People v. Ramsey

• Decision Date: 25 April 1969
• Docket Number: Cr. 14298
• Citation: 272 Cal.App.2d 302,77 Cal.Rptr. 249
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Rex RAMSEY, Jr., et al., Defendants and Respondents.

Page 249

77 Cal.Rptr. 249

272 Cal.App.2d 302

The PEOPLE of the State of California, Plaintiff and Appellant, v. Rex RAMSEY, Jr., et al., Defendants and Respondents.

Cr. 14298.

Court of Appeal, Second District, Division 3, California.

April 25, 1969.

As Modified May 13, 1969.

Rehearing Denied May 14, 1969.

Hearing Denied June 18, 1969.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Chief Deputy Dist. Atty., and Donald J. Kaplan, Deputy Dist. Atty., for appellant.

Richard T. Sykes, Encino, for respondents.

COBEY, Associate Justice.

This is an appeal by the People from the granting of a motion made by defendants, pursuant to Penal Code section 995, to dismiss seven charges against them. These charges included one count of grand theft auto (Pen.Code § 487, subd. 3), three counts of receiving stolen property (Pen.Code § 496) and two counts of conspiracy (Pen.Code § 182) against all defendants, and one count of receiving stolen property against defendant Harbert only. These charges were dismissed by the trial court on the ground that all the evidence in the case was derived from a police officer's unconstitutional search of premises where the first of the stolen cars was found. We affirm.

On appeal, the People contend that this search was not unconstitutional. Additionally they argue that once the validity of the search is established, (1) there was probable cause to arrest defendants Harbert, Shoop, Harris and McKie; (2) the search and seizure conducted within Unit 4, one of the places where a stolen car was found, was lawful; and (3) sufficient competent evidence was presented at the preliminary examination to support the information as to all counts except Count III. ¹

THE FACTS

On October 12, 1966, on arriving for work at about 6 a.m., the manager of a catering service at 7955 Haskell in Van Nuys found the premises full of smoke, which apparently was coming from the adjacent unit, Unit 12--A. The catering service was located in one unit of an industrial complex composed of units facing a central courtyard area. The manager opened the smaller of the two doors to 12--A by taking it off its hinges and saw smoke inside. He called the fire department. A unit of the Los Angeles Fire Department, led by Capt. Frank Reischl, responded to his call.

The firemen entered 12--A by the door which the catering service manager had opened. On the floor of 12--A they found a smouldering rag. They put out the fire, ascertained that there was no further fire hazard, and left after putting the door back on its hinges. ²

While in 12--A Reischl noticed that it contained a maroon Mustang automobile and a white Mustang. The white Mustang had apparently been cut in half with an acetylene torch and its accessories, seats, and engine had been removed. Its fenders and grille were stacked against a wall and there was an engine on a hoist. The place did not look to Reischl like an automobile shop, as the only tools he could see were a cutting torch and a set of mechanic's socket wrenches, and there were no drip pans. With the exception of the smouldering rag on the floor, the premises were clean and neatly swept.

After returning to the fire station, Reischl telephoned the Van Nuys police station and reported his observations to the officer at the desk.

James Nelson, a Los Angeles police officer, arrived at the scene of the fire between 7:30 and 7:45 a.m. He had received a call from a field sergeant over his car radio some 15 minutes earlier, telling him to go to Unit 12--A at 7955 Haskell, 'contact the fireman and stand by for the detectives and check any serial numbers or license numbers for possible stolen vehicles.' On arrival, he smelled smoke but did not see any firemen. Using a drive running along one side of Unit 12--A, he walked around the building looking for the firemen. He found the door to Unit 12--A open approximately 12 to 18 inches. He opened the door wider and from the doorway, without going into the unit, put his head inside to look for the firemen.

From this vantage point Nelson saw no firemen. The interior of the unit looked to him like a body shop or an auto repair shop. He saw that it contained a white 1965 Mustang, with all its parts removed, and a red 1967 Mustang from which the hood and, apparently, the air conditioner or radiator had been removed. He could see a temporary paper license plate on the red car, but could not read the number. After walking around the building again, he returned to his radio car and called the police station. He asked whether there was supposed to be a fireman on the scene and requested further instructions. He was told that no new instructions had been received.

He then came back to the unit and entered to check the cars for license and serial numbers. He was able to determine the motor number and temporary license plate number of the red car, but the serial number of the white car appeared to have been burned off. He went to his car again and called in the numbers of the red Mustang to the police station. A check revealed that this car had been stolen. Nelson then waited until two detectives arrived. He informed them of the stolen car inside the unit and left the scene.

Sgt. Kenneth Wheeler, one of the two detectives, entered Unit 12--A, verified the fact that the 1967 Mustang described by Nelson was a stolen car, and locked the door to Unit 12--A. Thereafter, beginning at about 8:30 a.m., Wheeler initiated a stake-out of Unit 12--A.

Shortly after midnight the following morning defendant Harbert arrived at Unit 12--A and let himself in apparently by unlocking the door which had been open earlier. He was arrested after he failed twice to respond to Officer Wheeler's knocking on the door of Unit 12--A and his subsequent attempt to run away from the policemen. After being advised of his constitutional rights, which he appeared to understand, he stated that his name was Don Harbert and that he had walked to that location from downtown Los Angeles. A check of the area for a vehicle which he might have used resulted in the finding of defendant Shoop seated in a parked car about a block away. Shoop agreed to come with the police to Unit 12--A. There he identified Harbert as the person with whom he had driven from Los Angeles. Shoop was then arrested. A search of the persons of Harbert and Shoop revealed that both carried keys which fitted the padlocks of both Units 12--A and 17.

Meanwhile, acting on information received from the tenant of Unit 11 that several individuals had been going back and forth between Units 12--A and 17 and the discovery that both units had padlocks of the same type and brand, the police had also initiated a stake-out of Unit 17. This stake-out had begun at about noon the previous day. It resulted in the arrest that afternoon of defendants McKie and Harris, who had come out of Unit 17 carrying auto parts whose ownership they were unwilling or unable to explain to the arresting officers. On the following day, these officers entered Units 12--A and 17 to make an inventory of their contents. The People concede that this entry and search of Unit 17, which was carried out without a search warrant or the consent of either McKie and Harris, was unconstitutional.

Further police investigation revealed that the owner of the premises at 7955 Haskell had rented Unit 12--A to defendant Ramsey and Unit 17 to defendant Harris. Another unit, Unit 6, was rented to a Mr. Williamson who had given the owner the same phone number as Ramsey's. A search warrant was obtained for Unit 4, and a search of Unit 4 pursuant to this warrant resulted in the discovery of an orange 1965 Corvette.

The 1967 red or maroon Mustang found in Unit 12--A, the 1962 red or maroon Corvette in which Shoop was found, a dark green Jaguar XKE found in Unit 17, and the Corvette discovered in Unit 4, were all identified as stolen vehicles.

THE INITIAL UNCONSTITUTIONAL SEARCH AND ITS EFFECT

A threshold question is whether the protection of the Fourth Amendment to the United States Constitution, and its counter-part in the California Constitution, Article I, section 19, both of which guarantee the right of people to be secure in their 'persons, houses, papers, and effects, against unreasonable' searches and seizures, extends to Unit 12--A, the first garage entered by the police. The People argue that Unit 12--A is a 'garage,' neither attached nor immediately adjacent to any residential structure, and as such is not entitled to the constitutional protection afforded to 'houses.' In support of this proposition, they cite several California cases upholding the admissibility of evidence obtained from searches of garages or other structures not immediately attached to residences. (See People v. Shields, 232 Cal.App.2d 716, 43 Cal.Rptr. 188; People v. Alexander, 253 Cal.App.2d 691, 61 Cal.Rptr. 814; People v. Lees, 257 Cal.App.2d 363, 64 Cal.Rptr. 888; People v. Murray, 270 A.C.A. 225 75 Cal.Rptr. 625; People v. Muriel, 268 A.C.A. 514, 74 Cal.Rptr. 44.)

The applicable holdings of these cases are apparently based upon the ancient common law distinction between the curtilage, the area immediately surrounding the house and habitually used for family purposes, and open fields. (See Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898, 900.) There would appear to be some doubt as to whether this territorial concept of the curtilage, which originally referred to the land and buildings within the shelter of a baron's stone walls, has substantial relevance to the housing conditions of modern life. (See LaFave, Search and Seizure: The Course of True Law * * * Has Not * * * Run Smooth (1966) U.Ill. L.F. 255, 338--40.) In any event, however, as People v. Alexander, Supra, 253 Cal.App.2d 691, 61 Cal.Rptr. 814, made clear, the basic rationale of these cases is not a mechanical application of the curtilage concept, but instead the...