People v. Orr

• Decision Date: 21 July 1972
• Docket Number: Cr. 20860
• Citation: 103 Cal.Rptr. 266,26 Cal.App.3d 849
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Steven John ORR, Defendant and Appellant.

Page 266

103 Cal.Rptr. 266

26 Cal.App.3d 849

The PEOPLE of the State of California, Plaintiff and Respondent, v. Steven John ORR, Defendant and Appellant.

Cr. 20860.

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

July 21, 1972.

Norman A. Chernin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Frederick R. Millar, Jr., Robert W. Carney, and John R. Evans, Deputy Attys. Gen., for plaintiff and respondent.

AISO, Associate Justice.

By information defendant Steven John Orr was charged with burglary (Pen.Code, § 459). His motion to suppress real and testimonial evidence under Penal Code section 1538.5 was heard, argued, and denied. He thereupon duly waived in jury trial and stipulated to submission of his case on the transcript of the preliminary examination (In re Mosley (1970) 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473, cert. den. 400 U.S. 905, 91 S.Ct. 144, 27 L.Ed.2d 142). Found guilty of burglary of the second degree, he was committed to the Youth Authority upon his waiving pre-sentence probation report and requesting immediate commitment to the Youth Authority from which he was an parole. He appeals from the judgment (order of commitment to Youth Authority) (Welf. & Inst.Code, § 1737.5) seeking a review of the order denying his section 1538.5 motion (People v. Fein (1971) 4 Cal.3d 747, 750, 94 Cal.Rptr. 607, 484 P.2d 583).

On May 26, 1971, the premises occupied by William Brown, Richard Jones, and James Turner at 182220 Pacific Coast Highway were burglarized. Following his arrest, defendant confessed to the burglary and voluntarily assisted the officers in recovering some of the stolen items from his bedroom and the garage of his parents' home where he lived. He contends before us, as he did in the trial court, that all of the real evidence and confession introduced against him should have been suppressed as the tainted product flowing from an illegal arrest, which resulted from an arresting officer illegally looking into a blue metal box under the circumstances set forth below. ¹ The People deny the claim of illegality. They assert that in any event the illegality, if any, did not contaminate the other real evidence and confession supportive of the conviction and that the judgment therefore should be affirmed.

We have concluded there was no improper search and seizure and that the judgment should be sustained.

The blue 'metallic-appearing' box with 'sort of an orangeish-yellow circular contral design in it' and characterized variously by the witnesses as a 'cash box,' 'safedeposit box' and a 'strongbox,' was one of the items stolen in the burglary. It belonged to James Turner who kept his bills, tax returns, and other papers in it.

The evidence adduced at the section 1538.5 hearing is summarized in the light most favorable to the trial court's findings in light of the decisional authorities, which will be discussed more fully later.

On June 10, 1971, about 6 p.m. when it was starting to get dark, Officers Earl Lesley Johnson and William Charles Violante, of the Los Angeles Police Department, assigned to Devonshire Station patrol duties, were westbound in a vehicle on Nordhoff Street at the intersection of Zelzah Avenue in Northridge. They were in uniform and their vehicle was a marked black and white police car. Officer Violante was driving and Officer Johnson was a passenger.

The campus of San Fernando Valley State College (now California State University at Northridge) lies on the north side of Nordhoff commencing from the west side of Zelzah. Both officers testified that the police had had 'lots of problems' due to the high frequency of burglaries from the motor vehicles parked in that area. On the south side of Nordhoff, a cement block wall ² 5 to 6 feet high runs parallel to the southerly curb of Nordhoff extending from Zelzah on the east to Lindley Avenue on the west, walling in the tract houses located south of the wall. Enfield Avenue (on which defendant lived) is the first north-south street west of Zelzah and ends in a cul-de-sac in the general area of concern in this case. There were oleander bushes 6 to 7 feet high growing on the south side of the wall. A dirt path or walkway ran east-west between the wall and Nordhoff. There was a post and rail fence about 3 to 3 1/2 feet high, which ran perpendicular from the wall to the cul-de-sac, separating defendant's yard from his neighbor's.

Just as his vehicle passed Zelzah, Officer Johnson saw defendant standing on the dirt walkway on the south side of Nordhoff approximately 50 to 100 yards west of Zelzah. ³ Defendant was 2 to 3 feet away from the wall, facing north towards the college, and with his back towards the wall. Officer Johnson's attention was drawn by what he characterized as 'furtive movements' of the defendant, who was carrying a suitcase and lookling up and down, i.e., east and west, Nordhoff. At least dring half of the time defendant was looking east the west, he was looking in the direction of the police vehicle. When the police car was 30 to 40 yards away to the east or northeast of defendant, he made a half-turn and threw the suitcase which he had in his hand over the wall. About 20 feet west of defendant, there was a vehicle with another person in it; its passenger door was open. The officer knew that there was a street ending in a cul-de-sac on the other side of the wall in the general area where defendant's actions were observed. Defendant turned and walked back towards the parked car as the police vehicle made a U-turn and stopped behind it.

Numerous thoughts occurred to Officer Hohnson upon observing defendant's action. 'One was possible burglary from motor vehicle. Another one, possibly the defendant was throwing the suitcase over to possibly another suspect on the other side of the wall to enter one of these residences here (sic), using it as a container to take fruits of a crime out of these residences, or it was the fruits of a crime he was disposing of.'

Officer Johnson left his vehicle as soon as it had halted, telling his partner to take care of the two occupants of the vehicle parked ahead of them. He proceeded forthwith to the wall, scaled it, and dropped himself on the other side of it. He was unable to see over the wall. There were bushes taller than his head on the other side. Landing on the other side, he saw and retrieved from a dirt area, without any grass or bushes growing on it, the suitcase and a metal box previously described.

The suitcase, about 4 by 2 feet, was closed. The metal box, 'approximately twelve by six' (inches), was lying about 3 feet from the suitcase and 6 to 8 feet from the wall. He pointed out with 'an X' (sic) (see fn. 4, Infra) the respective locations of the suitcase and box on the diagram (Exhibit A) apparently in response to an inquiry by the trial court. ⁴ The box had a dial indicator for a combination locking device and a hasp with which to close it. The box was not locked and the hasp was loose; however, it was not open in the sense of permitting a look at its contents. On the outside of the box, there 'appeared to be three to four pry marks made by approximately a half-inch bladed screwdriver.' Officer Johnson opened the top of the unlocked box, looked inside, and noted that it contained numerous bills, receipts, and miscellaneous papers in the name of James Turner with a Pacific Coast Highway, Malibu, address. He was not aware of any specific burglary at the time. He took possession of the suitcase and metal box and climbed back over the wall. He then asked defendant and the other party with defendant if either was named James Turner. Upon their negative response, he placed both of them under arrest upon suspicion of burglary. He had not been in contact with defendant until he came back from his excursion over the wall. He had no search warrant when he looked into the box.

Officer Violante also saw defendant when he was about 100 yards away. He observed defendant standing near the 'brick wall' looking to his right and to his left and then throw a suitcase over the wall. While his partner officer went over the wall, he talked to defendant and the driver of the parked vehicle. He asked defendant what he was doing and defendant replied that he was throwing his suitcase onto the other side of the wall, that he lived there. He asked defendant for some identification. In response, defendant displayed a selective service card, but Officer Violante could not remember seeing an address on it. Defendant possibly displayed a library card at the same time. About this time, Officer Johnson returned carrying the suitcase and blue metal box. He noted the condition of the metal box indicating that it had been pried open. He looked inside and saw miscellaneous papers in the name of James Turner. He confirmed the arrest of the two suspects after his partner asked if either of them was James Turner and receive a negative answer.

Defendant testified in part here relevant: At the time in question he did reside with him parents at 9046 Enfield Avenue located on the east half of the cul-de-sac. There is another yard located on the west half of the cul-de-sac.

He did not throw the suitcase; he just lifted the suitcase over the wall and let it drop on the other side onto his own property. Although his testimony concerning the oleanders accords in general with the testimony of the officers, he stated that rather than oleanders there were roses about waist high growing where he dropped the suitcase. There is a break in the line of oleanders in the area of the post and rail fence where there are roses. He had returned to Jerome Kushner's car to pick up the remaining property he had left on the back seat. Later on defendant stated: 'The radio was inside the car with the leather French coat I had on.'

He told Officer Violante...