People v. McVey

• Decision Date: 27 June 1966
• Docket Number: Cr. 260
• Citation: 52 Cal.Rptr. 269,243 Cal.App.2d 215
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert A. McVEY, Defendant and Appellant.

Page 269

52 Cal.Rptr. 269

243 Cal.App.2d 215

The PEOPLE, Plaintiff and Respondent, v. Robert A. McVEY, Defendant and Appellant.

Cr. 260.

District Court of Appeal, Fifth District,

California.

June 27, 1966.

Jerry L. Guthrie, Sacramento, appointed by District Court of Appeal, for appellant.

[243 Cal.App.2d 216] Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse and David L. Kelly, Deputy Attys. Gen., Sacramento, for respondent.

OPINION

CONLEY, Presiding Justice.

The defendant and a companion were accused in the information of burglarizing the Hornet Drive-In located at 2336 Fair Oaks Boulevard in Sacramento. The burglars entered the restaurant by forcing one of the doors during the nighttime; they stole a miscellaneous lot of personal property, including a novelty vending machine, an FM/AM radio, a public address system and amplifier, four or five pounds of bacon, a box of frozen cube steaks, and a canned Dubuque ham. On the appeal, it is not claimed that the burglary did not occur as charged. The appeal is based wholly on a contention that the Sacramento deputy sheriffs did not catch the defendant legitimately, and that evidence was improperly admitted of the result of what is claimed to have been an illegal arrest followed by an incidental search.

It will not be necessary to devote any time to the details of the crime itself; it is not questioned that it was committed by the defendant, and he was convicted of burglary in the second degree. If there is to be a reversal, it must be on the ground that the arrest and the contemporaneous search of the van driven by defendant which contained stolen property of the Hornet Drive-In constituted fatal errors.

On the night of March 31, 1965, Edward E. Calvert, Deputy Sheriff of Sacramento County, like so many of his fellows throughout the length and breadth of the land, was carrying on the onerous but necessary duty of patrolling an area where there had recently been numerous burglaries. At approximately 11:45 o'clock at night, in a highly exclusive residential area, on the American River Drive near the Watt Avenue bridge, his attention was called to the suspicious circumstance of a dilapidated van with no lettering on the side rushing through the area at a speed of from 40 to 45 miles per hour, in a 25-mile-per-hour zone. After observing his required duty of advising the central police control on his radio, he put on his red lights, sounded his siren, and followed the careening van. While it did not immediately stop, it finally did. He got out of the police car and approached the driver's side of the van. He saw no one behind the wheel. There was a scurrying noise in the van, and finally both the driver and a passenger got out of the vehicle on its right side rather than on the driver's side. The two occupants walked down the right side of the van from the point where they descended to the rear of the vehicle where Deputy Calvert met them. At his request for identification, each of them exhibited a driver's license and defendant handed him a draft card. He told them to step back to the police vehicle, that he was making 'a routine check,' and he then went back to his own car, called headquarters and ascertained that there was no outstanding warrant for either of the parties. Officer Calvert asked the defendant what they were doing prior to being stopped, and McVey stated that his boss had permitted the use of the van and he was just showing his passenger Carpenter how it operated. At about this time, Detective Hosang joined Deputy Calvert; he turned his flashlight upon the glass panel of the rear door, and his exclamation caused Calvert to do likewise, at which time he saw a vending machine and a box on which rested a can of Dubuque ham. The officers asked McVey, who had admitted driving the van, what the occasion for carrying this property was and where they had gotten it. McVey said he did not know anything about it. This combination of suspicious circumstances, the driving at an illegal speed of an unlettered, dilapidated van through an exclusively residential district where it could not possibly have any business at a late hour of the night, the scurrying noise in the van when it finally stopped, the alighting of the driver and his companion on the right side of the vehicle, the strange statement that McVey was only showing Carpenter how the van should be run, the clear evidence that unusual property was located in the van, accompanied by the denial of McVey, the driver, that he had the slightest knowledge of how it got there, were so persuasive that something was wrong and that a crime had been committed that the officers were, in our opinion, justified in arresting the two participants on suspicion of burglary. A safety search of the two men then produced an open pocket knife in Carpenter's shirt pocket.

As an incident of this proper and lawful arrest, the officers then searched the van and in addition to the property already mentioned which was in full view and concerning which evidence would have been admissible (People v. Koelzer, 222 Cal.App.2d 20, 27--28, 34 Cal.Rptr. 718; People v. Terry, 61 Cal.2d 137, 152, 37 Cal.Rptr. 605, 390 P.2d 381; Mardis v. Superior Court, 218 Cal.App.2d 70, 74, 32 Cal.Rptr. 263; People v. Alvarez, 236 Cal.App.2d 106, 112, 45 Cal.Rptr. 721; People v. Davis, 222 Cal.,.app.2d 75, 78, 34 Cal.Rptr. 796; People v. McLaine, 204 Cal.App.2d 96, 101--102, 22 Cal.Rptr. 72; People v. Mosco, 214 Cal.App.2d 581, 583, 29 Cal.Rptr. 644), there were found four pairs of gloves, a bolt cutter, a pair of homemade brass knuckles, an FM/AM radio, a public address system, an amplifier, a box of cube steaks, which were still frozen, and four or five pounds of bacon. Shortly after the defendants were taken to police headquarters and booked for investigation of burglary, another member of the Sacramento County sheriff's office, Inspector Bristo, having received directions from headquarters to conduct a search to ascertain what small restaurant or drive-in in the vicinity had been burglarized located the situs of the crime at the Hornet Drive-In at 2336 Fair Oaks Boulevard. He there found a lug wrench with some white substance on it; the door which had been 'jimmied' was painted white; it was partly open and a light was shining in the restaurant; the cash drawer was open, and meat and other food stuffs were scattered over the floor. The proprietor of the drive-in, Malcom L. Huckleberry, Sr., and his son, Malcom H. Huckleberry, Jr., came to the burglarized drive-in at the request of the police, and, after verifying the details of missing goods, went to police headquarters where they identified the stolen property found in the van driven by the defendant.

Incidentally, it was developed at the trial from Antonio A. Rodriquez, the owner of the van, that the defendant McVey had been working for him as an installer of lawn sprinklers and that he had permitted him to use the vehicle solely in the course of his business but without giving him the right to drive it at night or for his own purposes.

The original stopping of the van was fully justified. The rule is thus stated in People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 20, 380 P.2d 658, 660:

'In this state, however, we have consistently held 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...