People v. Gibson

• Decision Date: 10 September 1963
• Docket Number: Cr. 4217
• Citation: 33 Cal.Rptr. 775,220 Cal.App.2d 15
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence Dale GLBSON, Defendant and Appellant.

Page 775

33 Cal.Rptr. 775

220 Cal.App.2d 15

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence Dale GLBSON, Defendant and Appellant.

Cr. 4217.

District Court of Appeal, First District, Division 1, California.

Sept. 10, 1963.

As Corrected Sept. 18, 1963.

Rehearing Denied Sept. 30, 1963.

John H. Sutter, San Francisco, for appellant (Under appointment of District Court of Appeal).

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

BRAY, Presiding Justice.

Defendant was charged in the information with two counts of robbery and one of assault with a deadly weapon. At the trial, the district attorney dismissed the assault count. The jury found defendant guilty under the other two counts and fixed the degree of robbery as first degree. Defendant appeals from the judgment of conviction. He also purports to appeal from the order denying motion for new trial. ¹

QUESTIONS PRESENTED.

Defendant contends that his arrest and subsequent search were unlawful because (1) the officers illegally stopped him, and (2) the facts are insufficient to justify the arrest and search.

EVIDENCE.

On February 2, 1962, at approximately 3:00 a. m., a man wearing a black hat, brown coat, wearing sunglasses and having a blondish mustache robbed a gas station at 5330 Foothill Boulevard in Oakland. The robber, subsequently identified as the defendant, took approximately $50 and, upon leaving, struck the attendant several times on the head with a shiny object the attendant said looked like a gun. The attendant heard the robber run away and what sounded like taps on his shoes.

Between 3:00 and 4:00 a. m., the morning of February 6, 1962, a man, subsequently identified as defendant, entered a Shell gas station at 3811 San Leandro Boulevard, Oakland. The man was wearing a blue overcoat or topcoat, a black hat and sunglasses. Defendant placed something hard in the attendant's back, and forced the attendant to give over $60 or $70. The attendant then was rendered unconscious by a blow to the head.

At approximately 4:00 a. m. of February 6, 1962, Officer Phillips and Sergeant Warren of the Oakland Police Department were driving in a police vehicle in the vicinity of 85th Avenue and East 14th Street in Oakland. The weather was drizzly. At this time, they received a radio call concerning a robbery which had occurred at 38th Avenue and San Leandro Boulevard (the above mentioned Shell station). The robber was described as a white male wearing a dark colored hat, dark glasses and a leather coat. It was stated that he had used a piece of pipe or some metal object to hit the victim. Nothing was said about the robber having a car.

From their position at the time of the radio call, the officers drove south to San Leandro Boulevard and proceeded westbound thereon until they stopped at 77th Avenue for a red light. At this time, some one or two minutes after the radio reception, they observed a green MG roadster driven by defendant eastbound on San Leandro Boulevard stopped at the same red light. It continued eastbound when the light turned green. The officers executed a U-turn behind the MG and proceeded to follow it for about 16 blocks. The car was traveling about 25 miles per hour in a 35-mile zone. There was only one other car on the street at this time. The officers thought this speed was unusual at that time of night and became suspicious. They said that normally at that time of night cars travel faster than that. They thought the driver was drunk or possibly the robbery suspect because of his slower driving.

While they were following, the officers observed a motion in the MG which looked to them like 'someone was trying to put something in the back part of the car' or 'someone moving something in the car.' The officers then sounded the siren once and turned a red spotlight to the rear window of the MG to signal the driver to pull over and stop. Defendant failed to heed the signal for some 6 or 8 blocks and stopped only when the police car drew abreast of the MG and Sergeant Warren motioned defendant to pull over.

The officers parked to the rear of the MG and Sergeant Warren approached the car and shined a flashlight in at the driver. Defendant got out of the car when asked to do so by the sergeant and was told that the officers were investigating a robbery. The officers said that defendant while in the car had on a dark hat. The hat was left in the car when defendant got out, and appeared wet when the officers looked at it from outside the car. The officers thought it was the hat described in the radio description. The officers saw in the compartment behind the seat what looked like, and they thought was, a leather coat. Throughout this period the officers were standing outside the car looking into it with the aid of a flashlight. Sergeant Warren then patted down the outside of the defendant's clothing to feel for weapons and felt what seemed to be a pair of glasses in the left pants pocket. He then removed a pair of dark sunglasses from the defendant's pocket. Thereupon Sergeant Warren put his head or body in the car and the first thing he saw was a short length of pipe approximately 12 inches long, with a 'T' on it, which was in the compartment back of the bucket seats. The sergeant found the overcoat, which was dark blue (not leather) with $61 in one of the pockets. Defendant had no answer as to how he got the coat wet. Prior to the time the officer searched the car the defendant had been placed in the police car. The officers then made out an arrest report. Then they sent him to the police station in the paddy wagon. Before entering defendant's car the officers asked defendant if he had any money. He said that he did not. When later at the police station they asked about the $61 defendant stated that he had won it at the race track and forgotten all about it.

At the station, Inspector Madsen removed the defendant's shoes, finding that the left shoe had a tap on the heel and the right shoe had an indentation indicating that a tap had been affixed thereto.

Defendant testified in his own behalf. On February 2 and 6, 1962, he had been employed at the Chevrolet plant in East Oakland. He worked from 4:30 p. m. in the afternoon until 1:00 a. m. the following morning.

Defendant stated that on February 2, 1962, he got off work at 1:00 a. m. and was driven home by a friend, and that he spent the night at home with his wife. Neither the friend nor defendant's wife testified.

Defendant testified that on February 6, 1962, he got off work at 1:00 a. m., went home, cleaned up, and then went to a bar in West Oakland, staying there until it closed at 2:00 a. m. He said he then went with a woman he met in the bar to her residence and stayed there until 3:15 or 3:30 a. m. when he went to a restaurant at 12th and Broadway in Oakland and had something to eat. The woman defendant said he met did not testify.

Defendant said that while on the way home he did not see the officers' red light or hear the siren, that he was driving slowly because he had been drinking, that he had not worn the hat, coat or sunglasses that night; that he was wearing a black leath jacket. He further asserted that he won the money at a race track the previous Saturday, and that the pipe found in the car had been given to him some time previously by his father-in-law to connect a gas stove.

1. STOPPING THE DEFENDANT.

In California, the courts 'have consistently held that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning. If the circumstances warrant it, he may in self protection request a suspect to alight from an automobile or to submit to a superficial search for concealed weapons. Should the investigation then reveal probable cause to make an arrest, the officer may arrest the suspect and conduct a reasonable incidental search. [Citations.]' (People v. Mickelson (1963) 59 A.C. 465, 467-468, 30 Cal.Rptr. 18, 20, 380 P.2d 658, 660.) 'The courts of this state consistently have adhered to the proposition that a police officer may question a person out-doors 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. Ellsworth (1961) 190 Cal.App.2d 844, 846, 12 Cal.Rptr. 433, 435.) Thus, the standard is whether the facts and circumstances are such as would indicate to a reasonable man in a like position that an investigation is necessary to the discharge of his duties. (People v. Ellsworth, supra, 190 Cal.App.2d at pp. 846-847, 12 Cal.Rptr. at pp. 434-436 and cases there cited; see also People v. Alcala (1962) 204 Cal.App.2d 15, 19, 22 Cal.Rptr. 31.) Illustrative of the quantum of facts necessary to justify stopping a vehicle for investigation is People v. Porter (1961) 196 Cal.App.2d 684, 16 Cal.Rptr. 886, where officers were on patrol in a police car at about 3:25 a. m. They observed the defendant drive by with a companion. About 25 minutes earlier they had observed the defendant drive by on the same street alone. It was held on the basis of these facts that a stop for questioning was justified under the above noted standard. The fact that a driver proceeds at a speed slower than the speed limit under circumstances where he might normally proceed at the higher speed also is a factor appearing to justify an officer's investigation. (See People v. Alcala, supra, 204 Cal.App.2d 15, 22 Cal.Rptr 31; People v. Anguiano (1961) 198 Cal.App.2d 426, 18 Cal.Rptr. 132.)

In the case at bench the officers, within one or two minutes after the radio call concerning the robbery, saw defendant in his car on the same street on which the robbery occurred, although some 40 blocks away. After stopping at a red light the car did not speed up as the officers found that other...