People v. McCullough

• Decision Date: 02 December 1963
• Docket Number: Cr. 4242
• Citation: 222 Cal.App.2d 712,35 Cal.Rptr. 591
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Victor Leroy McCULLOUGH, Defendant and Appellant.

Page 591

35 Cal.Rptr. 591

222 Cal.App.2d 712

The PEOPLE of the State of California, Plaintiff and Respondent, v. Victor Leroy McCULLOUGH, Defendant and Appellant.

Cr. 4242.

District Court of Appeal, First District, Division 3, California.

Dec. 2, 1963.

Philip W. Aaron, Redwood City, for appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Keith E. Pugh, Jr. Deputy Attys. Gen., San Francisco, for respondent.

SALSMAN, Justice.

Appellant was charged with a violation of Penal Code, section 12021 (ownership and possession of a concealable firearm by a felon) and convicted by a jury.

The record reveals these facts: On November 8, 1961, at about 3:45 a. m., officers Pipkin and Hale were on patrol on the coast highway between Half Moon Bay and Santa Cruz. They had observed no vehicles on the highway for several hours, until at the hour indicated, about eight miles south of Half Moon Bay, they saw appellant's car proceeding in a northerly direction. The attention of the officers was directed to the car because it was the first they had seen for several hours, and also because it was traveling at much slower than the normal speed at which vehicles usually travel along this open stretch of highway late at night. The officers observed appellant's car until it turned right at Purissima Canyon Road and headed east towards the mountains. Purissima Canyon Road leads into a remote rural area and eventually connects with Skyline Boulevard at the crest of the mountains. One or two residences are served by this road and it is improved for only a portion of its length. Officer Pipkin testified he did not believe a vehicle could reach Skyline Boulevard by Purissima Canyon Road unles it was a four-wheel drive vehicle. Purissima Canyon Road intersects the old coast highway a short distance from the new coast highway, and there are residences along the old coast highway. Appellant's car hesitated at the intersection mentioned, but continued east on Purissima Canyon Road, and the officers continued to follow. Officer Hale later testified the car appeared to be lost. After following appellant's vehicle a short distance along Purissima Canyon Road, the officers decided to stop it and question its occupants. As the officers drew close, they observed appellant and a passenger, later identified as John Masters, bend over as if placing something under the front seat. The officers then turned on their red light, stopped the vehicle, and walked over to it and began to question driver and passengers. While standing beside appellant's car the officers, with the aid of a flashlight, were able to see inside. They saw beer bottles and spilled liquid on the floor of the car and smelled the odor of alcohol. The officers asked appellant and Mr. Masters to get out of the car. Officer Hale looked into the vehicle and saw a switch-blade knife on the floor. He reached in and took possession of it. The officers then arrested appellant and Mr. Masters and searched them. Officer Pipkin asked Mrs. Masters to open the glove compartment of the car. The glove compartment contained a loaded .32 caliber revolver and several rounds of ammunition. Appellant admitted ownership of the car, the gun and the ammunition. When it was later determined that appellant had been previously convicted and had served a sentence for violation of Title 18, U.S.C., section 2312 (the Dyer Act, transporting a stolen car in interstate commerce) he was charged with the offense which gives rise to this appeal.

Appellant contends that stopping his vehicle violated his constitutional rights; that his arrest, and the search and seizure which followed were illegal, and that all evidence obtained as a result should have been excluded at trial.

We must first consider whether it was proper under facts here present for the officers to stop appellant's vehicle. We have concluded it was proper, and that no constitutional right of appellant was invaded by the action of the officers.

There is a difference between the right of an officer to stop a vehicle and make a reasonable inquiry of its occupants, and the right of an officer to stop a vehicle, place the occupants under arrest, and conduct a search. (See People v. King, 175 Cal.App.2d 386, 390, 346 P.2d 235.) In the latter instance, probable cause to arrest must be present, but in the former, reasonable conduct on the part of the officer is all that is required, and the question of the reasonableness of the officer's conduct must be decided upon the facts present in each case. A fixed formula by which to measure the reasonableness of the officer's conduct is difficult, if not impossible, to devise. Our own Supreme Court, however, has clearly held that it is not unreasonable for a police officer to question a citizen abroad late at night. (See People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531; People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57; see also, People v. Ellsworth, 190 Cal.App.2d 844, 847, 12 Cal.Rptr. 433; People v. Gibson, 220 A.C.A. 15, 33 Cal.Rptr. 775, 778.) Indeed, as the facts of this case illustrate, it may be necessary in the proper discharge of the officer's duty, to protect the very persons who are stopped for interrogation. Here, appellant's vehicle appeared to be lost, and was proceeding into an area of potential danger. Under such circumstances it seems clear that the officers, in the discharge of their duty to protect the public, including motorists who appear to be lost, acted reasonably in stopping appellant's vehicle, and it would appear unreasonable to hold that probable cause to arrest must exist before stopping the vehicle could be justified.

After the officers stopped appellant's vehicle, they approached it, made the observations set forth in the statement of facts, and placed appellant under arrest. They were fully justified in doing so. A police officer may make an arrest without a warrant when he has reasonable cause to believe the person to be arrested has committed a public offense in his presence. (Penal Code, § 836(1).) Reasonable cause to arrest exists when the officer, acting as a man of ordinary prudence, honestly believes the person to be arrested is guilty of a crime. (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577.) Seeing what is in plain sight is not a search. (People v. Mosco, 214 A.C.A. 616, 620, 29 Cal.Rptr. 644.) Here the officers observed open beer bottles on the floor of the car in front of the driver's seat, and some liquid spilled on the floor, and smelled the odor of alcohol. They could reasonably believe a misdemeanor was being committed in their presence. (Violation of Vehicle Code, § 23121, drinking in a motor vehicle; violation of Vehicle Code § 23122, possession in a motor vehicle of alcoholic beverages in an opened container.) The officers also saw a switchblade knife partially concealed under the front seat of the car, and from this and the furtive movements of appellant as the car was stopped, they could reasonably believe there was a violation of Penal Code, section 653k, (carrying a switch-blade knife) or Penal Code, section 12020, (carrying a...