People v. Harvey
| Decision Date | 02 July 1956 |
| Docket Number | Cr. 3143 |
| Citation | 299 P.2d 310,142 Cal.App.2d 728 |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Rufus HARVEY, Sr., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Loyd W. Carter, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., Francis W. Collins, Dist. Atty. of Contra Costa County, Rudd Sellar, Deputy Dist. Atty., Martinez, for respondents.
Defendant appeals from a judgment of conviction entered on a jury verdict finding him guilty of possessing marijuana in violation of Health and Safety Code, section 11500.
On the evening of October 28, 1954, Police Officers Aiello and Russo of the Pittsburg Police Department were instructed by their superiors, Inspectors Schillace and Flynn to go on a 'stake-out' in the vicinity of appellant Harvey's residence. They were told that appellant had been under surveillance by the department for some time and that he was believed to be dealing in narcotics. They were to observe appellant's residence and appellant if he should appear. If they believed that 'something was wrong' they were instructed to place appellant under arrest.
About 8:30 p. m. the police officers arrived at the stake-out. They concealed themselves across the street from appellant's residence behind a tree. A few minutes later appellant arrived on the scene in a 1950 Cadillac. Appellant got out of the Cadillac and apparently stood by it a little while. A blue coupe approached and parked just behind appellant's car. Appellant walked up to the occupant of the coupe, who remained in his car, and talked with him several minutes. The coupe then drove away. Appellant walked across the street toward his residence. He looked at something that was on the windshield of another can and then disappeared from the officers' view.
A few minutes later the officers saw appellant coming down an outside flight of stairs from his upstairs apartment. Appellant stood for a few seconds at the foot of his stairs looking up and down the street with his hands in his overcoat pockets. He crossed the street to where the officers were standing behind the tree. Appellant looked up and down the street. The officers then decided to take him into custody. Officer Russo testified: 'We thought something was wrong.'
The officers testified that they identified themselves as officers, showed their police badges and asked appellant to take his hands out of his pockets. Appellant did not comply but backed off from the officers. A struggle ensued. Three other officers arrived and appellant was subdued. All of the police officers were in civilian clothes. Officer Russo took a package from appellant's hand which was later found to contain marijuana.
At the trial the package containing marijuana taken from appellant at the time of his arrest was introduced into evidence. Marijuana was also found after his arrest in the Cadillac car driven by appellant and traces of marijuana were found on the clothing worn by him when he was arrested. This was also introduced into evidence.
We agree with appellant's contention that the marijuana was obtained by an illegal search and seizure.
The case was tried before the decision of People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, and hence the claim that the evidence was obtained by an illegal search is open to defendant although no objection was made to the introduction of the evidence. People v. Kitchens, 46 Cal.2d 260, 294 P.2d 17; People v. Maddox, 46 Cal.2d 301, 294 P.2d 6.
When the officers stepped from behind the tree and approached the defendant with the avowed purpose of placing him under arrest they had no legal ground for arresting him. His conduct up to that time was such as any man may legally engage in on a public street without arousing suspicion of misconduct. He had parked his car, talked to a person in another car, looked at something on the windshield of a third car, gone into his house, left his house...
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...of a witness and the truth or falsity of the facts upon which a determination depends.' The defendant relies on People v. Harvey, 142 Cal.App.2d 728, 299 P.2d 310, and People v. Gale, 46 Cal.2d 253, 294 P.2d 13. In the former, however, the defendant was arrested before he made any suspiciou......
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