People v. Garrison

• Citation: 11 Cal.Rptr. 398,189 Cal.App.2d 549
• Decision Date: 28 February 1961
• Docket Number: Cr. 3081
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jimmie GARRISON, Defendant and Appellant.
• Court: California Court of Appeals

Page 398

11 Cal.Rptr. 398

189 Cal.App.2d 549

PEOPLE of the State of California, Plaintiff and Respondent, v. Jimmie GARRISON, Defendant and Appellant.

Cr. 3081.

District Court of Appeal, Third District, California.

Feb. 28, 1961.

A. Richard Backus, Sacramento, for appellant.

Stanley Mosk, Atty, Gen., by Doris Maier and C. Michael Gianola, Deputies Atty. Gen., for respondent.

WARNE, Justice pro tem.

The defendant was charged by information of five counts of forgery in violation of Section 470 of the Penal Code. A jury found him guilty on all counts. He has appealed from the judgment.

The record shows that between the hours of 5 P.M. and 11 P.M. on October 5, 1959, the office of the Starwin Lumber Company located in Arcata, California, was burglarized. The company's check protector and two packages of checks printed by the Bank of America National Trust and Savings Association, Arcata Branch, with the legend 'Francis Hurd, c/o Starwin Lumber Company, Blue Lake, California,' on each check were stolen from this office. Francis Hurd, who was in the trucking business and working from the Starwin Lumber Company at this time, had previously opened a checking account at this bank. In compliance with Hurd's request the bank had mailed these checks to the Starwin Lumber Company's office in order that he could pick them up there.

In the forenoon of October 9, 1959, the appellant met one Rex Stevens in a cafe in Eureka. Appellant told Stevens he had blank checks which could be negotiated. Stevens, who was using the name of Paul Dullanty, a deceased person, had in his possession the deceased's 'identification.' He informed appellant that they could use the name as the payee on these checks. At the time they met, appellant was using the name of Bill Stewart. That evening they drove to Crescent City in appellant's automobile. Stevens agreed to purchase the necessary oil and gas for the appellant's automobile in which to make the trip and return to Eureka. Once in Crescent City, Stevens cashed five of the forged checks in five different bars. Appellant would remove from between the pages of a magazine a stolen check which had been filled in as to the amount prior thereto by the use of a check protector. He would then, in the presence of Stevens, write in the name of Francis Hurd as drawer, and Paul Dullanty as payee and then hand it to Stevens. The checks were endorsed by Stevens with the name 'Paul Dullanty.' Three of the checks were in the amount of $46.73, and two were for $46.93. Stevens would then take a check into a bar, have it cashed, return to appellant's car and divide the proceeds with appellant. Stevens testified that he didn't know how appellant obtained these checks. After Stevens cashed the five checks, he and appellant went to a restaurant in Crescent City to eat. After they left the restaurant and were about to enter appellant's car, they were arrested, put into a police car, and driven to the various bars where the checks had been cashed. Stevens was then taken into the bars by one of the officers and was identified by the bartender as the man who cashed one of the checks there. While Stevens was thus being identified appellant remained in the police car with the other officer. Following that procedure, Stevens and appellant were taken to the jail where Stevens was booked on a charge of suspicion of forgery, but appellant was booked only on a 'vag detainer.'

On the night of appellant's arrest his automobile was impounded by the police. Thereafter, the vehicle was searched and various items were discovered implicating appellant in the forgeries.

Appellant contends that the items taken from his automobile were the products of an unlawful search and seizure and should not have been introduced as evidence against him. Respondent claims that appellant may not for the first time on appeal claim error since no objection or motion to strike was properly made during the trial. It is clear that appellant did object to the admission in evidence of the exhibits in question at the time they were admitted. However, on November 18, 1959, the date originally set for the trial of the case, appellant attempted to make an oral motion to strike certain exhibits which had been produced at his preliminary hearing in the justice court on the ground that they were obtained by an illegal search and seizure. The trial court at that time refused to entertain the motion since the matter was set for trial. Thereafter, on the morning of December 7, 1959, while a jury was being selected to try the case, and immediately following appellant's refusal to let the public defender act as his attorney and his determination to defend himself, the record shows the following:

'Mr. Garrison: Then, Your Honor, in my own behalf, at this time I would like to make a motion that People's Exhibit 2, People's Exhibit 3, People's Exhibit 4 and anything, with the exception of People's Exhibit 1, under Section 1527, 1537 of the Penal Code be stricken from the record * * *. I was arrested and booked on a vag detainer. They went down the next day and took a crowbar and pried open my car, with which they obtained some articles which they wished to hold in evidence and under Section 1527, 1537 of the Penal Code, it was obtained under--through unlawful search and seizure.

'The Court: For your information, Mr. Garrison, there have been some very recent cases which go just to the contrary and which hold that in a case of this kind there has been no illegal search and seizure. So, the motion is denied.

'Mr. Garrison: There was no illegal search and seizure, Your Honor, may I----

'The Court: (interposing) No, the motion is denied.

'Mr. Garrison: May I read this little article to the Court. '--It has been extended to cover not only a man's--' and this is recent-- '--a man's home but his hotel room, the basement he rents to sell dope or lottery tickets, his house of prostitution, his barn full of stolen goods, the shack in which he makes illicit whiskey, even the wood lot on the back forty of his hideaway farm.'

'The Court: Unfortunately those are decisions not of this State, Mr. Garrison. The decisions in this State are to the contrary. The motion is denied.

'Mr. Garrison: Your Honor, the Constitution----

'The Court: (interposing) I have ruled. Just a moment. I have ruled on the motion. When I make a ruling on a motion, I don't want you to argue with my rulings. I will hear you, as I have heard you, prior to the time that I rule but after I rule you are bound by my rulings. I am not going to have you arguing with the Court's rulings.

'Mr. Garrison: Then, you wish to go on record that you are ruling----

'The Court: (interposing) The Court Reporter is making a record of this. There will be a complete record of it.

'Mr. Garrison: You wish to go on record as refusing----

'The Court: (interposing) Sit down, Mr. Garrison. I have ruled. Now, I have ruled.

'Mr. Garrison: Fair enough.

'The Court: When I have ruled I don't want you arguing with my rulings.'

Thus it is apparent that the trial court gave appellant no further opportunity to set forth in detail the ultimate facts upon which he relied in support of his motion. We feel that this was an abuse of discretion upon the part of the trial court.

Since the appellant is not a lawyer, his objection that the exhibits in question were obtained illegally and without his consent is a sufficient one, although he did not properly object at the trial. People v. Chapman, 151 Cal.App.2d 59, 61, 311 P.2d 190.

Turning now to appellant's contention, the record shows that appellant's automobile, which had been impounded, was searched by the police without a warrant four days after the arrest. A cellophane bag containing five checkbooks was found under the hood of appellant's car. Other checks were found in the back seat of the automobile. A check protector was found in the trunk. These items were introduced into evidence at the trial with the exception of the check protector. However, a thumbprint taken from the check protector was admitted into evidence. The record clearly shows that appellant did not consent to the search by the police; but that the police conducted the search on authority from the Chief of Police and forcibly opened the car's trunk with a crowbar. Appellant argues that the search was in violation of his constitutional rights against unlawful search and seizure. California Constitution, Article I, section 19; Constitution of the United States, Amendment IV. If the search was unconstitutional, the evidence obtained through the search would be inadmissible in the trial court. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513. Testimony relating to an unlawful search is also inadmissible (People v. Berger, 44 Cal.2d 459, 282, P.2d 509; People v. Dixon, 46 Cal.2d 456, 296 P.2d 557), as is also testimony relating to the fruits of an unlawful search.

A limited right to search without a search warrant exists where the search is incidental to a lawful arrest. To be 'incidental to' an arrest, the search must be contemporaneous therewith. People v. Dominguez, 144 Cal.App.2d 63, 300 P.2d 194. While it has been held that the search may precede the arrest (People v. Simon, 45 Cal.2d 645, 290 P.2d 531; Gascon v. Superior Court, 169 Cal.App.2d 356, 337 P.2d 201), or may follow the arrest by forty-five minutes and still be reasonably 'contemporaneous' with the arrest (People v. Dominguez, supra), we do not believe that this requisite is fulfilled under the facts of the instant case. State v. McCollum, 17 Wash.2d 85, 136 P.2d 165, 141 P.2d 613, supports this position. There the search of defendant's house was conducted on the day following the arrest. Although three of the Justices of the Supreme Court of the State of Washington felt that the admission of evidence was nonprejudicial, they and two other Justices were of the opinion that the search was not incidental to the arrest. In ...