People v. Daw
| Decision Date | 21 November 1968 |
| Docket Number | Cr. 3210 |
| Citation | 267 Cal.App.2d 560,73 Cal.Rptr. 89 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. John Robert DAW, Defendant and Appellant. |
John Robert Daw was convicted after jury trial of possessing marijuana (Health & Saf.Code, § 11530). He was granted probation upon conditions, and appeals from the probation order deemed a final judgment (Pen.Code, § 1237).
On April 27, 1967, driver Daw and two companions were traveling east on Highway 80 near Lake Jennings Road in Daw's Volkswagen bus when its loud noise and smoke belching attracted the attention of Deputy Sheriffs Gore and Rickly. Following Daw's vehicle, the officers observed it weaving several times from the shoulder to the center line of the freeway. Officer Gore suspected the driver might be intoxicated. The officers stopped the Volkswagen; they were justified in doing so to investigate possible Vehicle Code violations. (People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Slade, 264 A.C.A. 227, 228, 70 Cal.Rptr. 321.)
Officer Gore went to the driver's side of the bus. The window was open and the officer noted a strong smell of incense. Gore asked Daw for his driver's license. Daw had difficulty locating it as he thumbed through his wallet. Gore then asked Daw to step from the vehicle. Daw alighted, had to support himself with his hand on the side of the bus, was unsteady on his feet, and walked with a floating effect, stepping higher than necessary, to the rear of the bus.
Gore asked Daw why he was unsteady. Daw replied he was under the influence of creation. Daw's eyes were dilated and his speech slurred. Asked if he had been drinking alcohol, Daw said he was under the influence of nature. Daw was asked at various times if he had used marijuana. He said Daw became very nervous when the subject of interrogation touched upon narcotics or marijuana. At one point when asked a question Daw spread his arms and stared at the sun without blinking.
Officers Gore and Rickly conferred after approximately ten mintues of questioning Daw. Rickly asked Gore if he thought Daw 'was under the influence of something, if he was drunk or something'. Gore may have stated he thought Daw was under the influence of marijuana. Rickly testified
Rickly took over the questioning to satisfy himself 'beyond a reasonable doubt that he would be under the influence.'
Rickly asked Daw if he was under the influence of marijuana. Daw answered There were several accusatory statements or questions directed to Daw by the officers regarding their feeling Daw was under the influence of marijuana.
The officers asked Daw if they could search the bus. He respondended, 'Why ruin my life for something that will be legal in four months.'
Officers Gore and Rickly again conferred and finally were able to agree there was sufficient evidence to arrest Daw for being under the influence of marijuana.
Rickly arrested Daw for being under the influence of marijuana, and told him his Miranda rights. Daw said he understood his rights.
There can be no question the officers' interrogation of Daw had reached an accusatory stage designed to elicit incriminating statements well before he was told his constitutional rights to counsel and to remain silent. Even more remarkable than the officers' belated advice to Daw is Daw's trial attorney's failure to object to the pre-Miranda warning admissions or to make any motion to strike them. The officers were not taken on voir dire. The damaging statements and admissions were revealed to the jury with no ruling concerning their admissibility requested of the trial court.
In the course of a motion to suppress evidence which was found by a search of the bus after Daw's arrest, Daw's attorney, at the end of the People's case, mentioned as a ground of that motion, 'The admissions that came in after Officer Gore had formed an opinion, reasonably or not, was certainly a violation of Miranda.' However, no motion to strike the admissions which had come in without objection was made. Because this trial was held after January 29, 1965, the date of the final decision in People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 261, Daw's failure to object to the introduction of his pre-Miranda warning admissions operates as a waiver of the Escobe-do-Dorado objection. (People v. Doherty, 67 Cal.2d 9, 13--14, 59 Cal.Rptr. 857, 429 P.2d 177; People v. Huddleston, 263 A.C.A. 498, 503, 69 Cal.Rptr. 857.)
As Officer Rickly arrested and warned Daw, Officer Gore searched the vehicle. He found a small wooden box containing four marijuana cigarettes located on a shelf under the dashboard to the left of the steering column. Daw and his companions were then arrested for possessing marijuana.
The officers radioed for a narcotics unit. Deputy Sheriff Narron responded and conducted a further search of the bus finding cigarette papers, a coin purse containing marijuana debris and a sandwich bag containing 43 1/2 grams of marijuana, enough for 40 extra large marijuana cigarettes. The bulk marijuana was found in a suitcase belonging to one of Daw's passengers. Marijuana debris was found in Daw's pockets.
After he had been told his Miranda rights, Daw admitted he knew marijuana was in the car. Daw and his passengers were on a trip to Mexico. He was asked why he was transporting marijuana into Mexico when it would be easily obtained there. Daw said it was a long trip and he would need it to relax. Daw tried to convince Officer Rickly marijuana was a good thing and offered to share it with Rickly.
Daw admitted at the trial the box in which the four marijuana cigarettes were found...
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