People v. Koehn

• Decision Date: 19 May 1972
• Docket Number: Cr. 1111
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. David Allen KOEHN, Defendant and Appellant.

Page 102

102 Cal.Rptr. 102

25 Cal.App.3d 799

PEOPLE of the State of California, Plaintiff and Respondent, v. David Allen KOEHN, Defendant and Appellant.

Cr. 1111.

Court of Appeal, Fifth District, California.

May 19, 1972.

Wallace J. Smith, Sacramento, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Charles P. Just and James A. Reichle, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

GARGANO, Associate Justice.

Defendant appeals from his conviction of possession of heroin for sale (count I) and possession of marijuana for sale (count II) in violation of sections 11500.5 and 11530.5 of the Health and Safety Code, and carrying a pistol concealed in a vehicle (count III) in violation of Penal Code section 12025. His main contention is that the evidence upon which he was convicted on counts I and II was the product of an unlawful search and seizure.

On June 10, 1970, Patrick Buie of the Visalia Police Department received a telephone call from an adult male who refused to identify himself. The caller told the officer that a Rick Bateman and another man, a white male with long hair, were in possession of a large quantity of what he believed to be heroin; he said that the two men were in a 1966 green Ford station wagon and that they were selling the narcotic. However, a follow-up search by the police failed to locate the suspects. On the same day Visalia Police Officer Springmeyer received a second call form a male who refused to identify himself. The man stated that a 1966 green Ford, bearing license number RSP 525, was in front of the Mt. Whitney High School, that two long-haired white males were inside of the car and that they were selling drugs to high school students. The police again searched the area but this search, like the first one, was unsuccessful.

During the afternoon Detective Buie and Officer Springmeyer received information that there was a traffic warrant for Bateman's arrest. Sometime later, as the officers were cruising the Visalia area in a police car, they observed a green Ford station wagon traveling north on Mooney Boulevard; defendant was driving, and Rick Bateman was seated on the right seat. The officers radioed for assistance and then stopped the vehicle. Buie told defendant to step out of the car onto the sidewalk and asked for his identification. In the meantime, Springmeyer walked to the front of the station wagon and looked through the windshield; he saw the handle of a pistol lying on the floorboard. The officer removed the pistol which was loaded.

Defendant and Bateman were arrested for carrying a concealed weapon in the vehicle, handcuffed and placed in a police car. Thereupon, Officer Buie proceeded to search thoroughly the interior of the station wagon; he searched the front seat, under the front seat and the glove compartment; a fourth policeman, Officer Turner, arrived and he also searched the front area; then the officers searched the rear deck of the station wagon; they found no contraband nor anything of an illegal nature. With a bar, they pried open the car's locked tire well and found a fiberboard suitcase. The suitcase contained marijuana and a locked metal box. The officers pried open the box with a screwdriver and found some 30 grams of heroin.

The officers had sufficient cause to stop defendant's vehicle in order to question defendant and Rick Bateman; they had received information from an anonymous source that Bateman and another man had been selling drugs to high school students and were riding in a 1966 green Ford station wagon; in addition, the officers had received information that Bateman was wanted on a traffic warrant. (People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658: People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 41 Cal.Rptr. 290, 396 P.2d 706.)

The officers also had legal cause to arrest defendant on the weapon charge; the handle of the loaded gun was protruding from the front seat and was observed by Springmeyer as he looked through the windshield. (Harris v. United States, 390 U.S. 234 88 S.Ct. 992, 19 L.Ed.2d 1067; People v. Terry, 70 Cal.2d 410, 77 Cal.Rptr. 460, 454 P.2d 36.) But, neither the outstanding traffic warrant nor the information the officers received from the unknown informant gave them the right to search the vehicle. (People v. Superior Court (Kiefer), 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449.)

The crucial question is whether the search was justified as an incident to the weapon arrest or whether it transgressed constitutional limitations as articulated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. In the Chimel case the United States Supreme Court limited a warrantless search to the person arrested and the area within his immediate control, i.e., the area within which the suspect might gain possession of a weapon or destructable evidence.

The Attorney General does not assert that the search of the locked tire well was within the permissible bounds of a lawful search as delineated in the Chimel opinion. On the contrary, in his brief the Attorney General concedes that 'it might be argued that the search of the tailgate section and the fiberboard box contained therein exceeded the permissible scope of a search incident to an arrest established by Chimel v. California. . . .' He insists that vehicles are not included within the ambit of the Chimel case because in a footnote on page 764, 89 S.Ct. on page 2040, of the opinion the high court observed:

'Our holding today is of course entirely consistent with the recognized principle that, assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants 'where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.'' The law, as well as common sense, dictates that greater latitude should be given to warrantless searches of vehicles than is given to the search of the home or building. A vehicle is movable, 'the opportunity to search is fleeting,' and in most instances the car's contents would never be found again if an officer had to obtain a search warrant. (Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419; Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543.) Nevertheless, the extent to which an officer may search a vehicle without a warrant is not without constitutional restriction; it is governed by the exigencies of the situation, and each case must be judged on its own facts. (Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.) Consequently, the weakness of the Attorney General's argument is in the categorical assumption that the United States Supreme Court has excluded vehicles from the operation of the Chimel rule without exception.

On a close scrutiny, the footnote in the Chimel opinion, Supra, 395 U.S. 762, 764, 89 S.Ct. 2034, upon which the Attorney General relies, indicates that the court, after suggesting that it was excepting vehicles from the holding of the opinion, carefully limited that exception by stating "where it is not practical to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Furthermore, in its most recent pronouncement on this very subject, the California Supreme Court not only held that warrantless searches of automobiles are limited both as to time and place 'as required by Preston and Chimel,' but added that such searches, though incident to an arrest, must remain "reasonable in scope." The California high court in People v. Superior Court (Kiefer), Supra, 3 Cal. 807, 813, 91 Cal.Rptr. 729, 732, 478 P.2d 449, 452, had this to say:

'Turning to the second of the above categories, we confront initially a more difficult question: If a police officer is ordinarily entitled to conduct a search for contraband as an incident to a lawful arrest, why has this...