People v. Molarius
| Decision Date | 19 November 1956 |
| Docket Number | Cr. 2679 |
| Citation | 146 Cal.App.2d 129,303 P.2d 350 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Francis M. MOLARIUS and Amaro Peter Pitta, Defendants and Appellants. |
Harold L. Abbott, Susanville, for appellant Molarius.
Hardin Barry, Susanville, and Raymond A. Ferrario, Oakland, Harpham & Holt, Albany, of counsel, for appellant Pitta.
Edmund G. Brown, Atty. Gen., by Doris H. Maier, Deputy Atty. Gen., for respondent.
Appellants were jointly tried and convicted by a jury of having unlawfully transported codeine in violation of Section 11500 of the Health and Safety Code and of having illegally used or been addicted to the use of narcotics in violation of Section 11721 of the same code. They appeal from the judgments entered upon the verdicts upon the ground that the evidence upon which they were convicted was obtained by an illegal search of the automobile in which they were riding and which was owned and being operated by appellant Molarius at the time of their arrest. Appellant Pitta also appeals from the order denying his motion for a new trial.
The search of which appellants complain was made after they were arrested for having made a 'U' turn in violation of Section 541 of the Vehicle Code. Although one of the arresting officers testified that the arrest was also made because appellants had burglarious tools in their possession, he admitted that appellants were not advised that this was a cause of their arrest but were informed that they were being taken to jail because of the traffic violation. Moreover, there is no evidence that the arresting officers believed, or had any reason to believe, that the tools, which were lying loose on the back floor of the car, were possessed by appellants 'with intent feloniously to break or enter into any building' in violation of Section 466 of the Penal Code, and there is nothing in the record to show that appellants were charged with illegal possession of burglarious tools.
The search, which, as stated above, was of an automobile in which appellants were traveling at the time of their arrest, was made without a warrant. Obviously, the search bore no relation to the traffic violation nor to the vagrancy charges upon which appellants were booked and, therefore, was not justified as incidental to the arrest therefor. People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57. Consequently, the determinative question on this appeal is whether there was any reasonable cause for the search. People v. Brown, 45 Cal.2d 640, 643-645, 290 P.2d 528; People v. Blodgett, supra. We have concluded that there was not.
The record shows that at about 5:30 o'clock on the morning of October 16, 1955 the appellants engaged a room at the De Forest Motel in Susanville, the appellant Pitta registering therefor under an assumed name and falsely identifying Molarius as his brother. For a number of hours thereafter Mr. De Forest heard tapping sounds in the room occupied by appellants. At about 2 o'clock the following morning the appellants left the motel and were absent therefrom for approximately two hours. Mr. De Forest reported this to the police because, as he said, there had been recently a number of burglaries in Susanville. The chief of police ascertained that the automobile in which appellants were traveling was registered in the name of Rudy Alvarado who had failed to appear in the Municipal Court in Oakland upon two traffic citations. After receipt of this information a police officer, posing as an electrician, went to the De Forest Motel and observed the appellants who voluntarily admitted him and Mr. De Forest to their room. However, it does not appear that he gained any information...
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