People v. Mosco

• Decision Date: 28 March 1963
• Docket Number: Cr. 8469
• Parties: The PEOPLE, Plaintiff and Respondent, v. Boyce MOSCO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 644

29 Cal.Rptr. 644

214 Cal.App.2d 581

The PEOPLE, Plaintiff and Respondent, v. Boyce MOSCO, Defendant and Appellant.

Cr. 8469.

District Court of Appeal, Second District, Division 4, California.

March 28, 1963.

Russell E. Parsons, Los Angeles, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., N. Gregory Taylor, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Justice.

By information defendant was charged with possession of marijuana in violation of Health and Safety Code, section 11530. Defendant entered a plea of not guilty. Defendant personally and all counsel waived trial by jury and defendant was found guilty as charged. A motion for new trial was made and denied. Proceedings were suspended and defendant was granted probation for five years.

The sole contention of defendant on appeal is that the evidence used against him was obtained by an illegal search and seizure.

Donald Foreman, a Los Angeles County deputy sheriff testified that on December 8, 1961, at approximately 11:55 p. m. he and his partner deputy William Burns, Jr. were on patrol in a marked radio car; they observed an automobile illegally parked. (Deputy Foreman explained that the term 'illegally parked' in this case means that the car was parked more than 18 inches from the curb.) He pulled up alongside the automobile and asked defendant, who was sitting alone behind the wheel, what he was doing. Defendant replied, 'Nothing.' Deputy Forman then parked the patrol car and both deputies alighted and approached the parked automobile. Deputy Burns went to the driver's side and asked defendant for his operator's license. At this time, defendant leaned forward and reached under the front seat. Deputy Foreman, who had taken up a position at the right rear door, played the beam of his flashlight beneath the rear of the front seat in an attempt to see what the defendant was reaching for. Protruding from under the floor mat on the right rear floorboard, he observed what appeared to him to be a brown paper wrapped cigarette. It had the appearance of a marijuana cigarette. He then opened the rear door, examined the cigarette and observed what appeared on the end of the cigarette to be a seed. Deputy Burns also examined it and showed it to the defendant, asking him what it was and defendant stated that it looked like a marijuana cigarette.

Defendant was then placed under arrest and searched. Deputy Burns located tobacco debris which had the appearance of marijuana debris, in the pocket of a coat defendant was wearing. Deputy Foreman asked defendant if the vehicle belonged to him and defendant replied that it did. He was also asked if he had loaned it to anyone and defendant stated he had but would rather not say to whom. At the time of defendant's arrest, the deputies did not have a warrant for his arrest, or a warrant authorizing them to search his person or automobile.

It was stipulated at the time of trial that Martin Klein was an expert chemist and that his testimony given at the preliminary hearing could be read into the record. He testified he examined the cigarette taken from defendant's car and the crushed debris removed from his coat and found they contained marijuana.

Defendant testified in his own behalf, denying any knowledge of the marijuana cigarette and stating that he had loaned his automobile to a Marvin White just prior to his arrest. He admitted he was wearing the coat, found to contain the marijuana debris, on the night he was arrested, but stated it was only the second time he had worn it, having acquired it five or six months before in a trade with a friend by the name of Melvin Allen. Additional testimony on defendant's behalf was given by Melvin Allen, Barbara Brown and defendant's father. Melvin Allen stated he had given the coat to defendant. Defendant's father testified he had only seen defendant wearing it on one or two occasions prior to December 8, 1961. Barbara Brown testified she was with defendant from 9 to 10:30 p. m. on December 8, 1961; that shortly after 9 p. m. she saw defendant loan his car to Marvin White but that she had left the defendant and gone home before White returned the car.

Defendant contends that the deputies' action in searching his automobile violated the fourth and fifth amendments of the United States Constitution, article 1, section 19 of the California Constitution; that it amounted to a denial of due process as guaranteed by the 14th amendment of the United States Constitution and that the evidence obtained thereby should have been excluded under the rule laid down by People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513. It is conceded that if at the time the officers made the search there was reasonable or probable cause for them to do so, the search and subsequent arrest of defendant and seizure of the evidence were not in violation of any of defendant's rights.

'Reasonable or probable cause is shown when a man of ordinary care and prudence, knowing what the officers knew and seeing what they did, would be led to believe or consciously entertain a strong suspicion of the guilt of the accused. [Citations.]' (People v. McCottry, 205 A.C.A. 772, 776, 23 Cal.Rptr. 309, 311; People v. Kilvington, 104 Cal. 86, 92, 37 P. 799; People v. Steffano, 177 Cal.App.2d 414, 417, 2 Cal.Rptr. 176.)

'Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge * * * [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.' (Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879.)

The question of whether an officer has a right to interrogate the occupant of a vehicle is a separate issue from whether he has the right to search and arrest the occupant. (People v. King, 175 Cal.App.2d 386, 390, 346 P.2d 235; People v. Ellsworth, 190 Cal.App.2d 844, 846, 12 Cal.Rptr. 433.)

'The cour...