People v. Poehner, Cr. 4288

• Decision Date: 31 March 1971
• Docket Number: Cr. 4288
• Citation: 94 Cal.Rptr. 94,16 Cal.App.3d 481
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jonathon POEHNER, Defendant and Appellant.

Page 94

94 Cal.Rptr. 94

16 Cal.App.3d 481

The PEOPLE, Plaintiff and Respondent, v. Jonathon POEHNER, Defendant and Appellant.

Cr. 4288.

Court of Appeal, Fourth District, Division 1, California.

March 31, 1971.

[16 Cal.App.3d 484] Leif Tessem, San Diego, under appointment by the Court of Appeal, for defendant-appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Russell Iungerich, Deputy Atty. Gen., for plaintiff-respondent.

OPINION

COUGLIN, Associate Justice.

Defendant appeals his conviction of the offense of transportation of restricted dangerous drugs, contending (1) the court erred in denying his motion to suppress, and (2) the evidence is insufficient to support his conviction.

On January 13, 1970, shortly after 11 o'clock p.m., a United States border inspector at the Tecate border station, by radio, advised border patrolman Rowe, acting as a lookout on a hill nearby, a blue Volkswagen, giving its license plate number, was passing through the station; the occupants had come from Tijuana and lived in the San Diego area; and he felt it was likely they would make a pickup of narcotics after leaving the station because there was no reason why they should take a 70 mile trip out of their way.

A patrolman on the hill was able to see the inspector talking to occupants of cars as they passed through the port of entry and to observe the cars thereafter as they traveled northerly along Tecate Road, which is the main route from the border station to Highway 94, an east-west artery. The area in question has a history of trafficking in narcotics. One of the most widely used procedures to smuggle narcotics across the border, brought there by automobile, is to have a person carry the narcotics across the border; hide them along Tecate Road; return to the automobile; drive it across the border; and then pick up the hidden narcotics.

Border Patrolmen Feely and Summers, while on patrol duty in the area, overheard the radio message to Rowe, shortly thereafter, by radio, received a message from Rowe asking if they had heard the message from the inspector, also advising he had the suspect vehicle in sight and was watching it; and a minute or so later received another message from Rowe stating the Volkswagen had turned onto a side road, went about 50 yards, stopped, and its lights were turned off.

In a later communication with Rowe, the patrolmen learned he had lost sight of the Volkswagen after its lights were turned off; the fog closed in; and he did not see it again.

About five minutes after the second message from Rowe, the patrolmen observed the headlights of a vehicle approach and enter upon Highway 94 from Tecate Road; followed it in their car; saw it was a blue Volkswagen with the same license number reported by the border inspector; and activated their red light and siren. The Volkswagen, which was traveling 40 miles per hour, passed a wide place in the road where it could have stopped about 600 feet from the point where the red light and siren had been activated; and proceeded to the next wide place in the road, about 3300 feet further on, where it stopped. While the Volkswagen was coming to a stop a tan colored package was thrown from the right window or right door; landed on the pavement; and came to rest in a bush alongside the road. The package looked like a rolled-up paper sack; was 8 inches long and 3 1/2 inches in diameter; and consisted of three paper sacks, one within another. The innermost sack contained 987 Seconal capsules. Defendant, Poehner, and another man, named Aranda, were in the Volkswagen; were interrogated by the patrolmen; were arrested; and, thereafter, were charged, among other things, with transportation of restricted dangerous drugs.

At the preliminary hearing Feely and Summers, the patrolmen, were the only witnesses. The foregoing statement of facts is premised on their testimony. The defendant objected to questions eliciting the radio communication by the inspector to Rowe and the communications from Rowe to the patrolmen. The objection was overruled and testimony relating the communications was admitted on the issue of probable cause alone.

Defendant's written motion to suppress was directed to 'all items found in or around the vehicle he (defendant) was in on January 13, 1970, on the grounds that these items were obtained as the result of an unlawful detention and search and seizure.' The hearing on the motion was submitted upon the transcript of the preliminary hearing. No oral testimony was presented. The motion was denied.

Initially we direct attention to the fact the question presented by the motion to suppress is not whether the seizure of the package containing Seconal capsules was the product of a search but whether it was the product of illegal police activity in undertaking an investigation without probable cause. The package was thrown from the Volkswagen and was in plain sight when retrieved by the patrolmen. There was no search. (People v. Harris, 15 Cal.App.3d 498, 501, 93 Cal.Rptr. 285.) If the patrolmen were authorized to stop the Volkswagen as an investigative procedure, evidence obtained in the process thereof was not obtained illegally.

The distance between the Tecate border station and the intersection of Tecate Road by Highway 94 is about two miles. The information possessed by the patrolmen when they first saw the Volkswagen furnished probable cause to stop it and interrogate the occupants as an investigative procedure preliminary to a determination whether there was probable cause to believe they might be smuggling narcotics into the United States from Mexico in the manner heretofore described, i.e., first carrying them across the border in person and then picking them up by automobile. The action of the patrolmen, premised on information then possessed, was not illegal.

Defendant contends it was error to deny his motion to suppress because the information received by Feely and Summers from the inspector and Rowe, which the People assert furnished probable cause to investigate, was not verified by the latter at the hearing on the motion. Cited in support of this contention are the decisions in People v. Madden, 2 Cal.3d 1017, 1020, 88 Cal.Rptr. 171, 471 P.2d 971; Ojeda v. Superior Court, 12 Cal.App.3d 909, 91 Cal.Rptr. 145; People v. Escollias, 264 Cal.App.2d 16, 19, 70 Cal.Rptr. 65, and People v. Harvey, 156 Cal.App.2d 516, 522--524, 319 P.2d 689. (See also Remers v. Superior Court, 2 Cal.3d 659, 667, 87 Cal.Rptr. 202, 470 P.2d 11.) The general rule stated in these cases prescribes the evidentiary showing required to justify a search incident to an arrest premised on probable cause based on information received through official channels, and provides 'when an officer furnishes to another officer information which leads to an arrest, the People must show the basis for the former officer's information.' (Remers v. Superior Court, Supra, 2 Cal.3d 659, 667, 87 Cal.Rptr. 202, 206, 470 P.2d 11, 15.) In most cases where the rule has been applied the information furnished the arresting officer has been the product of hearsay evidence and consisted either of (1) a statement by the informing officer asserting as a fact the defendant had committed a particular crime or was at a particular place where subsequently he was arrested, without stating the basis for the assertion (People v. Madden, Supra, 2 Cal.2d 1017, 1020--1021, 88 Cal.Rptr. 171, 471 P.2d 971; Remers v. Superior Court, Supra, 2 Cal.3d 659, 666--667, 87 Cal.Rptr. 202, 470 P.2d 11; Ojeda v. Superior Court, Supra, 12 Cal.App.3d 909, 913--915, 919--920, 91 Cal.Rptr. 145; People v. Adkins, 273 Cal.App.2d 196, 197--199, 78 Cal.Rptr. 397; People v. Rice, 253 Cal.App.2d 789, 792, 61 Cal.Rptr. 394; People v. Pease, 242 Cal.App.2d 442, 448, 51 Cal.Rptr. 448; cf. People v. Cox, 263 Cal.App.2d 176, 185, 69 Cal.Rptr. 410); (2) a statement by the informing officer a lay informer had told him the defendant was guilty of a crime or relating information given by the informer, without identifying the informer, which has been described as information given by a 'phantom informer' (People v. Harvey, Supra, 156 Cal.App.2d 516, 521--523, 319 P.2d 689; see People v. Escollias, Supra, 264 Cal.App.2d 16, 17--19, 70 Cal.Rptr. 65); or (3) a request, through official channels, to arrest the defendant for a particular crime for which no warrant has been issued. (People v. Lara, 67 Cal.2d 365, 373--375, 62 Cal.Rptr. 586, 432 P.2d 202.)

In Remers v. Superior Court, Supra, 2 Cal.3d 659, 666--667, 87 Cal.Rptr. 202, 206, 470 P.2d 11, 15, the court states the rule and the reason therefor in this language:

'It is well settled that while it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, 'when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness.' (Citations.) To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer. (Citations.) 'If this were so, every utterance...