People v. Macias

• Citation: 180 Cal.App.2d 193,4 Cal.Rptr. 256
• Decision Date: 21 April 1960
• Docket Number: Cr. 7032
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Emilio MACIAS, Defendant and Appellant.

Page 256

4 Cal.Rptr. 256

180 Cal.App.2d 193

PEOPLE of the State of California, Plaintiff and Respondent, v. Emilio MACIAS, Defendant and Appellant.

Cr. 7032.

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

April 21, 1960.

As Modified on Denial of Rehearing May 18, 1960.

Hearing Denied June 14, 1960.

John J. Bradley and Max Solomon, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Unlawful possession of marijuana (Health & Safety Code § 11500). Defendant convicted. Appeal from judgment and order denying motion for new trial. Appellant contends, and we believe correctly, that the evidence indispensable to a conviction was obtained by an unlawful search and seizure.

There is little conflict in the evidence concerning the controlling facts. On the evening of April 24, 1959, about 10:00 p. m., Police Officers Key and Craig received a radio call to go to the 1200 block on Los Palos Street to interview the victim of 'a 211 robbery' i. e., one committed 'by means of force or fear.' There they found one Valencia, who told them he had been robbed by a male Mexican who was between the ages of 20 and 30, somewhere between 5'10"' and 6' or 6'1"' in height, wearing a dark suit; that he, Valencia, lived in the rear house; it was dark; that was all the description he could give and he was not sure whether he could identify the robber; that he knew the robber was a Mexican by his accent. That is the full extent of the description which the officers had.

They cruised through the vicinity until they came to a bar at 3790 Olympic Boulevard, two and one-falf blocks from the scene of the crime. They had no information that the robber had gone into a bar. When they entered they saw a number of people, some of whom were Mexicans; one of them, defendant, was seated at the bar having a drink. The officers concluded he was the only one who fit the description. They did not get this from his accent for without any previous conversation Officer Key, who was in uniform, stepped up behind defendant and did not interrogate him or otherwise converse except to ask him to step outside, that they, the officers, would like to talk to him. It does not affirmatively appear that defendant is a Mexican but it may be assumed in favor of the judgment that he looked like one; he was wearing a dark blue suit and was about the age and height which had been given by Valencia to the officers.

Defendant acquiesced in the request to go outside and as soon as he and the officers arrived there they began to frisk him for a weapon. Again there was no interrogation. Defendant objected and said they could not search him when he had not done anything. The officers said they did have a right to search for weapons, they were looking for a robbery suspect and that if he did not allow it he would be arrested and taken to the station and searched anyway. 'All right, let's go to the station.' Defendant offered to go in handcuffs to the robbery victim so the latter could identify him as not being the robber. But he was immediately arrested upon suspicion of robbery, was handcuffed with his hands behind his back, the checking for weapons was completed without results, and he was placed in a police car which proceeded to Hollenbeck Police Station. According to Officer Key his fellow officer asked defendant on the way what he had in his pockets that he did not want them to find and he replied that he had four marijuana cigarettes he had purchased from some character in the bar. Defendant's own testimony, uncontradicted, is a bit more illuminating: 'Well, one of the officers kept asking me, 'Why are you so concerned about our searching you?' 'What are you afraid of,' at which time he sort of put his hands into my pocket, my coat pocket, and said, 'marijuana', and I said, 'Yes.' Q. In other words, he reached in your pocket and got ahold of--A. Yes, he did. He said, 'marijuana', and I said, 'Yes, I have four cigarettes." The cigarettes were in a Chesterfield package; the officer took the package in his hand, looked inside it and placed it back in defendant's pocket. True to promise defendant was searched upon arrival at the station and the four marijuana cigarettes were taken from him. He was not booked for robbery but for possession of the narcotic.

The officers did not have sufficient description of the robber to warrant their searching appellant. As above pointed out they did not interrogate him. The description of a Mexican between the ages of 20 and 30, somewhere from 5' 10"' to 6'1"' in height, and wearing a dark suit, furnished nothing distinctive nor would those elements do so when combined. Especially in that area in Los Angeles hundreds of Mexicans would doubtless fit that description. That bar, so far as appears, was not known as a hangout for criminals and the officers had no information whatever about defendant. They had only the above mentioned description of a robber. Defendant when seen by them was not on the street in the middle of the night nor engaged in any suspicious activity; he was sitting at the bar attending strictly to his own affair, a drink of liquor. As soon as he heard of his being a robbery suspect he denied any participation in the event and offered to go to the victim to prove that he was not the robber.

This was the kind of promiscuous search that condemns road blocks and searching all cars, a practice condemned in People v. Gale, 46 Cal.2d 253, 256, 294 P.2d 13. The situation at bar is similar to the one involved in People v. Dewson, 150 Cal.App.2d 119, 129, 310 P.2d 162, 168, wherein the court remarked by way of dictum: 'If the officers in the instant case had sufficient probable cause solely on the basis of the data provided by the information, they would also have sufficient cause to arrest any Negro anywhere in San Francisco driving a car similar to the one described.'

Cases cited by respondent to support the sufficiency of the description upon which the police acted are not controlling for they differ factually in the important respect that each furnished some one fact or combination of facts which pointed toward easy recognition of the described person or some conduct on his part suggestive of consciousness of guilt. Those cases are, People v. Holguin, 145 Cal.App.2d 520, 302 P.2d 635; People v. Borbon, 146 Cal.App.2d 315, 303 P.2d 560; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; People v. Romero, 156 Cal.App.2d 48, 318 P.2d 835; People v. Johnson, 157 Cal.App.2d 555, 321 P.2d 35. A similar case is Willson v. Superior Court, 46 Cal.2d 291, 295, 294 P.2d 36.

The accusatory pleading alleged prior conviction of a felony and defendant denied the same. The court made no finding upon it and sentenced defendant to nine months in the county jail. There is nothing in the record to suggest that the arresting officers had any such information concerning defendant and hence they were not entitled to deal with him upon the assumption that he was a felon.

Cases upholding the right of officers to interview persons on the street in the middle of the night or seen under suspicious circumstances are not here applicable. People v. Harvey, 142 Cal.App.2d 728, 731, 299 P.2d 310, 312, is pertinent: 'The People however argue that since the officers had the right to interrogate a man found upon the street at night, People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57, the conduct of the defendant in backing away and refusing to take his hands from his pockets constituted suspicious conduct which justified the officers in seizing and searching the defendant. People v. Blodgett, supra; People v. Martin, 46 Cal.2d 106, 293 P.2d 52. The difficulty with this argument is that the police officers were not interrogating the defendant, but by their own unqualified testimony they were arresting him.'

In Gascon v. Superior Court, 169 Cal.App.2d 356, 358, 337 P.2d 201, 202, the court said: 'That the officers did not have probable cause to arrest petitioner is not disputed by the People nor could it be for he was lawfully upon the public streets at night and had not committed any acts which would tend to arouse suspicion prior to his flight.' See also, People v. Harris, 146 Cal.App.2d 142,...