People v. Green

• Decision Date: 01 July 1965
• Docket Number: Cr. 9299
• Citation: 235 Cal.App.2d 506,45 Cal.Rptr. 371
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene Dale GREEN, Defendant and Appellant.

Page 371

45 Cal.Rptr. 371

235 Cal.App.2d 506

The PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene Dale GREEN, Defendant and Appellant.

Cr. 9299.

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

July 1, 1965.

Robert A. Doyle, Hollywood, under appointment by the District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Justice.

By a jury verdict, defendants Eugene and Wesley Green were convicted of grand theft and of petty theft following prior felony convictions. ¹ It was found that Wesley had suffered four prior felony convictions and Eugene had two. Both defendants took appeals from the judgments, but Wesley's was dismissed on his own motion. Hence the appeal now before us is only that of Eugene.

Our statement of facts will be related to the sole assignment of error, namely, that the court below committed reversible error in receiving in evidence the stolen property which the police officers had taken from Eugene's automobile an hour or so after he had been arrested. Sufficiency of the evidence is not, nor could it reasonably be, challenged.

The record discloses that Eugene and Wesley were caught in the act of stealing various items of merchandise from a Sears, Roebuck store in Pasadena. Their joint operation was a crude but potentially effective device which sometimes enabled one of them to engage the attention of a clerk while the other managed to conceal selected items of property on his person and thereafter make his unnoticed departure from the store.

Following appellant Eugene's arrest at approximately 8:20 p. m., he was asked by Mr. Skutley, a 'Security Supervisor' employed by the store, whether he was driving an automobile. Appellant answered in the affirmative and told Mr. Skutley that he was driving a white 1956 Lincoln. Although he at once consented to a search of his car, appellant purposely misdirected Mr. Skutley to the vehicle of a stranger. This vehicle is described as a Lincoln but the record does not reveal its color or whether or not it was of 1956 vintage. Apparently the fact that it was not appellant's vehicle was patently obvious, for appellant failed to ask Mr. Skutley any questions in connection therewith. ²

Thereafter, at approximately 9 p. m., Eugene and Wesley were turned over to the Pasadena police. After these two suspects had been incarcerated, the police immediately resumed their search for Eugene's automobile. It was located at approximately 9:30 p. m. on a parking lot owned by the A & P Market. The two parking lots owned and operated by Sears, Roebuck and by the A & P Market were adjoining and, from a practical standpoint, one lot was no more than a paved continuation of the other.

Clearly observable through the windows of appellant's car were 7 pairs of trousers lying on the back seat. These trousers still had their 'raw cuffs,' i. e., as with all 'ready made' trousers, the bottoms of the trouser legs were of extra length ending in the jagged cuts made by pinking shears so that they might be altered to fit the customer and either turned outward for cuffs or inward for cuffless trousers. In addition, they still carried the price tags and the identifying tags of Hinshaw's Department Store, a neighboring place of business. It was obvious, of course, from the appearance of these items of merchandise that they had not been purchased because, in the course of the ordinary sale, tailoring of the trouser legs is completed and the tags are removed.

Also lying on the seat of this vehicle were 7 shirts with similar identifying tags, and 2 'disc sanders' still in their Sears, Roebuck cartons approximately 2 feet in length and 8 x 8 inches in their other dimensions. ³ Also there was an electric mixer set complete with bowls and stand. This item had the appearance of 'stolen fruit' because it was not contained in a box and it still carried on it the Sears, Roebuck price tag. Finally, there were a fishing line, several cartons of cigarettes, and some neckties.

Mr. Skutley testified that he did not see the registration slip on the car, but that before the officers impounded the car, he had seen various papers which were found in the glove compartment with the names of Eugene and Wesley Green thereon. ⁴ The doors to the car were unlocked, and, although the record is somewhat limited on the subject, it is not denied that all of these stolen items were clearly visible and identifiable from the outside.

The essence of appellant's contention is set forth in his brief as follows: 'A search at a location distant from the place of arrest, after the arrest has been completed, and when entry of the place has not been made prior to or at time of arrest, but after, is illegal in absence of a search warrant.'

The import of this contention is, to say the least, rather unclear. If appellant means to challenge the right of the officers to search for his car after his arrest, such contention clearly would be lacking in merit. In a metropolitan area the size of Los Angeles, it is most improbable that a team of department store thieves will transport their loot from urban or suburban areas on foot or by means of public transportation facilities.

When one suspect member of this acquisitive team tells the Sears, Roebuck investigator that he has driven to the store in an automobile described by him as a white 1956 Lincoln, ⁵ surely both the investigator and the police authorities to whom the information is relayed would be sadly derelict in the performance of their duties if they did not attempt to locate this car as rapidly as possible. This would be an obviously necessary step in order to prevent its disappearance and the potential loss of any previously stolen property it might contain.

Speed of discovery is particularly important in instances such as the present where the officers knew from eye witnesses, and almost to a certainty, that the two men taken into custody were operating as a team and that very possibly one or more others might have been involved. When appellant lied about knowing Wesley, a fact established by the observed conduct of the pair prior to their arrest, and then deliberately misdirected the officers to an automobile that he did not own, it obviously was a very logical assumption that his automobile most probably contained something that appellant desired very much to conceal.

In these circumstances a police officer of any competence naturally would regard it as his plain duty to locate this vehicle as quickly as possible. Common sence would suggest the possibility, if not the probability, that there might be other collaborators or someone who might drive the vehicle away from the vicinity or remove from it whatever stolen goods or other incriminating evidence it might contain. The officers also might reasonably apprehend that appellant could use his allowed telephone call from the jail to suggest to some friend or collaborator that the vehicle or its contents be removed. (See Pen.Code, § 851.5.)

Similarly, if appellant is challenging the right of the officers to look into his car and observe the many large, plainly observable items with the sales tags still on them, the contention is equally unmeritorious. 'Apparently the * * * [adjoining parking lot] was a common area; the officers did not commit a trespass by entering it. Nor did the officers conduct an unreasonable search by looking in the window of the car. [Citation.]' (People v. Terry, 61 Cal.2d 137, 152, 37 Cal.Rptr. 605, 615, 390 P.2d 381.)

As the court pointed out in Bielicki v. Superior Court, 57 Cal.2d 602, 605, 21 Cal.Rptr. 552, 554, 371 P.2d 288, the term 'search' as used in the pertinent provisions of the United States and California Constitutions imports a definite concept: 'A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. [Citation.]' The opinion in People v. West, 144 Cal.App.2d 214, 219-220, 300 P.2d 729, quoted by the Supreme Court in Bielicki, supra, further states: 'While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a 'search'.' (See also People v. Spicer, 163 Cal.App.2d 678, 683, 329 P.2d 917, 920, and cases cited therein.)

Further, even if it were to be conceded that it would be semantically more accurate to describe as a 'search' the process of 'looking into' a car which itself had been the object of a search, in the instant case the officers' 'searching look' at the accumulated booty openly displayed in appellant's car would not have constituted an 'unreasonable search.' (People v. Terry, supra, 61 Cal.2d at p. 152, 37 Cal.Rptr. 605, 390 P.2d 381.)

Finally, it may be that appellant's contention is meant to suggest that the further examination and removal of the merchandise found in his car was automatically unreasonable since his car was not under his 'immediate control' at the time of his arrest or that its 'search' was 'remote in time or place from the arrest.' (People v. Burke, 61 Cal.2d 575, 580, 39 Cal.Rptr. 531, 534, 394 P.2d 67; Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777.) It is apparent, however, that the factual situations present in Burke and Preston are so wholly dissimilar to the instant case that the rules therein enunciated have no possible application here.

In both Burke and Preston the identification and removal into police custody of the automobiles there in question were coincident with the arrest of their owners and occupants. The searches, i. e., the prying into hidden recesses of the cars, condemned in those cases, occurred after both the cars and the occupants had been removed from the scene of the arrest. Further, in both instances the...