People v. Ellsworth

• Decision Date: 05 April 1961
• Docket Number: Cr. 1471
• Citation: 190 Cal.App.2d 844,12 Cal.Rptr. 433
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Appellant. v. Gerald Lynn ELLSWORTH, Respondent.

Page 433

12 Cal.Rptr. 433

190 Cal.App.2d 844

PEOPLE of the State of California, Appellant. v. Gerald Lynn ELLSWORTH, Respondent.

Cr. 1471.

District Court of Appeal, Fourth District, California.

April 5, 1961.

Rehearing Denied May 2, 1961.

Hearing Denied May 31, 1961.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., James Don Keller, Dist. Atty., and Arthur J. O'Keefe, Asst. Dist. Atty., San Diego, for appellant.

Adams & Tom, and Richard E. Adams, San Diego, for respondent.

COUGHLIN, Justice.

This is an appeal from an order setting aside an information charging the defendant with the offense of possession of marijuana, i.e., a violation of Section 11530 of the Health and Safety Code, upon the ground that he had been committed without reasonable or probable cause in that the only evidence of such possession was obtained by an illegal search and seizure.

On the night of August 26, 1960, at 10:45 o'clock, two deputy sheriffs were on patrol duty in the Bonita Mesa area of San Diego County. As the officers drove into a dirt road which had the reputation of being a lover's lane, was a block and a half in length, and was surrounded by truck farms and residences, they saw a Pontiac sedan with its lights out, parked ahead of them on the roadway; immediately the lights of the Pontiac went on and it proceeded to drive away at a normally accelerated rate of speed. The officers started in pursuit; lit the red light on the patrol car and sounded the siren. After going about three-quarters of a block up the road the Pontiac came to a stop; the defendant alighted therefrom; walked to the rear thereof; and was met by the officers who noticed that the fly of his trousers was open, revealing a brown paper object. When the defendant was asked what the brown paper object was, he looked down at it and said: 'Marijuana.' Thereupon the object was taken from him and proved to be a brown paper sack containing marijuana. The officer who testified at the preliminary hearing stated that he had no report to be on the lookout for a Pontiac or its occupants; that he was prompted to put on the red light and siren because the defendant attempted to elude him.

The defendant contends that the action of the officers in stopping him was illegal; that this illegality permeated the subsequent seizure; and that the evidence obtained thereby was inadmissible.

The brown paper object was not discovered as the result of a search; it was in plain sight; no search was involved. People v. Linden, 185 Cal.App.2d 752, 8 Cal.Rptr. 640; People v. Murphy, 173 Cal.App.2d 367, 377, 343 P.2d 273; People v. Williams, 169 Cal.App.2d 400, 402, 337 P.2d 134; People v. Spicer, 163 Cal.App.2d 678, 683, 329 P.2d 917; People v. Ambrose, 155 Cal.App.2d 513, 522, 318 P.2d 181; People v. West, 144 Cal.App.2d 214, 219, 300 P.2d 729; People v. Jaurequi, 142 Cal.App.2d 555, 561-562, 298 P.2d 896. When the defendant told the officers that this object was marijuana their seizure thereof was made upon probable cause. People v. Martin, 45 Cal.2d 755, 761, 290 P.2d 855; People v. Davis, 188 Cal.App.2d 718, 10 Cal.Rptr. 610. He may not now assert that this information was revealed in response to an implied assertion of unlawful authority. People v. Michael, 45 Cal.2d 751, 753-754, 290 P.2d 852; People v. Jaurequi, supra, 142 Cal.App.2d 555, 560, 298 P.2d 896. Therefore, under the contentions advanced, the determinative issue is whether the officers illegally stopped the defendant.

'Whether an officer has a right to stop a car and interrogate the occupant is an issue quite separate from whether he has a right to stop the car and to arrest the occupant and conduct a search.' People v. King, 175 Cal.App.2d 386, 390, 346 P.2d 235, 238; People v. Gale, 46 Cal.2d 253, 257, 294 P.2d 13.

The courts of this state consistently have adhered to the proposition that a police officer may question a person outdoors at night when the circumstances are such as would indicate to a reasonable man in like position that such a course is necessary to the discharge of his duties (People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57; People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531; People v. Murphy, supra, 173 Cal.App.2d 367, 377, 343 P.2d 273; People v. Jackson, 164 Cal.App.2d 759, 761, 331 P.2d 63; People v. Wiley, 162 Cal.App.2d 836, 839, 328 P.2d 823; People v. Ambrose, supra, 155 Cal.App.2d 513, 521-522, 318 P.2d 181; People v. West, supra, 144 Cal.App.2d 214, 216-219, 300 P.2d 729; People v. Jiminez, 143 Cal.App.2d 671, 673, 300 P.2d 68; People v. Jaurequi, supra, 142 Cal.App.2d 555, 560, 298 P.2d 896; Gisske v. Sanders, 9 Cal.App. 13, 16, 98 P. 43), particularly when the person to be interrogated is parked in an automobile on a secluded highway, commonly referred to as a lover's lane. People v. Martin, 46 Cal.2d 106, 108, 293 P.2d 52. The right to interrogate, under the circumstances noted, includes the right to stop the automobile in which the person to be interrogated is riding. People v. Davis, supra, 188 Cal.App.2d 718, 10 Cal.Rptr. 610; People v. King, supra, 175 Cal.App.2d 386, 390, 346 P.2d 235; cf. People v. Blodgett, supra, 46 Cal.2d 114, 117, 293 P.2d 57; People v. Wiley, supra, 162 Cal.App.2d 836, 837, 328 P.2d 823. Such a procedure does not constitute an arrest even though the person interrogated may be detained momentarily (People v. Davis, supra, 188 Cal.App.2d 718, 10 Cal.Rptr. 610; People v. Anushevitz, 183...