People v. Robertson

Decision Date08 February 1966
Docket NumberCr. 2266
Citation240 Cal.App.2d 99,49 Cal.Rptr. 345
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Irving George ROBERTSON, Defendant and Appellant.

Herbert L. Young, San Diego, under appointment by the District Court of Appeal, for defendant and appellant.

Thomas, C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for plaintiff and respondent.

COUGHLIN, Justice.

Defendant was convicted of the offense of possession of a concealed weapon after having been convicted previously of a felony, viz., a violation of Penal Code, § 12021.

On the morning of December 28, 1964, Officer Davis, of the San Diego Police Department stopped defendant for questioning because he bore a striking resemblance to a 'facsimile photo' on a police bulletin of a man wanted for murder in Los Angeles. The bulletin related evidence of two homicides, effected by multiple stab wounds, occurring respectively on November 13 and 14, 1964; did not identify the suspect by name; set forth a 'facsimile photo' of him; described his physical features; also described the clothes he wore when he left the premises where one of the homicides occurred and was seen carrying a knife by a person who 'was menaced' by him; and asked that 'names, prints and mugs of suspects' be forwarded 'for elimination.' Defendant told Davis he lived at the Golden West Hotel; was a tailor; was on his way to work; had been in San Diego approximately 10 days; had been in Los Angeles 'approximately six months prior to coming to San Diego'; 1 and that his name was John Joseph Wilson. He was unable to produce any positive identification, and was asked by the officer to accompany the latter to the police station so that he might check the bulletin more thoroughly. Defendant readily consented, saying he would be happy to do so; was advised of his right to remain silent and to counsel; and accompanied the officer to the station, riding in a police ambulance which the officer used for patroling purposes. The officer testified a person under arrest is not transported in an ambulance, but in a 'cage car.' In the police station defendant was shown the bulletin; agreed with the officer he did resemble the person in the 'facsimile photo'; was questioned by another officer, which developed that he had been in Los Angeles at the time of the subject murders; and, following his consent thereto, as testified by him, was photographed and fingerprinted. All of this was part of an investigatory procedure to ascertain whether defendant might have been the person wanted for murder in Los Angeles, and in response to the request contained in the bulletin. He was very cooperative and friendly. When Officer Davis asked to search his room to get proof of his identity he consented. In defendant's presence the patrol captain at the station 'told Officer Davis to take him (defendant) back to the hotel, find good, legitimate identification, and then see that he got to work on time.' The defendant had said he had to get to work at 11 o'clock. While conducting the search of defendant's room, Davis discovered a blue bag that was zipped and locked; asked defendant what was in it; was told 'there were personal things in there'; asked defendant to open the bag but 'he said no'; attempted to persuade him to open the bag but he continued to refuse; and thereupon arrested him for murder. 2 The officer took him, and the bag, to the jail, where defendant was booked, and the bag was searched. In the latter there was a social security card bearing defendant's name, Irving George Robertson, a .25 caliber automatic, a holster and 25 rounds of ammunition. At the trial defendant objected to the introduction of the contents of the bag on the ground they had been obtained illegally. His objection was overruled. The issue on appeal is whether admission of the contents of the bag into evidence was error.

Defendant contends that search and seizure of the bag and its contents was illegal because Officer Davis did not have probable cause to arrest him for murder; that his withdrawal of consent to search the bag may not be considered in determining whether probable cause for his arrest existed; and if the arrest was lawful the search of the bag was not incident thereto because it was not contemporaneous with the arrest which occurred when he was taken to the police station on the first occasion, and even though not arrested until the bag was seized the search thereof was not conducted at that time.

Implicit in the order overruling defendant's objection to admission in evidence of the bag and its contents is a finding of every fact and inference essential to its support and warranted by the evidence. (Estate of Rule, 25 Cal.2d 1, 10, 152 P.2d 1003, 155 A.L.R. 1319; People v. Tannehill, 193 Cal.App.2d 701, 706, 14 Cal.Rptr. 615.) In determining the sufficiency of the evidence in this regard the governing rule on appeal is that the trial court accepted the evidence and the inferences reasonably deducible therefrom which support its order and rejected that which would support a contrary conclusion. (Thomas v. Hunt Mfg. Corp., 42 Cal.2d 734, 736, 269 P.2d 12; People v. Foster, 195 Cal.App.2d 651, 652, 15 Cal.Rptr. 891; Fries v. Anderson, Clayton & Co., 190 Cal.App.2d 667, 675, 12 Cal.Rptr. 336.)

The subject search and seizure were proper if made as an incident to defendant's arrest for murder; the arrest took place at his hotel; there was probable cause to make such; he had not been arrested prior to that time; discovery of the bag occurred during a search to which he consented; and the search of the bag was contemporaneous with the arrest. The issue is whether, assuming the court found these facts, the evidence supports such findings.

Defendant's arrest occurred at his hotel room following discovery of the bag, and not when he was stopped on the street and interrogated by the officer, or when he accompanied the latter to the police station. The original contact with defendant was justified as an investigatory procedure by virtue of his striking resemblance to the picture in the police bulletin. His detention at this time did not constitute an arrest. (People v. Mickelson, 59 Cal.2d 448, 452, 454, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Hilliard, 221 Cal.App.2d 719, 723, 34 Cal.Rptr. 809.) Implied in the ruling of the court and supported by the evidence are findings that the subsequent proceedings at the police station were a continuance of this investigation; followed the identification procedure suggested in People v. Mickelson, supra, 59 Cal.2d 448, 454, 30 Cal.Rptr. 18, 380 P.2d 658 (see also People v. Schader, 62 Cal.2d 716, 723, 44 Cal.Rptr. 193, 401 P.2d 665); were conducted with the consent and cooperation of defendant; were attended and participated in by him voluntarily, without any restraint upon his liberty; and did not constitute an arrest.

Probable cause to arrest defendant as a person wanted for murder in Los Angeles is adequately supported by evidence showing he bore a striking resemblance to the picture on the police bulletin (Cf. People v. Daniels, 223 Cal.App.2d 441, 445, 35 Cal.Rptr. 890; People v. Wiest, 205 Cal.App.2d 43, 45, 22 Cal.Rptr. 846; People v. Jackson, 183 Cal.App.2d 562, 568, 6 Cal.Rptr. 884); was in Los Angeles at the time the murder was committed; could not supply positive identification that he was John Joseph Wilson; and, after having consented to the search of his premises by the officer, whom he knew was trying to establish his connection with a murder charge, withdrew his consent when the officer located the bag, thus affording the inference that its contents might connect him with the murder.

The fact that defendant refused to permit a search of the bag after previously having consented to a search of the premises, under the circumstances heretofore noted, properly might be considered in determining whether there was probable cause for his arrest. (People v. Kendall, 212 Cal.App.2d 472, 477, 28 Cal.Rptr. 53.) The situation here is distinguishable from that where a defendant refuses in the first instance to consent to a...

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  • People v. Webb
    • United States
    • California Court of Appeals Court of Appeals
    • 5 Julio 1966
    ...and ensuing seizure "made at the scene of the arrest." (Emphasis added; p. 309, 49 Cal.Rptr. p. 506). Similarly, in People v. Robertson, 240 A.C.A. 100, 49 Cal.Rptr. 345, the later opening at the police station of a locked bag seized at the defendant's apartment when he was arrested was hel......
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    ...234 Cal.App.2d 136, 150--151--152, 44 Cal.Rptr. 165; People v. Lopez, 196 Cal.App.2d 651, 654, 16 Cal.Rptr. 728; People v. Robertson, 240 Cal.App.2d 99, 49 Cal.Rptr. 345; Galena v. Municipal Court, 237 Cal.App.2d 581, 589, 47 Cal.Rptr. 88; People v. Williams, 174 Cal.App.2d 175, 344 P.2d In......
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    ...crime, return them to the prisoner on his release, or preserve them for use as evidence at the time of trial. (People v. Robertson, 240 Cal.App.2d 99, 105-106 (49 Cal.Rptr. 345).) During their period of police custody an arrested person's personal effects, like his person itself, are subjec......
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