People v. Reed

• Decision Date: 19 April 1962
• Docket Number: Cr. 8068
• Citation: 202 Cal.App.2d 575,20 Cal.Rptr. 911
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. John REED, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 911

20 Cal.Rptr. 911

202 Cal.App.2d 575

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

Cr. 8068.

District Court of Appeal, Second District, Division 2, California.

April 19, 1962.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Harry Wood, Deputy Dist. Atty., Harry B. Sondheim, Deputy Dist. Atty., for appellant.

Ellery E. Cuff, Public Defender, Forrest Latiner, Deputy Public Defender, James L. McCormick, Deputy Public Defender, for respondent.

ASHBURN, Justice.

The People appeal from an order granting defendant's motion under § 995, Penal Code, to set aside the information charging defendant with possession of marijuana in violation of § 11530, Health and Safety Code. The basis of the ruling seems to be that indispensable evidence was procured by an unreasonable search of defendant's person and seizure of the proscribed marijuana found on him. The trial judge remarked that 'it is a borderline case and we might as well stop it now if it can't possibly result in a conviction,' and, '[l]et's get a new transcript.'

On August 12, 1961, at about 8:45 p. m., Police Officers Burke and Kofahl were driving west on 103rd Street in Watts, Los Angeles County, and observed a 1950 Studebaker sedan coming east on the same street. It pulled into a parking lot, stopped, backed into and across 103rd Street, causing several oncoming cars to stop rapidly to avoid hitting it. The Studebaker then went west on 103rd Street to Success Street, where it turned north to 102nd Street, at which point it was stopped by the officers. Kofahl asked defendant to step to the rear of the car and both officers there talked to him. Burke 'asked him for identification and if he had a driver's license,' to which he replied, 'No, I've no identification.' Burke then made a 'cursory search' of him and felt a packet of papers in his shirt pocket; removing it he noticed it was brown cigarette papers. Asked if 'he smoked any weed--indicating marijuana'--Reed said, 'I do'; also that he had none on him. To an inquiry as to where he got it he said, 'I'm not about to tell you.' Asked if he had any weed he said, 'No, but I bought a can approximately one week ago, but I don't have any left.' The officers decided to arrest him and take him to Watts substation 'for investigation due to the fact that he had no identification and he couldn't even prove his true identity' (quoting Officer Burke's testimony); this they did.

The officers had witnessed the commission of a misdemeanor by Reed,--backing out of private property without yielding the right of way to oncoming traffic (Veh.Code, § 21804) and he was subject to arrest without a warrant under Penal Code, § 836, subdivision 1 (5 Cal.Jur.2d § 8, p. 155). After the officers had talked with him he was also subject to arrest under subdivision 3 of the same section,--'reasonable cause to believe that the person to be arrested has committed a felony,' through purchase and possession of a can of marijuana a week before. (See, People v. Rios, 46 Cal.2d 297, 298, 294 P.2d 39; People v. Handy, 200 A.C.A. 434, 439, 19 Cal.Rptr. 409.) Indeed, an arrest for the misdemeanor was imperative, for the officers had witnessed the commission of the offense (5 Cal.Jur.2d § 7, p. 155). Section 40302, Vehicle Code provides: 'Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made in any of the following cases: (a) When the person arrested fails to exhibit his driver's license or other satisfactory evidence of his identity. * * *' ¹ Officer Burke's terming their taking him into custody as an arrest 'for investigation' is unimportant, for the commission of the misdemeanor had been witnessed by the officers, the law impliedly commanded an arrest, and § 40302 required that the offender be taken before a magistrate promptly. People v. Knox, 178 Cal.App.2d 502, 513, 3 Cal.Rptr. 70, 77: 'The knowledge and the information of the officer at that time was ample to meet the statutory test. It is true that at the trial of this cause the officer testified that he had been in doubt as to whether appellant was guilty of a violation of said Section 501 of the Vehicle Code. It is not the actual state of the officer's mind that is determinative. It is the circumstances that determine the right to arrest, and if they be such as to constitute reasonable cause for believing that a felony has been committed the officer may arrest, even though he has some doubt about the matter.'

There was no impropriety in the questioning of defendant by the officers immediately after stopping him. His conduct had been quite unusual, a departure from normal activity suggesting that the selection in the middle of the block of another street upon which to travel in the same direction defendant was already going must have had some immediate cause. Was it the approach of police and a sense of guilt and a desire to avoid 'the law?' Or was it intoxication or some other form of aberration? The police had a right to inquire and this they did in a proper way. (See, People v. Martin, 45 Cal.2d 755, 761, 290 P.2d 855; People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852; People v. Bouchard, 161 Cal.App.2d 302, 305, 326 P.2d 646; People v. One 1958 Chevrolet, 179 Cal.App.2d 604, 611, 4 Cal.Rptr. 128; 44 Cal.Jur.2d § 31, p. 320.) A cursory search was also permissible in the circumstances (People v. One 1958 Chevrolet, supra, at p. 611, 4 Cal.Rptr. 128; People v. Jones, 176 Cal.App.2d 265, 267, 1 Cal.Rptr. 210; People v. Dewson, 150 Cal.App.2d 119, 130, 310 P.2d 162; People v. Davis, 188 Cal.App.2d 718, 720, 722-723, 10 Cal.Rptr. 610) and it properly included the person as well as property (People v. Dewson, supra, 150 Cal.App.2d p. 130, 310 P.2d 162; People v. Smith, 142 Cal.App.2d 287, 294, 298 P.2d 540). In People v. Stewart, 189 Cal.App.2d 176, 179, 10 Cal.Rptr. 879, 881, it was said: 'In any event, it would appear here that the officers were justified in formally arresting the appellant under a proper interpretation of Penal Code section 842, and it would further appear that having so arrested the appellant, they were justified in searching him. Any officer who, when arresting an unknown person, fails to search that person before commencing to transport him to jail would be derelict in common caution and in all probability would experience some unpleasantness.'

This search revealed brown cigarette papers such as are used in making marijuana cigarettes. The police were not bound to ignore them. Their discovery prompted reasonable inquiry as to whether defendant 'smoked the weed' and his statement that he had bought a can of it approximately a week before and had used it revealed a felony. At this point the officers had a right to make a thorough search on the basis of reasonable cause to believe a felony had been committed (Pen.Code, § 836, subd. 3) had they seen fit to do so. (People v. Jackson, 164 Cal.App.2d 759, 762, 331 P.2d 63.) The lapse of a week since the commission of the crime would not be important for the reason, among others, that it was a circumstance which suggested the probability of present possession even though denied by defendant (cf., People v. Rios, supra, 46 Cal.2d 297, 298, 294 P.2d 39; People v. Handy, supra, 200 A.C.A. 434, 438, 19 Cal.Rptr. 409).

At the police station a thorough search of defendant's person was made. Again there was no impropriety. Since 1872 § 1412, Penal Code, has provided: 'When money or other property is taken from a defendant, arrested upon a charge of a public offense, the officer taking it must at the time give duplicate receipts therefor, specifying particularly the amount of money or the kind of property taken; one of which receipts he must deliver to the defendant and the other of which he must forthwith file with the Clerk of the Court to which the depositions and statement are to be sent. * * *' The Criminal Practice Act of 1851 contained substantially the same provision in § 607 (Stats. 1851, Ch. 29, p. 280). This is long...