People v. Giles, Cr. 4732

• Decision Date: 19 April 1965
• Docket Number: Cr. 4732
• Citation: 43 Cal.Rptr. 758,233 Cal.App.2d 643
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Marvin Ray GILES, Defendant and Appellant.

Page 758

43 Cal.Rptr. 758

233 Cal.App.2d 643

PEOPLE of the State of California, Plaintiff and Respondent, v. Marvin Ray GILES, Defendant and Appellant.

Cr. 4732.

District Court of Appeal, First District, Division 2, California.

April 19, 1965.

Hearing Denied June 16, 1965.

Peter Schwarz, San Francisco, for appellant (under appointment of the District Court of Appeal).

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Clifton R. Jeffers, Deputy Attys. Gen., San Francisco, for respondent.

AGEE, Justice.

Defendant's sole contention on appeal is that the marijuana which he was convicted of possessing was obtained by a search of his person incident to an unlawful arrest and was therefore inadmissible in evidence. (People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513.)

Appellant's status as a state paroled prisoner is relevant to a determination of this contention. He had been convicted of robbery, pursuant to which he had served a term in a California state prison, and was on parole from such conviction at the time of the events related below.

Appellant had failed to report to his parole officer, who had been looking for him without success and who had asked the Oakland Police Department to arrest him as a parole violator.

With this background, we approach the events of February 7, 1964. On that day two liquor stores on MacArthur Boulevard were robbed at gunpoint. Inspectors Prince and Ramos of the Oakland Police Department found a witness who saw appellant run from the rear of a building near the scene and at the time of one of the holdups. The witness knew appellant because he had previously lived in the apartment house which the witness managed. Appellant jumped into a Chrysler made car which was then driven away rapidly by another man who had a beard.

Inspector Prince radioed police headquarters to get more information on appellant. He ascertained that appellant was on parole, that his parole officer wanted him apprehended as a parole violator, and that appellant and one Robert Waldo had been charged with possession of narcotics and had been stopped with guns in their car.

The inspectors learned through appellant's relatives that he might be living in a house on MacArthur Boulevard with a man named 'Larry,' who had a beard and owned a Chrysler automobile, and that Waldo also stayed there at times.

When no one answered their knocks at this house, the inspectors entered by slipping the screen door latch with a screwdriver and then unlocking the door itself with a key furnished by the real estate agent who had charge of renting the property. They found appellant standing in the middle of the dining room.

Inspector Prince told him that he was under arrest and searched him, finding a vial containing marijuana in his front pocket. The arrest and search were warrantless.

Inspector Prince did not tell appellant at the time of the arrest what he was being arrested for. The police were, of course, mainly interested in investigating the robberies and appellant was booked for 'investigation of robbery.' However, the decisive issue here is whether appellant was lawfully in custody at the time he was searched by Inspector Prince.

Appellant did not testify at the (nonjury) trial or make any effort to controvert any of the foregoing facts. The recording of an oral statement made by appellant to the police was played back to the court during the trial. By stipulation the statement was not transcribed and we have no indication as to what was said therein.

Appellant makes no claim that the search of his person was not incident to the arrest or that the parole officer acted arbitrarily or without reasonable cause in requesting that he be apprehended as a parole violator.

The right of a paroled prisoner to avail himself of the exclusionary rule established by People v. Cahan, supra, has been considered in number of decisions.

In People v. Denne, 141 Cal.App.2d 499, 297 P.2d 451, the court upheld the evidentiary use of marijuana discovered by a parole officer who had gone to the defendant's apartment to take him into custody as a parole violator and had entered and searched the apartment in his absence.

Speaking for the court, Mr. Justice Fox said: 'The situation in the instant matter differs significantly from that involved in the Cahan case, and all others decided since the adoption of the exclusionary rule, since the problem confronting the court in those cases was either the propriety of the arrest of a private person, with which the complained of search and seizure was conjoined, or whether the search incidental to the arrest of the private individual was reasonable * * *.' The vital distinction here is that on the occasion of the search defendant was not an ordinary individual merely suspected of a crime but a convict on parole. A prisoner released on parole is not a free man. * * * The granting of parole does not change his status as a prisoner. The parolee is not discharged but merely serves the remainder of his sentence outside rather than within the prison walls. * * * It is unnecessary for a parole officer to apply for a warrant to 'arrest' a parolee who is already his prisoner and who is at all times in custodia legis. The administration of the parole system must be realistic, and not strangled in technical niceties. A parole officer's physical apprehension of his prisoner for suspected violation of parole is not an 'arrest' in the sense that a peace officer arrests a private individual suspected of a crime but a mere transfer of the subject from constructive custody into actual or physical custody.' (141 Cal.App.2d at pp. 507-510, 297 P.2d pp. 456-458....