People v. Robinson

• Citation: 41 Cal.App.3d 658,116 Cal.Rptr. 455
• Decision Date: 10 September 1974
• Docket Number: Cr. 11434
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. George Anthony ROBINSON, Defendant and Appellant.

Page 455

116 Cal.Rptr. 455

41 Cal.App.3d 658

PEOPLE of the State of California, Plaintiff and Respondent, v. George Anthony ROBINSON, Defendant and Appellant.

Cr. 11434.

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

Sept. 10, 1974.

Warren E. George, Jr., Goodsill, Anderson & Quinn, San Francisco, for appellant (by appointment of the Court of Appeal).

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen.--Crim. Div., William E. James, Asst. Atty. Gen.--Appeals Section, Gloria F. DeHart, James M. Lee, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from the judgment upon a conviction of murder in the first degree (Pen.Code, § 187). He contends that each of four separate searches were illegal as violative of the Fourth Amendment and that the trial court committed prejudicial error in its instructions with respect to felony murder. We find these contentions to be without merit and hence the judgment must be affirmed.

Background Facts

On Sunday, March 12, 1972, ¹ a body was found on a road in Solano County. There were numerous tire tracks running to and over the body. Next to the body on the side of a dirt mound there was a tire track with the lettering 'LTT.' An autopsy disclosed three bullet wounds and the cause of death was determined to be multiple wounds with hemorrhage. Two bullets were removed from the body and their caliber determined to be .32. The next morning, March 13, the deceased was identified as Richard Dewey. Dewey was a friend of a Mrs. McJoy and he would usually visit her on weekends. He did not visit her on the weekend of March 11--12.

Defendant lived at the home of Mrs. McJoy. On Saturday night, March 11, defendant left the McJoy home and did not return until 6:30 or 7 a.m. the next morning.

Preliminary Statement

Defendant claims that evidence obtained in the course of four searches which he alleges were unconstitutional was erroneously admitted at the trial. Defendant has attacked the validity of these searches pursuant to a motion made as provided in Penal Code section 1538.5. ² In considering the validity of the searches we must consider the evidence adduced at the hearing of this motion. (People v. Gibbs, 16 Cal.App.3d 758, 761, 94 Cal.Rptr. 458; People v. Superior Court (Mahle), 3 Cal.App.3d 476, 482, fn. 3, 83 Cal.Rptr. 771; Thompson v. Superior Court, 262 Cal.App.2d 98, 103, 68 Cal.Rptr. 530.) Accordingly, the facts we set out in connection with our discussion of these searches are those adduced at the section 1538.5 hearing.

The First Search

Sergeant Gaston of the Sacramento Police Department testified he went to the home of Mrs. McJoy in Sacramento because he received information from Sergeant Lundblad of the Solano County Sheriff's office 'that Mrs. McJoy had some possible information, possible murder weapon in this matter.' Gaston knew that there had been a murder and had been informed that the victim had visited Mrs. McJoy's home and that they were friends. He also had been informed that the victim had been shot with a .32 caliber weapon.

When Gaston arrived at the McJoy residence he asked Mrs. McJoy if she had mentioned a gun to Sergeant Lundblad and she indicated she had. Gaston asked her to show him the gun. She went to a box outside on her front porch, removed the cover and pulled out a coat. Mrs. McJoy handed Gaston the coat and said 'The gun is in the pocket.' She told him she had 'touched' the gun and that she had 'found it.' Gaston did not know to whom the coat belonged but felt that it did not belong to Mrs. McJoy. After Mrs. McJoy handed the coat to Gaston she told him the coat belonged to defendant. Mrs. McJoy told Gaston she was putting defendant's belongings out on the porch because he had promised to pay her for staying at her house and had not done so. She did not want him staying there any longer so she moved his things onto the porch for him to pick up when he came.

Gaston could feel a heavy object in the coat pocket. Based on his previous experience it seemed to him that the object had the same weight as a gun. He removed the gun carefully trying not to destroy any possible fingerprints. He observed that the gun was a .32 caliber weapon. Gaston put the gun back into the coat pocket and took the coat back with him to the police department. At the police station Gaston removed the gun from the coat and upon checking it he found that it contained four spent casings. Gaston then proceeded to search the pockets of the coat for inventory purposes. This search revealed a number of personal items, and included two sets of keys. Gaston, at no time, had a search warrant.

Sergeant Lundblad subsequently checked the two sets of keys found in the coat pocket. These keys fit the post office box of the victim, his place of employment, a lock to his tool box, and one key on each of the rings fit the front door of the victim's apartment.

In the absence of a warrant the burden is on the People to justify the search. (Guidi v. Superior Court, 10 Cal.3d 1, 15, fn. 15,109 Cal.Rptr. 684, 513 P.2d 908; People v. Gale, 9 Cal.3d 788, 795, 108 Cal.Rptr. 852, 511 P.2d 1204; People v. Superior Court (Simon),7 Cal.3d 186, 192, 101 Cal.Rptr. 837, 496 P.2d 1205; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.) However, in determining the reasonableness of police conduct as restricted by the Fourth Amendment 'There is no exact formula . . .' and 'Each case must be decided on its own facts and circumstances (citations)--and on the total atmosphere of the case.' (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580.) It should also be noted that exclusionary rule was developed to deter lawless enforcement of the law and the invasion of an individual's privacy by the police without the obtaining of a search warrant. (Linkletter v. Walker, 381 U.S. 618, 636--637, 85 S.Ct. 1731, 14 L.Ed.2d 601; People v. Cahan, 44 Cal.2d 434, 447--449, 282 P.2d 905.)

We have concluded that under the totality of the circumstances the police acted reasonably in searching the coat in question and in seizing it and its contents. We first observe that defendant's right of privacy was originally invaded by Mrs. McJoy. It was she and not the police who removed defendant's belongings to the front porch and it was Mrs. McJoy who first discovered and observed the gun. At that time she was not acting as an agent of the police. The police did not go of their own volition to the McJoy home but were summoned there by Mrs. McJoy after she had discovered the gun.

The protection of the Fourth Amendment against unreasonable searches and seizures applies only to governmental action and not to evidence obtained by a private person not employed by or associated with a governmental unit or agency. (Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048; People v. Superior Court (York), 3 Cal.App.3d 648, 659, 83 Cal.Rptr. 732; People v. Garber, 275 Cal.App.2d 119, 126, 80 Cal.Rptr. 214 (cert. den. 402 U.S. 981, 91 S.Ct. 1643, 29 L.Ed.2d 146); People v. Katzman, 258 Cal.App.2d 777, 786, 66 Cal.Rptr. 319.)

We observe, moreover, that the search and seizure may be upheld on the basis of Mrs. McJoy's consent. The applicable rule is that a search is not unreasonable when made with the consent of a third party whom the police reasonably and in good faith believe to have authority to consent. (People v. Carr, 8 Cal.3d 287, 298, 104 Cal.Rptr. 705, 502 P.2d 513; People v. McGrew, 1 Cal.3d 404, 412, 82 Cal.Rptr. 473, 462 P.2d 1 (cert. den. 398 U.S. 909, 90 S.Ct. 1689, 26 L.Ed.2d 67); People v. Hill, 69 Cal.2d 550, 554--555, 72 Cal.Rptr. 641, 446 P.2d 521 (cert. granted 396 U.S. 818, 90 S.Ct. 112, 24 L.Ed.2d 68, aff'd. 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484); De Conti v. Superior Court, 18 Cal.App.3d 907, 910, 96 Cal.Rptr. 287; People v. Superior Court (York), supra, 3 Cal.App.3d 648, 654, 83 Cal.Rptr. 732.)

The good faith of Sergeant Gaston is not questioned. The issue is whether Gaston could reasonably believe that Mrs. McJoy had the authority to consent to a search of defendant's coat. We have concluded that under the circumstances of this case Gaston could reasonably believe that Mrs. McJoy had the authority to permit him to search the coat for a gun she had previously observed in the coat. When Mrs. McJoy handed Gaston the coat which she procured from a box on her front porch she told Gaston that she had put defendant's belongings on the porch because he had not paid her for staying at her home as he had promised.

In People v. Superior Court (York), supra, 3 Cal.App.3d 648, 83 Cal.Rptr. 732, the landlord of a furnished apartment told the police that tenants of the apartment were being evicted for nonpayment of rent and that while the furniture was being moved out she observed what appeared to be a bowl of marijuana. The landlord invited the police to the premises to 'take a look.' The police, acting on this invitation, entered the apartment where they observed a bowl containing plastic bags of a material that appeared to be marijuana. The appellate court, in annulling an order suppressing the evidence, stated: 'It is our view that at least for purposes of the Fourth Amendment a landlord who has evicted his tenant for nonpayment of rent has the authority to consent to an entry by the police into the premises in order to seize contraband discovered by the landlord in the course of the eviction.' (At p. 657, 83 Cal.Rptr. at p. 737.) (See People v. Raine, 250 Cal.App.2d 517, 521, 58 Cal.Rptr. 753.)

In such a situation the police are not called upon to determine whether the landlord acted legally in taking the defendant's private property. (People v. Superior Court (York), supra, 3 Cal.App.3d 648, 658, 660, 83 Cal.Rptr. 732; De Conti v. Superior Court, supra, 18 Cal.App.3d 907, 910, 96 Cal.Rptr. 287; People v. Jackson, 14 Cal.App.3d 57, 68, 92 Cal.Rptr. 91.) As observed in Jackson, ...