People v. McGlory

• Decision Date: 29 April 1964
• Docket Number: Cr. 8648
• Citation: 226 Cal.App.2d 762,38 Cal.Rptr. 373
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene Joseph McGLORY, Defendant and Appellant.

Page 373

38 Cal.Rptr. 373

226 Cal.App.2d 762

The PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene Joseph McGLORY, Defendant and Appellant.

Cr. 8648.

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

April 29, 1964.

Hearing Denied June 24, 1964.

Cy H. Lemaire,* Los Angeles, for appellant.

Stanley Mosk, Atty. Gen. William E. James, Asst. Atty. Gen., C. Anthony Collins, Deputy Atty. Gen., for respondent.

ROTH, Justice.

Appellant was convicted under Health and Safety Code, section 11530 for possession of a narcotic, to wit: marijuana, on or about June 24, 1962. Count one of the information charged possession of narcotics seized at the time of arrest. Count two involved narcotics seized after a subsequent search of appellant's apartment.

The record shows that appellant, a Miss Thomas and one Singleton were sitting in the front seat of a parked car during the early morning hours of June 24, in an area designated by the police as a high frequency narcotics area. Appellant raised his hand over his head as two plainclothes officers of the Los Angeles police department drove by. One of the officers testified this hand movement, the character of the neighborhood and the early morning hour, aroused his suspicion. They stopped to interrogate the occupants of the car.

Asked by one of the officers what they were doing, appellant answered he was taking Miss Thomas home. Miss Thomas confirmed this. During the brief interrogation the officer turned his open flashlight into the car and noticed a bulge between Miss Thomas' breasts. Officer Anderberg asked her what the bulge was and Miss Thomas replied 'What bulge, Officer?' Officer Anderberg forthwith ordered the occupants out of the car and both officers began a search for weapons. Miss Thomas was again asked about the bulge and this time asserted in a normal tone of voice that appellant had put it there and she didn't know what it was. Appellant was standing approximately five feet away at this time and said nothing. Singleton said nothing. Miss Thomas removed what turned out to be a bag of marijuana. The three were then placed under arrest.

Anderberg testified, that after ordering the three persons into a police car, which had stopped at the scene, while the events detailed above were taking place, he asked appellant if he could search his apartment and appellant said, 'Yes,' and removed the apartment key from his keyring and gave it to the officer, saying that the rooms were unoccupied at the time. The officers went to the apartment, three blocks from the scene of the arrest, and used the key to enter. The officers neither knocked nor announced themselves, and upon entry found appellant's daughter and two other persons in the frontroom. A search produced another bag of narcotics. Appellant asserts illegal search and seizure. Appellant argues that the federal rules of search and seizure as interpreted in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, have replaced the California rules, and that under the Mapp rule the search in this case was illegal, and that it was also illegal under the law of California.

Appellant's argument on search and seizure has been answered in the recent case of People v. Mickelson, 59 Cal.2d 448, at page 451, 30 Cal.Rptr. 18, at page 20, 380 P.2d 658, at page 660, the court says: 'A state rule governing police procedure is not unconstitutional merely because it permits conduct in which a federal officer may not lawfully engage. * * *

'The United States Supreme Court has not interpreted the Fourth Amendment as requiring * * * as a matter of constitutional law precise rules of police conduct. Indeed, its rule allowing a search by a federal officer without a warrant as incident to a lawful arrest permits reference to state law to determine the validity of the arrest. [Citations.] Accordingly, before a state rule governing police conduct may be struck down, it must appear that neither Congress nor a state legislature could authorize it. If a state adopts rules of police conduct consistent with the requirements of the Fourth Amendment and if its officers follow those rules, they do not act unreasonably within the meaning of the amendment although different rules may goven federal officers.'

Nor was the search and seizure, at the time of arrest, illegal under California law. It is well established that a police officer can stop a person, out of doors at night, for the purpose of interrogation, when to a reasonable person such a course of conduct appears necessary to the discharge of his duty. (People v....