People v. One 1960 Cadillac Coupe
| Decision Date | 30 June 1964 |
| Docket Number | No. CCB,No. 60,CCB,60 |
| Citation | 39 Cal.Rptr. 421 |
| Parties | The PEOPLE of the State of California, Plaintiff and Appellant, v. ONE 1960 CADILLAC COUPE, License205, SerialG024889, Defendant and Respondent. Civ. 28067. |
| Court | California Court of Appeals Court of Appeals |
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for appellant.
Sam Bubrick, Los Angeles, for respondent.
The People appeal from a judgment denying forfeiture of an automobile alleged to have been used in unlawful transportation or to facilitate unlawful possession of a narcotic, marijuana, by an occupant thereof. The ruling was based upon a finding that the incriminatory evidence introduced by plaintiff was the product of an unlawful search and seizure.
The registered owner was William Reulman, notice of seizure and intended forfeiture was given him as required by statute (section 11613, Health and Safety Code) and he answered, denying the charge. The only witness at the trial was Officer Charles Balf of the Pasadena Police Department. Reulman did not testify nor did he appear in person nor was there any explanation of his absence.
On June 7, 1963, one Vroman reported to the police department that he had found a 'fit' consisting of hypodermic needle, spoon, cotton, eye dropper and piece of white muslin; that he had found it in the planter adjacent to the sidewalk immediately in front of his place of business; it was wrapped in a white rag and concealed under the flowers in the planter. Officer Balf and a 'partner' went to Mr. Vroman's place, were shown the 'fit' and told by Vroman that it was not there the previous day because he had watered the plants and it could not have been there over 24 hours. The officers took possession of the 'fit' which the witness (an expert in the narcotics field) termed an illegal outfit customarily used by narcotics users to inject heroin into the veins. They decided to look around and were in the rear of Vroman's property when they first saw Reulman. The location was 3207 East Foothill Boulevard. An alley ran east and west along the north side of the property and Reulman was driving through it to the east. At Sierra Madre Villa he turned right toward Foothill where he turned right again and parked his automobile immediately in front of the place where the 'fit' had been found, separated from the planter some twelve feet, the width of the sidewalk. He was continuously in view of the officers except when passing from Sierra Madre Villa to Foothill and the fair inference is that he did not stop until he reached his parking place.
Reulman, whom we will call defendant, was driving a 1960 Cadillac Coupe (the subject matter of this proceeding) and the officer's reaction was that the man and car did not belong together. The witness was dressed in civilian clothes and using an unmarked police vehicle. Defendant apparently had some reactions of his own for he appeared to be very nervous and Balf saw him looking in his rear view mirror as he drove along.
When he arrived at 3207 East Foothill he parked the Cadillac immediately in front, walked around the rear and started east on Foothill. He looked in the window of a barber shop that was in the same block, then he turned and walked back toward the police who were on or near Foothill. They stopped him and asked for an identification and he produced an expired driver's license. When that fact was mentioned he said he knew it but was eligible to re-apply. Defendant was very nervous and was evasive in answering questions. Asked if he was ever arrested, he said 'No.' The police made a record check and found he had been arrested previously; confronted with this fact he said it was approximately ten years ago, and he was arrested by a vice officer. Asked where he was going down the sidewalk he said he was just taking a walk. Later he was asked the same question and said he was doing to the barber shop to see if a friend of his was there.
The witness 'asked him if he had ever been arrested for narcotics' and he said 'no'; shown the 'fit' he said it did not belong to him. Balf asked for 'permissive search of his arm.' 'Well, I would like to look at your arm.' He was wearing a sweater; said, 'O.K.'; 'Would you roll your sweater up on your right arm'; he did so. The witness saw five puncture marks on the inside of the arm at the elbow, which '[i]n many instances * * * is an illegal injection of narcotics * * * a mark commonly found on subjects illegally using narcotics.' The witness had been on the police force for eleven years and had specialized in narcotics for three years of that period, making several hundred such arrests; had had courses of study in the Pasadena Police Department, a course at the Los Angeles Police Department, and extra curricular literature; no objection to his qualification as an expert was voiced by defense counsel. He said that two marks appeared to be two days old and the others a week or two weeks old; later, that the freshest one 'would be very possible within the past 24 hours.' Most addicts use heroin intravenously and the marks he saw were such as 'commonly [are] found on subjects illegally using narcotics'; they were right over the vein. (A 'fit' is never used in administering marijuana, usually for heroin or other heavy narcotic.) Defendant denied that they were hypodermic marks. Asked if he had a weapon he produced and delivered a knife from his pocket.
He was then searched and the police found in his right front pocket a small glass bottle containing marijuana. 'What is this?' 'Well, you can't blame me for trying.' He made a confusing statement about obtaining it in Tijuana, taking it thence to Sunnyvale, then 'came down here to attend a funeral and brought this marijuana with him, and he said the day prior to this, his arrest, that he had hidden this bottle of marijuana in a vacant lot on another street.'
From the time defendant left the Cadillac until the bottle was found in his pocket he was never out of sight of the police and he did not pick up a bottle during that period.
Defendant was arrested for possession after making the confusing statements above mentioned.
Though Reulman was arrested, held to answer the charge of possession and procured a dismissal under section 995, Penal Code on the ground that the incriminatory evidence was the fruit of an unlawful search and seizure, that constitutes no bar to recanvassing the same facts in this subsequent proceeding though the real party in interest is the same person. (People v. Joseph, 153 Cal.App.2d 548, 551-552, 314 P.2d 1004; People v. Prewitt, 52 Cal.2d 330, 340, 341 P.2d 1; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23; People v. Van Eyk, 56 Cal.2d 471, 477, 15 Cal.Rptr. 150, 364 P.2d 326.)
The decisive question here is whether the officer had reasonable cause to believe and did believe that defendant had committed a felony at the time of the search--not whether the judge found such cause actually to have existed but whether, upon the information possessed by him, the officer himself had reasonable ground to so believe. (People v. Crowley, 193 Cal.App.2d 310, 313-314, 14 Cal.Rptr. 112, 114.) An 'honest and strong suspicion' based upon the facts in hand is adequate basis for a search.
Section 836 Penal Code says that an arrest may be made by an officer without a warrant (there was none here):
As will be seen, the officer at the time of arrest had reasonable cause to believe that defendant had committed a felony, i. e., possession of heroin.
There were two steps leading to this search which should be differentiated and the difference kept in mind--first, the interviewing of defendant and, second, the examination of his person, the search.
Circumstances short of probable cause may afford adequate basis for questioning a pedestrian, either at night or in the daytime. In Hood v. Superior Court, 220 A.C.A. 241, 244, 33 Cal.Rptr. 782, 784, the court said: 'The California rule, that merely stopping a car in the course of a criminal investigation does not require that there be reasonable grounds for the arrest of the occupants, was recently reaffirmed in People v. Mickelson, 59 Cal.2d 448, 449-452, 30 Cal.Rptr. 18, 380 P.2d 658. * * *' However, even though the circumstances authorizing such 'temporary detentions' may be 'short of probable cause to make an arrest' (People v. Mickelson, supra, 59 Cal.2d p. 450 et seq., 30 Cal.Rptr. 18, 380 P.2d 658) nevertheless there must exist some suspicious or unusual circumstance to authorize even this limited invasion of a citizen's privacy.'
People v. Cowman, 223 A.C.A. 110, 118, 35 Cal.Rptr. 528, 534: ...
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People v. Reulman
...the reasons expressed by Mr. Justice Ashburn in the opinion prepared by him for the District Court of Appeal in People v. One 1960 Cadillac Coupe (Cal.App.) 39 Cal.Rptr. 421. SCHAUER, 2 J., Rehearing denied; McCOMB and BURKE, JJ., dissenting, MOSK, J., not participating. * State Report Titl......