People v. Machel

Citation44 Cal.Rptr. 126,234 Cal.App.2d 37
Decision Date29 April 1965
Docket NumberCr. 4539
CourtCalifornia Court of Appeals
PartiesPEOPLE of the State of Callfornia, Plaintiff and Respondent, v. Peter MACHEL, Defendant and Appellant.

James C. Purcell, San Francisco, for appellant.

Stanley Mosk, Atty. Gen. of State of California, Edward P. O'Brien, John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

SULLIVAN, Presiding Justice.

The court sitting without a jury found defendant guilty of possession of marijuana. (Health & Saf. Code § 11530.) 1 He appeals from the judgment of conviction.

On March 7, 1963 at about 8:30 p. m., San Francisco Police Inspector Robert Martin, a member of the narcotics detail, accompanied by Inspector Lawler of that detail and Federal Agent Niblo went to apartment 101 at 1190 Pine Street, San Francisco, on a narcotics investigation. There Martin arrested Lewis Molin and Nadine Sweem, the occupants of the apartment, for possession of a marijuana cigarette. Nadine Sweem told Inspector Martin that they had obtained the cigarette from 'a person by the name of Pete' who had left it there the night before. She said that Pete was expected to return that night at about 9 p. m. although she did not indicate the purpose of his visit.

After further discussing this person with Nadine Sweem, Martin reached the conclusion that he was defendant Peter Machel concerning whom he had certain information. Martin knew Machel to be an associate of a woman named Max Phelps whom Martin and Lawler had arrested for possession of marijuana in January 1963. On that occasion Martin with the permission of Max Phelps had monitored an incoming telephone call from a person identified by her as defendant. While the caller made no mention of narcotics, the gist of the conversation and the 'jargon' employed made Martin suspicious that he might be involved in the narcotics traffic. Max Phelps had said only that defendant was a friend of hers and mentioned nothing about defendant's activity in narcotics. Prior to this occasion, the inspector had had no contact with Max Phelps. However he later checked the police records and found that defendant had been arrested in the past and that he had a narcotics record. He also saw defendant's photograph in his 'rap sheet.' Martin stated that the foregoing was the only information he had concerning defendant when on March 7, 1963 he went to the apartment house on Pine Street.

After arresting the occupants, the three officers remained in the apartment. At 9:20 p. m. the door bell rang and someone pressed the return buzzer. Martin and Niblo stationed themselves just inside the front door of the apartment. There was a knock on the door and upon opening it Martin observed defendant and one Joe Russo standing at the door. The inspector had arrested Russo some months before and knew that he was then under indictment for possession and transportation of marijuana. He recognized defendant from his 'mug shots.'

The inspector greeted Russo and identified himself to defendant, who became very pale and started backing up toward the general direction of the main door of the apartment house. After defendant had taken several backward steps, Martin 'then walked up to him and placed my arm on him and stopped his backward progress.' Martin and Niblo then 'escorted Russo and Machel back into the apartment.' Up to this point defendant had said nothing.

Defendant was taken into the bedroom where Martin 'patted him down' for weapons. As the inspector ran his hands over defendant's left front trouser pocket, he 'felt an article or articles in his pocket which, from my past experience, made me suspicious that they were perhaps marijuana cigarettes. * * * Usually, if several cigarettes are carried, they are as a rule bound by a rubberband or some type of article like that to keep them from bouncing around in the pocket and perhaps become damaged, also to facilitate a quick disposal of them.' Martin thereupon asked defendant what he had in the pocket whereupon defendant 'began to sweat very profusely and he remained very pale.' He repeated the question three or four times but defendant refused to talk. Martin then put his hand in the pocket and removed the object he had felt, which appeared to be three marijuana cigarettes bound with a rubberband. Martin did not feel any weapons on defendant when he conducted the pat search. He could not recall at the trial whether or not defendant was handcuffed at this time. The inspector then interrogated defendant as to where he obtained the cigarettes, a matter which we discuss in detail infra. At the trial the cigarettes were introduced in evidence over defendant's objections that they were the product of an unlawful search and seizure.

Inspector Martin testified under cross-examination that his original purpose in going to the Pine Street apartment on a narcotics investigation did not contemplate an investigation of defendant. He also stated that if defendant had wanted to leave the apartment house premises when Martin first saw him standing at the door, he would not have permitted defendant to do so.

Defendant called Federal Narcotics Agent Niblo as his own witness. Niblo testified that when the apartment door was first opened defendant was apparently 'a little shocked by our presence there' and took one step backward whereupon 'I think, I put my arm * * * on his right arm because I was under the impression he was about to flee. * * *' According to Niblo, defendant was not handcuffed outside the door but only after Martin had removed the cigarettes from his pocket inside the apartment.

Lewis Molin, one of the occupants of the apartment, also called as a witness for defendant, testified that when defendant first appeared at the apartment, Martin and Niblo showed him their badges and Niblo, going behind defendant, held the latter's arms in an arm-lock while Martin handcuffed him and brought him into the apartment.

Defendant, testifying in his own behalf, stated that he had gone to the apartment to return Molin's car which he had borrowed. His description of the arrest coincided with that of Molin. Defendant admitted knowing Max Phelps, mentioned by Inspector Martin in connection with the January episode, admitted telephoning her at about that time and further admitted on cross-examination that at the time of the arrest he had the three marijuana cigarettes on his person.

Defendant contends on appeal (1) that the search of his person not being incidental to a lawful arrest upon probable cause was illegal and that the evidence illegally seized in the course thereof should have been excluded by the trial court; and (2) that the admission in evidence of incriminating statements made by him was reversible error under the rule announced in Peoplc v. Dorado (1965) 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361. It is the position of the Attorney General that the circumstances initially confronting the officers, though possibly short of probable cause for defendant's arrest, nevertheless warranted his temporary detention for questioning which thereupon revealed probable cause for an arrest and search. The Attorney General asserts that the rule of temporary detention for questioning as reaffirmed in People v. Mickelson (1963) 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658, is here applicable. Defendant disputes this on the grounds that the detention in the instant case did not occur outdoors.

In California the rule is settled 'that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning. If the circumstances warrant it, he may in self protection request a suspect to alight from an automobile or to submit to a superficial search for concealed weapons. Should the investigation then reveal probable cause to make an arrest, the officer may arrest the suspect and conduct a reasonable incidental search. [Citations.]' (People v. Mickelson, supra, 59 Cal.2d 448, 450-451, 30 Cal.Rptr. 18, 20, 380 P.2d 658, 660; People v. Lopez (1963) 60 Cal.2d 223, 241, 32 Cal.Rptr. 424, 384 P.2d 16; People v. One 1960 Cadillac Coupe (1964) 62 A.C. 89, 93, 41 Cal.Rptr. 290, 396 P.2d 706.) The above California rule permitting temporary detention for questioning 'strikes a balance between a person's interest in immunity from police interference and the community's interest in law enforcement. It wards off pressure to equate reasonable cause to investigate with reasonable cause to arrest, thus protecting the innocent from the risk of arrest when no more than reasonable investigation is justified.' (People v. Mickelson, supra, 59 Cal.2d at p. 452, 30 Cal.Rptr. at 20, 398 P.2d at 660.) While it is operative under circumstances short of probable cause to make an arrest (People v. Mickelson, supra) 'nevertheless there must exist some suspicious or unusual circumstance to authorize even this limited invasion of a citizen's privacy.' (Hood v. Superior Court (1963) 220 Cal.App.2d 242, 245, 33 Cal.Rptr. 782, 784; People v. Cowman (1963) 223 Cal.App.2d 109, 116, 35 Cal.Rptr. 528.)

However the above rule by its terms and in its application has been confined to persons outdoors as appears from the facts of Mickelson and the supporting authorities therein referred to 2 as well as from a number of decisions both preceding 3 and following 4 Mickelson. In most instances the detention has occurred outdoors at night. Obviously temporary detention by the police indoors for investigation purposes is cast in a different setting and may require assessment of additional factual ingredients. The subject of the investigation may be a licensee or invitee lawfully on the premises or may be a person in his own dwelling place. (See People v. Cove (1964) 228 A.C.A. 535, 39 Cal.Rptr. 535. As the court observed in Cove: 'Constitutional alertness to possible police...

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