People v. Dahlke

• Decision Date: 18 December 1967
• Docket Number: Cr. 6070
• Citation: 64 Cal.Rptr. 599,257 Cal.App.2d 82
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James Virgil DAHLKE and Richard Gordon Moorhead, Defendants and Appellants.

Page 599

64 Cal.Rptr. 599

257 Cal.App.2d 82

PEOPLE of the State of California, Plaintiff and Respondent, v. James Virgil DAHLKE and Richard Gordon Moorhead, Defendants and Appellants.

Cr. 6070.

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

Dec. 18, 1967.

Hearing Denied Feb. 14, 1968.

Dennis K. Bromley, San Francisco, for appellants (under appointment of the Court of Appeal, First Appellate District).

Thomas C. Lynch, Atty. Gen. of the State of California, Robert R. Granucci, James B. Cuneo, Deputy Attys. Gen., San Francisco, for respondent.

SHOEMAKER, Presiding Justice.

Defendants James Dahlke and Richard Moorhead appeal from judgments of conviction on three counts of burglary.

The record shows that early in the morning of May 5, 1966, Bill Garrett observed two men whom he identified as defendants Dahlke and Moorhead applying crowbars to the rear door of a hardware store located in Cloverdale, California. Garrett asked a companion to call the police, and the message was relayed to Officer Green of the Cloverdale Police Department.

Officer Green arrived at Sciani's Hardware Store at approximately 1:30 a.m. and saw defendants emerging from behind the store. Green accosted defendants in a parking lot, ordered them to halt and to approach with their hands above their heads. Green then asked defendants what they were doing in the vicinity of the hardware store and also asked them to identify themselves. Neither man responded. After Garrett had approached and identified defendants as the two men who had been attempting to force entry into the hardware store, Green conducted a pat search of Dahlke and found a flashlight, pair of gloves, and a crowbar hooked over his belt and extending down the inside of his right pants leg.

After Green had placed both defendants under arrest, he was joined by, officer Luccehsi, who conducted a search of Moorhead. During the course of this search, both defendants were ordered to lie face down on the ground, and Green kept his gun pointed at them. Moorhead was found to be in possession of a crowbar, a flashlight, and a pair of gloves.

Defendants were then handcuffed and driven to the police station, where they were advised that they had a right to an attorney that they could make a telephone call, and that anything they said could be used against them. Neither defendant made any reply. Defendants' handcuffs were then removed, and they were asked to empty their pockets. The contents included the keys to an automobile.

In response to police questioning, defendants stated that they were from out of town and that defendant Moorhead had a car which was located at the Oaks Motel in Cloverdale. When Moorhead was asked whether he had any objection to the police going and looking in his car, he shrugged his shoulders and replied, 'De what you want.'

The police officers then proceeded to the Oaks Motel and searched Moorhead's car, which was found to contain clothing, boots, belt buckles, money bags, a saw, an axe, ropes, and bottles of liquor. After examining the contents of the car, the officers returned the various items to the car, locked it and left it at the motel.

On the afternoon of the following day, May 6, Officer Gallagher of the Eureka Police Department arrived in Cloverdale with warrants for defendants' arrest and took them into his custody. Before leaving Cloverdale, Gallagher removed the contents of Moorhead's car. Gallagher then drove defendants to Eureka after advising them, at the commencement of the trip, that anything they said could be used against them, that they were entitled to remain silent, that they were entitled to an attorney, and that one would be appointed if they could not afford one. Dahlke made no response, but Moorhead indicated that he intended to hire his own attorney.

Gallagher testified that he interrogated cach defendant separately. He took two statements from each defendant, and all four interviews were tape recorded. The transcript of the first interview with Moorhead indicated that he was advised, at the outset, of his right to an attorney, his right to remain silent and that anything he said could be used against him in a court of law. At the commencement of the second interview, Moorhead was asked if he had been advised of his rights and replied that he had.

After telling the officer that he acquired the articles found in his car by purchase from a stranger in a parking lot for $100, Moorhead stated that the crowbar which was in his possession at the time of his arrest had been brought from Nevada and that he frequently packed a crowbar for protection.

The transcript of the interview with Dahlke shows that Gallagher first asked him whether it was correct that he had previously been advised of his rights to an attorney and that anything he said might be used against him in court. Dahlke indicated that he had been so advised. At the commencement of the second interview, Gallagher told Dahlke that he had advised him of his rights earlier and then repeated that he had a right to an attorney and that anything he said could be used against him.

Dahlke told the officer that he bought the things found in Moorhead's car for $100 from a stranger who took him to his apartment where he was shown the articles and the purchase was made. When asked about the crowbar found on his person, Dahlke gave the same answer as Moorhead.

Various other witnesses for the prosecution testified that their respective premises had been burglarized and identified various items in Moorhead's car as part of the merchandise taken in the burglaries. Additionally, witness Louis Thietje recalled that both defendants had been in his bar on the afternoon preceding the burglary and that they had had occasion to enter the men's restroom, through the wall of which entry had been made into the premises.

Officer Gallagher investigated one of the burglaries and removed a sample of aluminum roof coating from around the skylight. He sent the sample to the Federal Bureau of Investigation, where the same was analyzed and found to match in texture type and composition a smear on a glove found on one of the defendants. Another burglary produced certain marks on pieces of plywood which were examined under the microscope and compared with test marks made by the two crowbars found in defendants' possession. The marks on the wood were found to have been made by the two crowbars.

Defendants offered no evidence on their own behalf.

Defendants' first contention is that the items taken from Moorhead's car were the product of an illegal search and seizure and, since defendants properly raised this objection in the court below, should have been excluded from evidence. Defendants assert that the police searched the car without a search warrant and that said search was neither incidental to their arrest nor made pursuant to their consent. Since the People concede that the search was made without a warrant and was not incidental to defendants' arrest, the sole question before this court is whether defendants can be deemed to have consented thereto.

Defendants do not dispute the evidence that when Moorhead was asked whether had had any objection to the police searching his car, he indicated that he had none, shrugged his shoulders and said, 'Do what you want.' However, defendants assert that Moorhead's apparent consent was vitiated by the fact that he had not previously been advised either of his right to refuse consent, his right to remain silent or his right to have counsel appointed in the event he could not afford to retain one. (See Miranda v. State of Arizona (1966) 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694.) Defendants also contend that Moorhead's consent was not voluntary but the result of a complete assertion of authority by the police.

Defendants' contention that a consent is invalid when obtained from a defendant who is in police custody and who has not first been advised of his right to refuse consent may not be sustained. In the recent case of People v. Campuzano (1967) 254 A.C.A. 60, 61 Cal.Rptr. 695, defendant consented to a search of his house at a time when he was handcuffed and under arrest and had not been advised of his right to withhold consent to a warrantless search. The court nevertheless held the consent to be valid, stating, 'The test on appeal is whether there is substantial evidence of consent in fact. The law does not prescribe any particular form of words to be spoken by the officer as a prerequisite. The evidence here supports the finding that the consent was genuine, and hence the search was legal.' (p....