People v. Moore

• Citation: 13 Cal.App.3d 424,91 Cal.Rptr. 538
• Decision Date: 10 December 1970
• Docket Number: 15723,Cr. 15724
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Wayne Roderick MOORE and John Henry Blackburn, aka William Zeno Swain, Defendants and Appellants. The PEOPLE of the State of California, Plaintiff and Respondent, v. Alvin Daniel CREWS, Defendant and Appellant.
• Court: California Court of Appeals

Page 538

91 Cal.Rptr. 538

13 Cal.App.3d 424

The PEOPLE of the State of California, Plaintiff and Respondent, v. Wayne Roderick MOORE and John Henry Blackburn, aka William Zeno Swain, Defendants and Appellants.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alvin Daniel CREWS, Defendant and Appellant.

Cr. 15724, 15723.

Court of Appeal, Second District, Division 5, California.

Dec. 10, 1970.

Hearing Denied Feb. 3, 1971.

Roger S. Hanson, Woodland Hills, under appointment by the Court of Appeal, for defendants and appellants Wayne Roderick Moore and John Henry Blackburn.

Nicholas St. John, Long Beach, under appointment by the Court of Appeal, for defendant and appellant Alvin Daniel Crews.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and James L. Markman, Deputy Atty. Gen., for plaintiff and respondent.

AISO, Associate Justice.

These two separate appeals are consolidated in this court for the purpose of this decision.

The charges against all appellants result from a burglary-robbery in Santa Barbara on February 2, 1968. The victims were one William E. Johnson and his wife Pearl. The evidence supportive of the convictions for the several crimes need not be detailed at this point. It was sufficient to prove that defendants Moore, Blackburn and Crews forced entry into the Johnson home during their absence, and, upon their return, at gun point, robbed the victims of a 12 to 13 thousand item coin collection, three watches, a pocket knife, sundry jewelry and currency. Before leaving, they forced Johnson to give them the key to his car which they used for the getaway. The car was discovered early the next morning on a parking lot 1 1/2 to 2 miles from the Johnson home and only a block or so from an onramp to the freeway to Los Angeles. The Johnsons were left bound and gagged, Their dog had been doped.

Moore and Blackburn were arrested in Los Angeles on February 13, 1968, for burglary. The arresting officers were Sergeant William Lee and his superior, Lieutenant M. P. King, of the Los Angeles Police Department. They were assisted by a number of other fellow officers participating in a 'stakeout.' At the time of this arrest, Sergeant Lee was unaware of the crimes which had been committed in Santa Barbara a few days earlier; however, the arrest of Moore and Blackburn led to a great deal of physical evidence which linked them to the Santa Barbara offenses. It also provided physical evidence of their association with Crews. Crews, in turn, was arrested in LaCrescenta, California, on March 14, 1968. His arrest also led to the discovery of physical evidence probative of his participation in the Johnson robbery.

The Santa Barbara County Grand Jury indicted Moore and Blackburn on February 28, 1968. They pleaded not guilty and moved to suppress the evidence seized at the time of their arrest. (Pen.Code, § 1538.5.) The motion was heard and denied on April 1, 1968.

Crews was indicted on April 25, 1968. He, also, pleaded not guilty and moved to suppress the evidence seized contemporaneously with his arrest. At that motion Crews merely attacked the illegality of his own arrest, which was based on probable cause to believe that he had committed an entirely different robbery on March 12, 1968, in the Los Angeles area. The motion was denied on May 20, 1968. ¹

Eventually, both matters were consolidated for trial which commenced on June 25, 1968. A jury found all defendants guilty on several counts. On July 12, 1968, the court pronounced judgment against Moore and Blackburn on count I (Pen.Code, § 459--burglary), count II (Pen.Code, § 211--robbery, first degree) and count V (Veh.Code, § 10851--automobile theft). On July 22 judgment was pronounced against Crews on the same counts. In addition the court pronounced judgment against Crews on counts III and IV (Pen.Code, § 209, kidnaping for the purpose of robbery), counts of which Moore and Blackburn had been found not guilty. All were sentenced to state prison. ² They appeal from the respective judgments.

THE MOORE-BLACKBURN APPEAL

Moore and Blackburn, who are jointly represented on this appeal, contend: (1) their arrests and the accompanying search were illegal; (2) the delay in their arraignment before a magistrate constituted prejudicial error; and (3) the evidence was insufficient to prove their participation in the crimes for which they were convicted. The only contention which requires extended discussion is the first.

The only witness called by the People to sustain the warrantless arrest of Moore and Blackburn was Sergeant Lee, an eighteen-year veteran with the Los Angeles Police Department, who had been investigating Blackburn and Moore under the supervision of Lieutenant King. Prior to his arresting Moore and Blackburn, Lee was 'aware of' recent coin and jewel thefts in the Southern California area. Different 'groups' were suspected.

One gang under suspicion for jewelry thefts was known as the 'Treadway group.' It was Lee's 'information' that Blackburn was involved in an investigation of a jewelry theft of which that group was suspected. It was 'assumed' that he was a member of the group and an associate of Moore.

Another group was known to the police as the 'Miami group.' Among those 'belonging to' that group were Bobby Gene Staples (or Bobby Lee Staples), aka Jimmy Waters, Edward Vernon DeCoursey, DeCoursey's brother, Leo Spencer Parker, Allen Dale Keuhn, and Robert Lawrence Greenwood. Its best known member was Roland Murphy, known popularly as 'Murph the Surf' who, together with Allen Dale Keuhn, had previously been convicted and served sentence for stealing the DeLong ruby and a large star sapphire from the Metropolitan Museum in New York. ³ Sergeant Lee 'knew' that the members of the Miami group were in possession of stolen jewelry, that they had 'carried burglarists (sic) instruments with them and were armed.' On previous occasions when they had been arrested by members of Sergeant Lee's squad, they had vehicles 'which could be termed to be in their possession illegally.'

According to Lee's 'information,' Moore had an 'extensive burglary' or breaking and entering background. Lee had a 'good idea' that 'they' were from Carolina.

The prosecution connected Blackburn to the Miami group as well, to a degree, by evidence that Lee had observed Edward DeCoursey driving a 1968 Cadillac registered to one Patsy Turner at a certain address in Greensboro, North Carolina. ⁴ Lee had 'information' that Blackburn had purchased the car for Mr. Turner. ⁵ Lee had seen Blackburn drive the same car and had 'information' that he had a girlfriend whose name he would sometimes use. At the time of the arrest the Cadillac was in the parking area at 5119 Fountain Avenue, an apartment house where Moore and Blackburn lived.

Moore's vehicle, to the best of Lee's knowledge, was a 1963 Lincoln Continental. He had seen Moore in that vehicle together with Staples. On February 12 Lee had also seen Moore and Staples together in the garage area at 5119 Fountain. ⁶

Lee had information that Moore and Blackburn were in possession of stolen coins. Asked on cross-examination from whom he received the information, he replied that he had received it from Lieutenant King a couple of days prior to the arrest. Lee was not asked in what form this information was imparted to him, or as to whether he knew of King's source of this information. King was not called as a witness.

On February 13, Lee, King, and several other officers were conducting a 'stakeout' of the apartment at 5119 Fountain Avenue, when, at about 3:30 a.m., Moore drove up in an automobile and parked it in the driveway of the apartment building, although the parking area for cars was in the rear of the building. Moore alighted from the vehicle and looked around apprehensively for 'quite some period of time.' He opened the trunk of the car and with both hands removed a leatherette or plastic suitcase, about 1 1/2 feet long, 16 inches high, and 8 inches wide, and placed it on the driveway. From Moore's apparent exertion in lifting it (requiring use of both hands) and from the thud it made when he put it down, Lee concluded that it was very heavy. Based upon the information which he had concerning Moore and from the apparent heaviness of the suitcase, Lee felt that the suitcase contained loot from a burglary, or burglar's tools, 'some type of contraband.' He then formed the intention to arrest Moore.

Moore then carried the suitcase into an apartment, closing the door behind him. Lee and King followed Moore to the apartment and, when admitted, they arrested Moore and Blackburn for burglary. As noted, it was as a result of that arrest that the officers discovered evidence which connected all three defendants to the Santa Barbara robbery.

Counsel vigorously attacks the validity of the arrest. There are two main thrusts to his argument: First, he contends that the totality of the information of which Sergeant Lee thought himself possessed at the time of the arrest did not add up to probable cause to believe that Moore had committed a felony. Second, he claims that the prosecution did not comply with what has become known as the 'two-pronged test' of Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, as explained in Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and applied in several cases decided by our own Supreme Court. (E.g., People v. Hamilton (1969) 71 Cal.2d 176, 179--182, 77 Cal.Rptr. 785, 454 P.2d 681; People v. Scoma (1969) 71 Cal.2d 332, 336--340, 78 Cal.Rptr. 491, 455 P.2d 419; People v. Benjamin (1969) 71 Cal.2d 296, 301--303, 78 Cal.Rptr. 510, 455 P.2d 438; cf. Skelton v. Superior Court (1969) 1 Cal.3d 144, 150, 81 Cal.Rptr. 613, 460 P.2d 485.)

We turn first to a consideration of the questions raised by defendant's contention that the requirements of the Aguilar-Spinelli and the Harvey-Madden ⁷ lines of cases were not observed....