal.App.2d 550, 31 Cal.Rptr. 712, and do not find them in point. In Gascon, the arresting officers had no previous knowledge about the defendant. Moreover, his flight occurred only after he was threatened with an improper search. In Zabala, information allegedly received from an informant was not disclosed at the trial. Furthermore, the officer who made the arrest did not see the defendant make a throwing motion, or discard the contraband which later formed the basis of his conviction.

Facts and Decision on the Search as Claimed to be Incident to the Arrest

Following the arrest described above, the officers made a search of appellant's room. Several acts on the part of the officers, of appellant, and of his landlady, which preceded their entry into the room, are described below under the topic of appellant's asserted consent. At this point, it is sufficient to say that the hotel is about 250 feet away from the place of arrest. Therefore, even though appellant's arrest was lawful, search of his room cannot be justified as search made incident to an arrest, as the trial judge found it to be. In People v. Cruz, 61 A.C. 959, 965, 40 Cal.Rptr. 841, 844, 395 P.2d 889, 892, the Supreme Court said: '* * * a search is not 'incidental to an arrest' unless it is limited to the premises where the arrest is made; is contemporaneous therewith; has a definite object; and is reasonable in scope.' Here, as we have noted, appellant's arrest was accomplished away from his hotel, after a chase down a pathway leading to certain library premises. Appellant was not arrested in his room, or even in the hotel where he maintained his room.

Facts and Decision as to the Claim of Consent to Search

We have examined the legality of the arrest above, partly because appellant has invoked the rule of People v. Haven, 59 Cal.2d 713, at page 719, 31 Cal.Rptr. 47, 381 P.2d 927, stated, that a search made pursuant to consent secured immediately following an illegal arrest is inextricably bound up with the illegal conduct. We have expressed our view that the arrest was legal. The next consideration is whether the alleged consent was truly given. We accept as true, because the trial court did so, the testimony of an officer that the words purporting to give consent on two occasions, related below, were spoken by appellant, despite appellant's denial.

This, however, does not end the matter. Recent decisions of the Supreme Court of this state have imposed on us the duty of deciding, as a matter of law, whether the words of permission constituted an actual consent. In Castaneda v. Superior Court, 59 Cal.2d 439, 30 Cal.Rptr. 1, 380 P.2d 641, a writ of prohibition against trial of a charge of possession of heroin was granted, although the accused had told the officers they could 'go ahead and look' (p. 441, 30 Cal.Rptr. 1, 380 P.2d 641) when he was asked if he had narcotics at his house. The court found these words of acquiescence to have been overbalanced by the facts that petitioner was not only under arrest but was handcuffed and had no choice but to go where the officers took him; and that he attempted to lead the officers away from his home (p. 443, 30 Cal.Rptr. 1, 380 P.2d 641). In People v. Shelton, 60 Cal.2d 740, 36 Cal.Rptr. 433, 388 P.2d 665, judgment of conviction was reversed on the ground of illegal search, despite the testimony of an officer that when he suggested they go to Shelton's apartment and take a look, Shelton replied, ...