People v. Davis

• Decision Date: 31 January 1961
• Docket Number: Cr. 7304
• Citation: 188 Cal.App.2d 718,10 Cal.Rptr. 610
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Elzie DAVIS, Defendant and Appellant.

Page 610

10 Cal.Rptr. 610

188 Cal.App.2d 718

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Elzie DAVIS, Defendant and Appellant.

Cr. 7304.

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

Jan. 31, 1961.

William T. Pillsbury and Thomas D. Griffin, Long Beach, for appellant.

Stanley Mosk, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant was convicted of violating section 11530, Health and Safety Code (possession of marijuana). He has appealed from the judgment (order granting probation).

During the early afternoon of January 19, 1960, Officer Edgar P. Brown, of the Los Angeles Police Department, Harbor Division, Narcotic Detail, had the El Nido Cafe, located in Wilmington, under surveillance because of its reputation as a source of narcotic activity. There were three well known narcotic peddlers in the cafe at that time. Adjoining this cafe is the Park'n Snack Restaurant. Both establishments are under the same roof and use the same parking lot. At approximately 1:40 that afternoon Officer Brown observed defendant, with two other persons in his car, drive through an adjacent alley and across the parking lot behind the El Nido Cafe. The officer presumed that defendant observed him at that time but did not know that he did. Defendant did not stop his car but drove out onto the highway. The police followed. They observed defendant make two left turns, a right, and then a U-turn within three or four blocks. The officer's suspicions were aroused by reason of having seen defendant drive into the parking lot of the El Nido Cafe and drive out without stopping and then proceed to make so many turns in such a short distance. As a consequence, when defendant was completing his U-turn, Officer Brown and his partner, Sergeant King, pulled up alongside. Both cars stopped. Officer Brown went to the driver's side. Defendant was seated behind the wheel. King went to the other side of the vehicle. Brown identified himself and his partner as police officers. Upon looking through the car window, Officer Brown noticed there was only a single key on the dashboard--the key in the ignition. He had observed that drivers normally had a key ring with other keys, or a license number, or a key case attached. This circumstance, therefore, struck him as being unusual, indicating 'possible criminal action'--the theft of the car. The officer asked defendant '* * * how come there was only one key * * *' Defendant replied, '* * * my key chain was busted.' The officer then told defendant 'to keep his hands in sight,' and opened the door. At this point Officer Brown further testified: 'Upon opening the door I had to step back. I looked in, and I noticed a brown wrapped paper cigarette next to his seat, between the seat and the door of the car.' The officer asked the defendant what the cigarette was. Defendant replied, 'I think it is a marijuana cigarette.' The officer then took possession of the cigarette and placed the defendant under arrest. Chemical analysis proved that the cigarette contained marijuana.

Defendant's explanation of driving through the parking lot was that he was looking for his school friends. He did not live in that area but attended Wilmington school. He knew the eating place on the lot called Park'n Snack but did not know of the El Nido Cafe. There was no request by the police to search the car and no consent was given therefor.

Following defendant's arrest, the police had two conversations with defendant. In the first, defendant insisted that the marijuana cigarette had been planted on him. Later that same day, defendant admitted that his story about the cigarette being planted was not true. He then stated that 'he had scored five joints in Los Angeles' and had paid $2.50 for the five; that he had smoked four of them the previous night and must have dropped this one because he got pretty high.

In seeking a reversal defendant's basic contention is that the cigarette was obtained by an illegal search and therefore was not admissible in evidence. The position of the People is that the police, under the circumstances here disclosed, were justified in stopping defendant and interrogating him, and that there was no search, and therefore the cigarette in question was property received in evidence and the conviction must be sustained. We have concluded that the position of the People is correct.

The reasonableness of the action of police officers must be determined on the basis of the facts and circumstances as they appeared to the officers at the time they were required to act. People v. Evans, 175 Cal.App.2d 274, 276, 345 P.2d 947. The courts have constantly recognized the right of the police to stop persons and to question them where the circumstances appear to warrant such action. While each case must be decided upon its own facts, the results reached in somewhat similar factual situations are helpful. In People v. One 1958 Chevrolet, 179...