People v. Mickelson, Cr. 7295

• Court: United States State Supreme Court (California)
• Writing for the Court: TRAYNOR; GIBSON; PETERS; McCOMB
• Citation: 59 Cal.2d 448,30 Cal.Rptr. 18,380 P.2d 658
• Parties: , 380 P.2d 658 The PEOPLE, Plaintiff and Appellant, v. Curtis Ray MICKELSON, Defendant and Respondent.
• Docket Number: Cr. 7295
• Decision Date: 18 April 1963

Page 18

30 Cal.Rptr. 18 59 Cal.2d 448, 380 P.2d 658 The PEOPLE, Plaintiff and Appellant,
v.
Curtis Ray MICKELSON, Defendant and Respondent. Cr. 7295. Supreme Court of California, In Bank. April 18, 1963.
Rehearing Denied May 14, 1963.

Page 19

[380 P.2d 659] [59 Cal.2d 449] Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Harry Wood, and Harry Sondheim, Deputy Dist. Attys., for plaintiff and appellant.

Gladys Towles Root and Eugene V. McPherson, Los Angeles, for defendant and respondent.

TRAYNOR, Justice.

Defendant was charged in two counts of an information with committing burglaries of telephone booths, in violation of Penal Code, section 459. His motion to set aside the information was granted (Pen.Code, § 995), and the People appeal. The Attorney General concedes that there was no evidence at the preliminary hearing to support count I and seeks a reversal only as to count II.

A Burbank police officer discovered the physical evidence supporting count II in the course of searching an overnight bag found funder the front seat of an automobile in which defendant had been riding and which Don Zauzig had been driving. The bag contained $85.90 in nickels, dimes, and quarters. At defendant's preliminary hearing, the bag and its contents were introduced in evidence, and Zauzig testified to his and defendant's commission of the burglary. Zauzig's arrest and his availability as a witness were direct results of the search that disclosed the physical evidence of the burglary. If that search was illegal, neither the physical evidence nor Zauzig's testimony is competent to support the information. [59 Cal.2d 450] (Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319; Weiss v. United States, 308 U.S. 321, 330-331, 60 S.Ct. 269, 84 L.Ed. 298; Nardone v. United States, 308 U.S. 338; 341, 60 S.Ct 266, 84 L.Ed. 307; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 417, 9 L.Ed.2d 441; People v. Berger, 44 Cal.2d 459, 462, 282 P.2d 509; People v. Dixon, 46 Cal.2d 456, 458, 296 P.2d 557; People v. Schaumloffel, 53 Cal.2d 96, 101-102, 346 P.2d 393; People v. Ditson, 57 Cal.2d 415, 439, 20 Cal.Rptr. 165, 369 P.2d 714.)

The Attorney General contends, however, that the arresting officer had reasonable cause to arrest Zauzig for a recent robbery in the neighborhood and that the search of the car was therefore justified as incidental to the arrest. Before the decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, we were free to determine such an issue under the California decisions setting forth the rules governing police investigations and arrest. In view of the holding in that case that the Fourteenth Amendment requires state courts to exclude unconstitutionally obtained evidence, we must determine at the outset whether the federal rules governing police investigations and arrests have superseded our own. There are significant differences between the respective rules that are relevant to this case.

In Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134, the United States Supreme Court held that an arrest occurs when an automobile is stopped during the course of a criminal investigation, and if the officer does not have reasonable cause to arrest the occupant at that time, the arrest is unlawful. Anything the officer learns as a result of stopping the automobile is inadmissible in evidence and cannot justify a search. (See also Brinegar v. United States, 338 U.S. 160, 166, 69 S.Ct. 1302, 93 L.Ed. 1879; Rios v. United States,

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[380 P.2d 660] 364 U.S. 253, 261-262, 80 S.Ct. 1431, 4 L.Ed.2d 1688.) 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 warrant it, he may in self protection request a suspect to alight from an automobile or to submit to a superficial search for concealed weapons. Should the investigation then reveal probable cause to make an arrest, the [59 Cal.2d 451] officer may arrest the suspect and conduct a reasonable incidental search. (People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531; People v. Martin, 46 Cal.2d 106, 293 P.2d 52; People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57; People v. Beverly, 200 Cal.App.2d 119, 125, 19 Cal.Rptr. 67; People v. King, 175 Cal.App.2d 386, 390, 346 P.2d 235; People v. Anushevitz, 183 Cal.App.2d 752, 755, 6 Cal.Rptr. 785.)

The Mapp case did not determine whether or not the states must follow all the federal rules. Neither did Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, which on this matter held only that the conduct of state officers would be measured against the federal rules when state-secured evidence was offered in federal prosecutions.

A state rule governing police procedure is not unconstitutional merely because it permits conduct in which a federal officer may not lawfully engage. The Fourth Amendment ¹ itself sets forth no more than the basic outlines of lawful law enforcement. It becomes meaningful in specific situations only by reference to the common law and statutory law governing the issuance of warrants, the authority of officers, and the power to arrest. Illegally obtained evidence may be excluded by the federal courts for various reasons. It may be excluded because it was obtained in a way that could not constitutionally be authorized. It may be excluded because it was obtained in...