People v. Lewis

• Decision Date: 14 December 1960
• Docket Number: Cr. 7227
• Citation: 9 Cal.Rptr. 659,187 Cal.App.2d 373
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Whittier LEWIS, Defendant and Appellant.

Page 659

9 Cal.Rptr. 659

187 Cal.App.2d 373

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Whittier LEWIS, Defendant and Appellant.

Cr. 7227.

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

Dec. 14, 1960.

Charles R. Hand, Alhambra, for appellant.

Stanley Mosk, Atty. Gen., Jack E. Goertzen, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant was convicted of violating section 11530 of the Health and Safety Code, a felony (possession of marijuana). He has appealed from the judgment, the orders denying (1) his motion for a new trial, and (2) his application for probation.

On the evening of September 28, 1959, Officers Curatalo and Black, of the Los Angeles Police Department, were patrolling the El Serreno area northeast of the Los Angeles Civic Center. Officer Black was driving the police car with its lights off. Officer Curatalo knew that numerous burglaries had recently been committed in the immediate vicinity of Multnomah and Soto Streets. The officers' supervisor had directed them to be on the alert for that particular crime. The main purpose of the officers in patrolling that area was because of the previous burglaries.

At approximately 10:30 p. m., the officers were driving westbound on Multnomah Street when Officer Black observed an Oldsmobile make a U-turn and turn off its headlights. The officers saw the car enter a driveway into a gasoline station on the corner of Multnomah and Soto Streets. The gasoline station was closed and there were no lights on. Officer Curatalo observed the Oldsmobile, with its lights still off, pull to the center of the station alongside the business office. At that time the officers drove into the station and turned on their headlights. At that instant the Oldsmobile's headlights were turned on and it rapidly drove out of the station and away from that area. The officers pursued. They stopped the Oldsmobile shortly thereafter with the aid of their red lights and siren because they believed defendant to be a burglary suspect. The Oldsmobile, which was being driven by defendant, abruptly pulled over to the curb and, while the car of the officers was rolling to a stop, the door on the driver's side of the Oldmobile opened and defendant 'sprang out' of the car, nearly falling to the ground, and rapidly walked toward the officers. Officer Curatalo immediately got behind defendant and Black stood in front of him. Officer Curatalo proceeded to 'frisk' him for offensive weapons. Defendant had on a very thick, heavy jacket. As Officer Curatalo's right hand passed over defendant's right jacket pocket, defendant 'automatically grasped' his hand, preventing the officer from further examining an object which he felt in defendant's pocket. The officer thereupon 'yanked' his hand free from defendant's, put his hand into defendant's pocket, and pulled out a bag that felt very light. He asked defendant what was in the bag. Defendant mumbled a few words, and then stated that it was seed for his parrot. He later said, 'Well, I might as well tell you. It is weed [marijuana] that I got in Hawaii about three months ago.' Defendant further told the officer that there was about twice as much as that in the bag when he got it but he didn't know what happened to the other half.

The officer then placed defendant under arrest for possession of marijuana, which chemical analysis showed the contents of the bag removed from defendant's pocket to be. He had no warrant for defendant's arrest.

David A. Liddell testified on behalf of defendant: that he was a passenger in defendant's car on the night in question; that they were taking defendant's cousin home to San Fernando Valley; that they made a U-turn into a gas station and drove out the other driveway without stopping, and that the lights on defendant's car were not turned out. Liddell further testified that defendant's hands were on the hood of the car while he was being searched. This testimony was denied by Officer Curatalo.

Defendant did not testify.

In seeking a reversal defendant's basic contention is that the evidence against him was procured by an unlawful search and seizure and was therefore inadmissible. We have concluded that defendant's position is not well teken.

The essential point to be determined is whether Officer Curatalo acted reasonably under the circumstances in making the search of defendant that revealed his possession of contraband. If so, the search was lawful and the contraband admissible in evidence. We start with the fact that Officer Curatalo knew that numerous burglaries had been recently committed in the area that the officers were patrolling, and that the main purpose of their patrol was because of these crimes and the direction of their supervisor to be on the lookout for such depredation. In such circumstances any unusual actions on the part of persons on the street late at night would naturally create suspicion and might well call for investigation or interrogation. So, when the police officers observed the Oldsmobile make a U-turn, its headlights off, the car enter the driveway of a ...