People v. Roth

• Decision Date: 23 April 1968
• Docket Number: Cr. 14193
• Citation: 261 Cal.App.2d 430,68 Cal.Rptr. 49
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Carl Robbin ROTH, Defendant and Respondent.

Page 49

68 Cal.Rptr. 49

261 Cal.App.2d 430

The PEOPLE of the State of California, Plaintiff and Appellant, v. Carl Robbin ROTH, Defendant and Respondent.

Cr. 14193.

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

April 23, 1968.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for appellant.

Harry C. Murphy, San Luis Obispo, for respondent.

LILLIE, Associate Justice.

Defendant was charged with possession of marijuana (§ 11530, Health & Saf. Code). Under section 995, Penal Code, he moved to dismiss the information. The People appel from order granting defendant's motion and setting aside the information.

The following is a summary of the testimony taken at the preliminary hearing and considered by the superior court in making the order.

On July 25, 1967, around 9:45 a.m., Officer Britton, California Highway Patrol, was stopped by a passing motorist who told him that a Volkswagen had rolled over; 'almost before the dust was settled,' he arrived at the scene on Highway 101 near San Luis Obispo. Five minutes later Officer Lee arrived to assist him. In the number one land northbound near another vehicle was a Volkswagen resting on its wheels, facing west; three persons had been thrown from the vehicle--a baby, a woman lying on the pavement and defendant who was up but in quite a bit of pain. Officer Britton took certain registration information from the Volkswagen and a quick glance to see its position; the contents 'were all messed up inside' and 'there was quite a lot of personal belongings.' He watched the vehicle and saw no one enter it. The Volkswagen was registered to Robert Lund in Lakewood. All occupants were removed to an ambulance.

Officer Lee, California Highway Patrol, saw the ambulance remove the injured occupants and volunteered to diagram the accident, store the Volkswagen and make the storage report on the vehicle. The contents of the vehicle were 'messed up inside, ruffled.' He made a diagram of the accident and measured the distances, then instructed a tow truck operator to hook up the Volkswagen and take it to his shop; Officer Lee followed behind it to Jim's Body Shop. The vehicle was not out of his sight and he saw no one place anything in it. When the tow truck reached its destination, Officer Lee began an inventory filling out official Form 180--inventory and storage report. The contents of the Volkswagen had been 'bounced around a great deal and roughed up'; one by one he sorted out the items in the car and listed them on the report--suitcase containing miscellaneous clothing, wrist watch case, cloth coat, brown suede coat, red wallet with miscellaneous papers, empty leather toilet case, baby blankets, Norelco shaver, long playing record, books, car bed, stroller frame, plastic laundry bucket, various toilet articles, etc. In the course of the inventory Officer Lee removed a man's dark coat lying loosely on the back seat of the Volkswagen. As he picked it up the coat felt 'heavy on one side' so he reached in one of the pockets and found a black wallet containing defendant's driver's license on which was his name, San Francisco address, and photograph, and a quantity of money. Then he looked through the coat for money and found in the right top pocket a loose one-dollar bill, in the front pocket a passport bearing defendant's name and photograph and in the left inside pocket of the coat a pouch 'similar to one that tobacco might be carried in.' As to the contents of the pouch, the officer testified, 'I didn't know what it was at the time, whether it was money--'; he opened it and found a green leafy substance that appeared to be marijuana. Also in the coat were a brush and two pens. Officer Lee testified that no one requested him to search the vehicle or search it for marijuana, and he was not looking for narcotics but was merely inventorying the contents of the vehicle in compliance with the 'common practice with the Highway Patrol when storing a vehicle that has been in an accident to make an inventory of the contents on the Form 180.'

It was stipulated that the report of Agent Kvick, State Bureau of Narcotic Enforcement, which revealed that the contents of the pouch had been analyzed and found to be marijuana, could be used in place of the agent's testimony.

The superior court granted defendant's motion on two grounds: (1) 'this is a matter in which you ought to get a search warrant,' citing People v. Burke, 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67 and (2) 'there's no connection with defendant and the evidence which was seized'; and directed several personal comments to defendant. ¹

It is our view that the superior court erred in setting aside the information. First, the discovery of the contraband was not the result of a search but of a routine measure taken by Officer Lee in the performance of his official duty to protect the Volkswagen and its contents lawfully in the custody of the California Highway Patrol. Second, this is not a situation in which a search warrant should have been obtained as suggested by the superior court; there was neither reason nor necessity for Officer Lee to obtain a search warrant. He had no reason to believe contraband was in the vehicle and was not looking for narcotics; no one requested him to make a search and he was not conducting one; he did not suspect any occupant of the Volkswagen of having committed a crime and no one had been arrested. Finally, if the protective measure of sorting out the contents of the Volkswagen lawfully in the custody of the California Highway Patrol and inventorying the same for safekeeping is to be considered a search, the reason for and nature of the custody and the circumstances surrounding the entry of the vehicle made the search reasonable.

The record establishes that the Volkswagen had to be removed from the highway for two reasons--first, the accident, in which the vehicle most likely rolled over several times, left it standing in such a position in the number one lane of a heavily traveled highway as to obstruct the normal movement of traffic (§ 22651(b), Veh.Code) ² and create a hazard; and second, those in charge of the vehicle, by reason of personal injuries, had become incapacitated and unable to provide for its custody or removal (§ 22651(g), Veh.Code). ³ Moreover, our Supreme Court has recognized the right of the police to take custody of a vehicle blocking the highway and creating a danger to motorists. (People v. Grubb, 63 Cal.2d 614, 619, 47 Cal.Rptr. 772, 408 P.2d 100; People v. Webb, 66 Cal.2d 107, 125, 56 Cal.Rptr. 902, 424 P.2d 342; PEOPLE V. WILLIAMS, 67 CAL.2D ---, ---, 60 CAL.RPTR. 472, 430 P.2D 30.)^A Thus, Officer Lee had the right to and did remove the Volkswagen from the highway to a place of safety for the purpose of placing it in storage (§ 22850, Veh.Code.) ⁴

Further, the record establishes that numerous articles of a personal nature and of obvious value to the owners, having been bounced around as the result of the accident, were left exposed and lying in loose disorder inside the Volkswagen. Thus, before storing the vehicle, for his own protection as well as for the protection of the owners and the garageman, and for the safekeeping of the property Officer Lee sorted out the contents and listed each article on an official inventory form. Under the circumstances it was a normal and reasonable act for the officer, undoubtedly an involuntary bailee of the property and responsible for the vehicle and its contents (§§ 1813, 1815, 1816, 1817, Civ.Code; People v. Gonzales, 182 Cal.App.2d 276, 279, 5 Cal.Rptr. 920), to enter the Volkswagen, list the items and provide safe storage for them until the owners were able to take charge. (Cooper v. State of California, 386 U.S. 58, 61--62, 87 S.Ct. 788, 17 L.Ed.2d 730; PEOPLE V. HARRIS, 256 CAL.APP.2D ---, ---, 63 CAL.RPTR. 849.)^B Too, this is the 'common practice with the Highway Patrol in storing a vehicle that has been in an accident to make an inventory of the contents in the Form 180.' Having found in one pocket a billfold containing a driver's license and a quantity of money, and in another a loose one-dollar bill, it was only reasonable for the officer to look through the coat and its contents to be sure he had not overlooked other valuables; when he discovered the pouch he 'didn't know what it was at the time, whether it was money,' and opened it. Had he not listed the valuables in the coat, it is not inconceivable that later the owner would claim that he left a great sum of money or other item of value in his coat which is missing. (People v. Posada, 198 Cal.App.2d 535, 539, 17 Cal.Rptr. 858.) It is readily apparent that Officer Lee was making no 'search' of the Volkswagen; he was not looking for narcotics; all he did was make an inventory of the contents that they could be stored in a place of safety; and in the course of his official duty he discovered the contraband.

That the discovery of the contraband was not the result of a search of the Volkswagen but of a measure taken to protect the car and its contents which were lawfully in the officer's custody finds support in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067, decided by the United States Supreme Court March 5, 1968. Harris' automobile had been traced leaving the site of a robbery; he was arrested as he entered it near his home. The police impounded the car as evidence and a crane was called to tow it. The windows were open and the car was unlocked and it had begun to rain. A regulation of the Metropolitan Police Department, District of Columbia, requires an officer who takes an impounded vehicle in charge to search it thoroughly and remove all valuables from it and attach to the vehicle a property tag listing certain information pursuant to this regulation. Without a warrant the arresting officer proceeded to the impound lot to search the vehicle, place a property tag on...