People v. Esters

• Decision Date: 08 October 1963
• Docket Number: Cr. 4277
• Citation: 34 Cal.Rptr. 264,220 Cal.App.2d 917
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Nick ESTERS, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 264

34 Cal.Rptr. 264

220 Cal.App.2d 917

The PEOPLE of the State of California, Plaintiff and Respondent, v. Nick ESTERS, Jr., Defendant and Appellant.

Cr. 4277.

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

Oct. 8, 1963.

Hearing Denied Dec. 4, 1963.

Robert S. Field, San Jose, for appellant (Court Appointed).

Stanley Mosk, Atty. Gen. of State of California, Albert W. Harris, Jr., Michael J. Phelan, Deputy Attys. Gen., San Francisco, for respondent.

SALSMAN, Justice.

Appellant was convicted of receiving stolen property (Penal Code, § 496). He was also charged with a prior felony conviction, and the jury found this charge to be true. He appeals from the judgment, contending first that certain evidence should have been excluded by the trial court because it was the product of illegal search ans seizure, and second that the trial court is in error in finding that his prior conviction is a felony rather than a misdemeanor.

The evidence is that on January 7, 1962 a burglary occurred at a Shell service station in Richmond. Property stolen in that burglary consisted of four white wall tires, three batteries, six cases of Shell X-100 motor oil, and various other items not here relevant. On January 10, 1962 appellant and a companion drove a car into a service station in Richmond operated by Cornelius Jones. Appellant asked Jones if he wished to buy some batteries. Jones asked to see the batteries and appellant opened the trunk of his car. In the trunk compartment Jones saw batteries, tires, and several cans of Shell X-100 motor oil. Jones told appellant he did not wish to buy any of the items, and appellant and his companion then drove away. Jones knew of the burglary of the Shell station from an account he had read in a newspaper, and had some knowledge of the property stolen in that burglary. He thought the items he had seen in appellant's car were stolen from the Shell station. He noted the license number of appellant's car and after appellant left, Jones called the police. Officer Leoppard responded and took a statement from Jones. The officer also knew of the burglary of the Shell station and had seen a list of the stolen property on the 'Hot Sheet' issued by the police department. Jones gave Officer Leoppard a description of appellant and his companion, a description of appellant's car and its license number, and described the items he had seen in the trunk of appellant's car. Officer Leoppard caused this information to be broadcast at once and half an hour later appellant's car was found parked and unoccupied on a Richmond street. Officers waited until appellant returned to his car, which was about two and one-half hours after the car was first located. Appellant was arrested on sight and his car searched. In the trunk compartment the officers found the property described by Jones. At trial this property was identified by its owner as part of the loot taken in the burglary of the Shell station. Appellant testified in his own defense, and stated that he had purchased the items found in this possession from a stranger; that he paid $40 for them; that he asked the seller if the items were stolen and was assured they were not stolen property.

In considering appellant's claim of illegal search and seizure we must first consider whether the officers had probable cause to arrest appellant, because if probable cause to arrest is established, then a search as an incident to the arrest would not be unlawful.

A police officer may make an arrest without a warrant whenever he has reasonable cause to believe that the person to be arrested has committed a felony. (Penal Code, § 836(3)). There is no precise formula for the determination of reasonableness, and each case must necessarily be decided upon its own facts and circumstances, or as some cases have said 'on the total atmosphere of the case.' (See People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580, and cases cited.) Reasonable cause to arrest has been defined to be such a state of facts as would lead a man of ordinary prudence to believe and conscientiously entertain a strong suspicion that a person is guilty of a crime. (People v. Ingle, supra, at p. 412 of 53 Cal.2d, at p. 16 of 2 Cal.Rptr., at p. 579 of 348 P.2d.) Reasonable cause exists 'if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.' (Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134.)

A search made as an incident to a lawful arrest, that is one based upon reasonable cause to believe that the person arrested has committed a felony, is a lawful search, even though made without a warrant. (United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; People v. Hammond, 54 Cal.2d 846, 853, 9 Cal.Prtr. 233, 357 P.2d 289; People v. Ingle, supra, at p. 413 of 53 Cal.2d, at p. 17 of 2 Cal.Rptr., at p. 580 of 348 P.2d.)

Here the trial court, in admitting the evidence, determined that the officers had reasonable cause to arrest appellant and that the search incident to the arrest was reasonable. We find no reason to disturb the trial court's finding. When Officer Leoppard responded to the call from Jones hd had knowledge of the burglary at the Shell station, and from his familiarity with the 'Hot Sheet' of the police department he knew in a general way the kind of property stolen in that burglary. In his testimony the officer stated that the 'Hot Sheet' listed 'motor oil, and batteries and tires'. Jones told the officer he had seen motor oil, batteries and tires in the trunk compartment of appellant's car, and that appellant had tried to sell these items to him. Thus, information obtained by the officer from Jones tended to corroborate information...