People v. Hilliard

• Decision Date: 31 October 1963
• Docket Number: Cr. 4275
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond HILLIARD, Defendant and Appellant.

Page 809

34 Cal.Rptr. 809

221 Cal.App.2d 719

PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond HILLIARD, Defendant and Appellant.

Cr. 4275.

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

Oct. 31, 1963.

Benjamin M. Davis, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Deputy Atty. Gen., Barry L. Bunshoft, Deputy Atty. Gen., San Francisco, for respondent.

TAYLOR, Justice.

Appellant, Raymond Hilliard, was charged by information with possession of a deadly weapon by an ex-felon in violation of section 12021 of the Penal Code and three prior convictions. Appellant admitted the three prior felony convictions. On this appeal from the judgment rendered on the jury verdict finding him guilty as charged, he contends that the evidence on which the conviction is based was erroneously admitted as it was the result of an unlawful search and seizure and that his alleged confession was likewise erroneously admitted There is no merit in either of these contentions.

Viewing the record most favorable to the judgment, as we must, the facts are as follows: About 2:30 a. m. on May 19, 1962, Officers Tyree and Eden of the San Francisco Police Department, were in uniform walking west on the south side of Ellis Street in the block between Fillmore and Steiner Streets. As they stopped to talk to someone in front of the Day and Night Cafe at 1611 Ellis Street, they saw the appellant. The appellant was talking to two men in front of 1641 Ellis Street. The officers recognized the appellant from previous meetings and began walking toward him. These was nothing unusual about the appellant's conduct or appearance.

As soon as the officers approached him, the appellant began to walk away. He walked about 30 feet and looked back at the officers and then began to run. He ran west on Ellis Street, then south on Steiner Street, and ducked into a recessed area in front of a building out of sight of the pursuing officers for about 3-4 seconds. The officers saw the appellant again as he left the recessed area and ran south on Steiner Street. The officers were about 10-15 feet behind the appellant and ordered him to halt, as they wanted to talk to him. The appellant slowed down and the officers caught up with him about 10-15 feet from the recessed area.

The officers did not question the appellant at that time but returned to the recessed area. Almost immediately, the officers found a pistol under some paper and debris. Although the recessed area was dirty and littered with debris, the pistol was clean and free of rust and warm to the touch despite the coldness of the night. After the appellant denied any knowledge or ownership of the pistol, the officers placed him under arrest and telephoned for the police wagon. While waiting for the wagon to arrive, the officers turned their backs on the appellant. The appellant escaped for a few moments and hid underneath an automobile in a parking lot on Ellis Street. Subsequently, the appellant was removed to the police station and booked on suspicion of violating section 12021 of the Penal Code.

Two days later, about 10:30 a. m. on May 21, 1962, the appellant voluntarily gave a statement to Inspector Shelley in the city prison as follows: On the evening of May 18, appellant was in the Rattler's Club on Ellis Street and got involved in an argument with two men and a woman. Fearing an assault, the appellant stepped into a back room and obtained a pistol. He then returned carrying the pistol and walked out of the club. The would-be assailants followed him outside and continued to follow him as he walked west on Ellis Street and turned the corner of Steiner. Knowing that as a paroled felon he should not be carrying a weapon, he disposed of the pistol by concealing it under some papers in the recessed area on Steiner Street near the corner of Ellis.

At the trial, appellant gave conflicting testimony concerning the argument at the Rattler's Club. He also testified he thought he was running away from his would-be assailants but stopped as soon as he realized he was being chased by police officers. He denied ducking into the recessed area on Steiner Street as well as any knowledge or possession of the pistol. He also stated that the officers had searched the recessed area for about 25 minutes before finding the weapon. Appellant admitted giving a statement to Officer Shelley but denied saying anything about the pistol.

The first contention on appeal is that the pistol was obtained as the result of the illegal acts of the officers, and therefore should not have been admitted by the trial court. Appellant contends that he was arrested before the pistol was found and the arrest was therefore unlawful, as the officers had no reasonable cause to believe that he had committed a felony. There is no merit in this contention.

The courts of this state consistently have adhered to the proposition that a police officer may question a person outdoors at night when the circumstances are such as would indicate to a reasonable man in a like position that such a course is necessary in the discharge of his duties. The interrogation procedure does not constitute an arrest even though the person interrogated may be detained momentarily and the existence of facts constituting probable cause to justify an arrest is not a condition precedent to such an investigation (People v. Alcala, 204 Cal.App.2d 15, 19, 22 Cal.Rptr. 31). Thus, the propriety of the officers stopping the appellant for interrogation is completely separate from the issue of arrest and search (People v. Ellsworth, 190 Cal.App.2d 844, 12 Cal.Rptr. 433; People v. Gale, 46 Cal.2d 253, 294 P.2d 13). Our Supreme Court recently said in People v. Mickelson, 59...