People v. Leib

• Decision Date: 07 May 1976
• Docket Number: Cr. 18940
• Citation: 129 Cal.Rptr. 433,548 P.2d 1105,16 Cal.3d 869
• Court: California Supreme Court
• Parties: , 548 P.2d 1105 The PEOPLE, Plaintiff and Respondent, v. Raymond Wayne LEIB, Defendant and Appellant.

Page 433

129 Cal.Rptr. 433

16 Cal.3d 869, 548 P.2d 1105

The PEOPLE, Plaintiff and Respondent, v. Raymond Wayne LEIB, Defendant and Appellant.

Cr. 18940.

Supreme Court of California In Bank.

May 7, 1976.

Romines, Tooby, Eichner, Sorensen & Constantinides, Romines, Wolpman, Tooby, Eichner, Sorensen & Constantinides, and Ron Romines, Menlo Park, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci and Charles M. Buzzell, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant Raymond Wayne Leib appeals from a judgment convicting him of posession of LSD (Health & Saf.Code, § 11350) and marijuana (Health & Saf.Code § 11357). We pleaded guilty after an unsuccessful motion to suppress evidence under Penal Code section 1538.5. In this appeal he contends the evidence introduced against him was obtained by an illegal search and seizure. (Pen.Code, § 1538.5, subd. (m).) We conclude the point is well taken and the judgment must be reversed.

The facts are not in dispute. Three Sunnyvale police officers went to the home of one Richard Helton to execute a search warrant. After placing Helton and two juveniles under arrest, the officers searched the apartment and discovered an ounce of marijuana, some marijuana debris, and a pistol. They found no evidence of drug trafficking.

Defendant appeared on the scene 20 minutes after the officers arrived, knocked loudly and announced, 'I am here for my stuff.' Helton, seated near the door, shouted, 'Run. It is the cops.' Officers Crice and Reese, not knowing who was outside, drew their guns, threw open the door, and found defendant calmly standing with a beer can in his hand. Officer Crice seized defendant, pulled him into the apartment, placed him against the wall in a spread-eagle position, and undertook a pat-down search.

In defendant's right front pants pocket the officer felt a small round object, two inches long and a half inch in diameter; it seemed to him to be a plastic bottle. After completing the pat-down and determining defendant was unarmed, the officer, suspecting the object was contraband, questioned defendant about it. When defendant replied that the bottle contained pills, the officer quickly reached in and removed the bottle from defendant's pocket. The bottle, according to Officer Crice, contained one yellow and one green pill 'of a configuration unfamiliar to me.' He then placed defendant under arrest on a charge of possession of a controlled substance. Subsequent analysis demonstrated the two pills did not contain any controlled substance.

Despite defendant's repeated protestations that he had a valid prescription for the pills, the officers handcuffed him and took him to the Sunnyvale Department of Public Safety, where he was locked in a holding cell. He was, as the police euphemistically described it, 'momentarily lost' there for almost five hours, then finally booked. From the time of his arrest, about 10:30 p.m., through the time of his booking, 4:30 a.m., defendant repeatedly requested the officers to take him to his apartment so that he could produce the prescription for the pills. Finally the officers drove to the apartment with defendant, whose hands were now handcuffed in front of him rather than behind because the officers had evaluated him as 'an extremely broken individual.' While defendant searched his apartment for the prescription, ¹ one of the policemen observed an open cigar box containing what appeared to be marijuana. Confronted with the box, defendant 'completely lost his composure' and pointed out other items of contraband which formed the basis of the charge of which he was convicted.

'It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is 'per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.' (Citations.) It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.' (Schneck loth v. Bustamonte (1973) 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854.) As the officers had no search warrant to enter defendant's apartment, their discovery of the marijuana and other contraband may be justified only if defendant's request to be taken to his apartment constituted a valid consent to the officers' entry.

Defendant contends that the officer's entry was not validated by his request because it was the product of an illegal arrest. (Wong Sun v. United States (1962) 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441.) The question thus becomes whether the initial arrest of defendant was legal. The legality of that arrest, in turn, depends on whether Office Crice had a right to seize the pills from defendant's pocket. The People argue that the pills were legally seized either as an incident to a valid arrest or pursuant to a proper pat-down search for weapons.

We first ascertain whether this was a search incident to a valid arrest. An officer may conduct a full body search only if the person is committing or attempting to commit an offense in the officer's presence, or if the officer has reasonable cause to believe the person has committed a felony. (Pen.Code, § 836; People v. Simon (1955) 45 Cal.2d 645, 648, 290 P.2d 531.) Thus, we must determine whether Officer Crice had reasonable grounds to believe defendant had committed a felony or was presently committing a misdemeanor.

Arguing the former, the People rely heavily on People v. Tenney (1972) 25 Cal.App.3d 16, 101 Cal.Rptr. 419. In Tenney, as in the present case, police officers were executing a search warrant in a third party's house when defendant arrived on the scene. Opening the door and seeing the officers, the defendant attempted to flee. The officers captured, arrested, and then searched him, finding contraband. The Court of Appeal upheld the search as incident to a valid felony arrest. Pointing to the large amount of narcotics already found in the house when the defendant appeared, the defendant's entry into the house without knocking, and his flight, the court reasoned: 'the trial court was justified in concluding that these factors supplied the police with probable cause for believing that defendant had come to the premises for the purpose of committing a felony pertaining to the furnishing or possession of narcotics.' (Id. at p. 27, 101 Cal.Rptr. at p. 427.)

Similarly, in the present case the People argue that the narcotics found in Helton's house, defendant's announcement, 'I am here for my stuff,' and Helton's warning to defendant to run, all point to defendant's intent to commit some felony relating to narcotics. The People concede that 'The mere presence of a person on the premises where officers have reason to believe there are narcotics will not justify either his arrest nor a search of his person.' (People v. Boyd (1959) 173 Cal.App.2d 537, 539, 343 P.2d 283, 285.) Both the court in Tenney and the People here cite cases for the proposition that factors additional to mere presence may justify an arrest. In all the authorities cited, however, there was reason for the police to believe that the person arrested had recently committed an identifiable felony. (Pierson v. Superior Court (1970) 8 Cal.App.3d 510, 87 Cal.Rptr. 433 (possession of narcotics); People v. Valdez (1968) 260 Cal.App.2d 895, 67 Cal.Rptr. 583 (use of narcotics); People v. Ramirez (1960) 185 Cal.App.2d 301, 8 Cal.Rptr. 184 (sale of narcotics); People v. Boyd (1959) supra, 173 Cal.App.2d 537, 343 P.2d 283 (sale of narcotics); People v. Soto (1956) 144 Cal.App.2d 294, 301 P.2d 45 (possession of narcotics).)

By contrast, in the case at bar it is impossible to ascertain any specific statute that defendant had violated. The most that could be inferred from the facts known to the officers is that defendant had some vague undefined or potential criminal intent. Assuming arguendo that the defendant's announcement, 'I am here for my stuff,' suggested he was more than an innocent social visitor, the police could still not legally arrest him for commission of any identifiable crime. At best, his statement could be interpreted as revealing that he harbored a subjective intention to buy narcotics. As he had not yet bought any drugs, there were no reasonable grounds to believe he was guilty of either possessing or selling contraband. ² Defendant cannot be arrested merely for having a guilty intent unless such intent is accompanied by a guilty act. ³ Thus, the search and seizure of the pills from defendant cannot be upheld as incident to a valid felony arrest. People v. Tenney, insofar as it conflicts with this opinion, is disapproved.

Nor can the search be justified as incident to an arrest for a misdemeanor committed in the presence of an officer. The only crime that defendant could arguably have committed in view of the officers was visiting a place 'where any controlled substances . . . are being unlawfully smoked or used with knowledge that such activity is occurring.' (Health & Saf.Code, § 11365.) But defendant could not have been arrested on this ground for the simple reason that narcotics were not in fact being 'smoked or used' when he arrived at the door. As in People v. Perez (1963) 219 Cal.App.2d 760, 763, 33 Cal.Rptr. 398, 400, defendant 'could not have known 'such activity' to be 'occurring' . . . when it was not occurring.' Therefore we conclude that the search revealing the pills was not incident to any valid arrest and can be justified, if at all, only as part of a pat-down search for weapons.

Whatever authority Officer Crice may have had to conduct a routine pat-down search for weapons, however, was clearly exceeded by the seizure of the pill bottle. As pointed out in Terry v. Ohio (1967) 392 U.S. 1, 29, 88...