People v. Martin, Cr. 5758

Citation293 P.2d 52,46 Cal.2d 106
Decision Date03 February 1956
Docket NumberCr. 5758
CourtUnited States State Supreme Court (California)
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. George H. MARTIN, Defendant and Appellant.

George H. Martin, in pro. per., and Clinton W. White, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Arlo E. Smith, Dep. Atty. Gen., for respondent.

TRAYNOR, Justice.

Defendant appeals from a judgment of conviction entered on a jury verdict finding him guilty of one count of possessing marijuana in violation of Health and Safety Code, § 11500. He also appeals from an order that he claims was entered denying his motion for a new trial. The record, however, does not disclose that a motion for a new trial was made or that an order denying it was entered. The latter appeal must therefore be dismissed.

Officers McCann and Price of the Oakland Police Department were on automobile patrol duty during the evening of July 21, 1954. At about eleven o'clock, while driving in a southerly direction on Poplar Street near 21st Street, they observed a car parked on the opposite side of the street headed in the opposite direction. As they passed the car, Officer McCann turned his spotlight on its and saw two men sitting in the front seat. He testified: '* * * it is a lover's lane. If it had been a female and a male I wouldn't have thought too much of it but two males in that vicinity I figured we had better check it out and as I brought the patrol car around to make a u-turn on Poplar Street the suspects' car took off. They spun their wheels taking off at a high rate of speed. They turned right onto 21st Street and proceeded up 21st Street and turned right again on Union Street which would put them heading in a southern direction again on Union Street and they turned east on 19th Street and all this time I had the red light and siren on and I brought the patrol car on up there on their left rear and very close and stopped them in front of 1181-19th Street.' Officer McCann approached the car from the left, and Officer Price from the right, and one of them flashed his flashlight into the car. Robert Dial, who later pleaded guilty to the charge of possession of marijuana, was in the driver's seat. Defendant was sitting on the right-hand side of the front seat. Dial's right hand and defendant's left hand were on the center of the seat. The officers ordered the suspects to put their hands in front of them, and when they did so Officer McCann saw a small bag in the middle of the front seat that had been covered by their hands. The officers ordered the suspects out of the car, and after searching them for weapons Officer McCann reached into the car and took the bag. He examined it and concluded that it contained marijuana. Later analysis confirmed this conclusion.

Defendant contends that the search of the automobile without a warrant was unlawful and that the evidence produced thereby was therefore inadmissible.

Although the presence of two men in a parked automobile on a lover's lane at night was itself reasonable cause for police investigation (see People v. Simon, 45 Cal.2d 645, 290 P.2d 531; Gisske v. Sanders, 9 Cal.App. 13, 16-17, 98 P. 43), their sudden flight from the officers and the inference that could reasonably be drawn therefrom that they were guilty of some crime, United States v. Heitner, 2 Cir., 149 F.2d 105, 107, left no doubt not only as to the reasonableness but as to the necessity for an investigation. Husty v. United States, 282 U.S. 694, 700-701, 51 S.Ct. 240, 75 L.Ed. 629; Talley v. United States, 5 Cir., 159 F.2d 703; Levine v. United States, 2 Cir., 138 F.2d 627, 628-629; Jones v. United States, 10 Cir., 131 F.2d 539, 541. Under these circumstances the officers were justified in taking precautionary measures to assure their own safety on overtaking the suspects, and it was therefore reasonable for them to order the suspects to put their hands in front of them and to get out of the automobile to be searched for weapons before being questioned. When Officer McCann saw the bag that was uncovered when the suspects removed their hands, he had reasonable cause to believe that their possession of it prompted the flight and that it contained contraband. He was therefore justified in taking it from the automobile. Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543; Husty v. United States, supra, 282 U.S. 694, 700-701, 51 S.Ct. 240; Scher v. United States, 305 U.S. 251, 255, 59 S.Ct. 174, 83 L.Ed. 151; Brinegar v. United States, 338 U.S. 160, 165-171, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. One 1946 Plymouth Sedan Automobile, 7 Cir., 167 F.2d 3, 7.

The judgment is affirmed, and the appeal from an alleged order denying a motion for new trial is dismissed.

GIBSON, C. J., and SHENK, SCHAUER, SPENCE and McCOMB, JJ., concur.

CARTER, Justice.

I dissent.

It appears to me that the following statement from the majority opinion is most astounding: 'Although the presence of two men in a parked automobile on a lover's lane at night was itself reasonable cause for police investigation * * *.' There are so many perfectly legitimate reasons why the car might have been parked with two men as passengers and so many logical explanations therefor, that to say the very sight of two men in a parked automobile at night warrants a police investigation reminds one of the Gestapo. Since when has there been a curfew for adults? Since when has it been illegal for two men to converse at night in a parked automobile? Since the deplorable practice of 'bugging' hotel rooms, private homes and offices and tapping telephone lines has become so prevalent, almost the only place two businessmen, who wish their conversation to remain private, can be safe is in an automobile on a sparsely traveled street or other secluded place. And, if their mere presence in a parked automobile is held to warrant police investigation, it appears that private conversations must also be held illegal and the right of privacy nonexistent.

It must be remembered that the Fourth Amendment to the Constitution of the United States was adopted for the protection of all of the people of this country, and that section 19 of article I of the Constitution of California was adopted for the protection of all of the people of this state. The object and purpose of the framers of these constitutional mandates was to guarantee and make secure the fundamental right of privacy to every person the right to be secure against police surveillance unless the police have reasonable cause to believe that an offense is being committed. This does not mean mere suspicion as some of our courts have recently indicated. The obvious reason for the rule that evidence obtained as the result of an illegal search, cannot be used against the victim of the search, is to protect innocent people by discouraging such searches. It is a matter of common knowledge that it has been the practice of law enforcement officers of this state to make searches of the persons and property of individuals whenever they saw regardless of whether reasonable or any cause existed, and many innocent people have been subjected to the indignity and humiliation of having their persons, homes, offices and automobiles searched by law enforcement officers with impunity when nothing of an incriminating nature was found and no arrests or prosecutions resulted therefrom. Many of these invasions of the constitutional right of privacy received no public mention because the victims did not wish to incure the expense and endure the inconvenience and publicity incidental to seeking redress in the courts. It is probable that for every case where evidence of a crime has been found there have been numerous illegal searches which uncovered no evidence whatsoever, and we know from the reported cases that the practice of illegal searches in this state has increased many fold in recent years. The American way of life does not lend itself to such way of life does not lend itself to such our body politic for the Gestapo, the storm trooper or the commissar. Ours is a system of ordered liberty which is made more secure by placing a magistrate between the citizens and the over-zealous law enforcement officer. While this system must protect the guilty as well as the innocent against an unlawful search and seizure, its effect on criminal prosecutions in this field is no different than any of the other safeguards embraced in the Bill of Rights which are designed to protect the life, liberty and property of our people against deprivation without due process of law. Each and everyone of these safeguards operates as an impediment against the conviction of the guilty as well as the innocent. Yet, this is necessary in any system of ordered liberty. If the above mentioned constitutional provisions have any meaning whatsover, then the victim of an illegal search may assert the right...

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