People v. Shepard
| Decision Date | 05 February 1963 |
| Docket Number | Cr. 1841 |
| Citation | 212 Cal.App.2d 697,28 Cal.Rptr. 297 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Donney SHEPARD, Jr., Defendant and Appellant. |
Carstens, Todd, Robinson & Fry, by Wm. L. Todd, Jr., San Diego, for defendant and respondent.
Stanley Mosk, Atty. Gen., Wm. E. James, Asst. Atty. Gen., George W. Kell, Deputy Atty. Gen., for plaintiff and appellant.
The defendant and appellant, Donney Shepard, Jr., appealed from a judgment upon the verdict of a jury finding him guilty of the crime of possessing marijuana. Probation was granted upon conditions, and this appeal was taken.
Appellant's arrest grew out of an occurrence on November 26, 1961. Apparently a woman by the name of Helen Moore was driving an automobile owned by appellant, while appellant was driving her automobile. A police officer stopped Miss Moore on account of bright headlights and during the conversation she admitted that she was on probation for a narcotics violation. The officer thereupon asked permission to look through the car, which was granted. On opening the glove compartment the officer found a sack containing marijuana. At about that time the appellant, who had returned to look for Miss Moore when she did not arrive at the agreed destination, approached the officer and Miss Moore and inquired as to what was taking place. He told the officer that the automobile driven by Miss Moore was his property, whereupon the officer placed him under arrest.
He was taken to jail and his clothing was thoroughly searched. Appellant is a sailor and was at the time stationed at Miramar Air Station in San Diego County. The police officers went to Miramar, obtained the permission of the authorities in charge and made a search of two lockers in which appellant stored his clothes. Marijuana was found in the lockers and in the pockets of some of the clothes. It was introduced in evidence over the objection of appellant. His conviction followed.
Appellant urges as grounds for reversal two main contentions. First, that the evidence of marijuana was obtained by an unlawful search of his lockers at Miramar and that the court erred in admitting the marijuana in evidence; and second, that the prosecuting attorney was guilty of misconduct in giving to the court two citations in the absence of appellant and his counsel.
Counsel have presented lengthy arguments relative to the right of an enlisted man to be protected against unlawful searches and seizures upon government property. An examination of the authorities is convincing that the rules relative to the inadmissibility of evidence unlawfully obtained are all based upon the proposition that the search in question must be reasonable. In People v. Dillard, 168 Cal.App.2d 158, 164, 335 P.2d 702, 705, it is said,
In United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 432, 94 L.Ed. 653, it is stated,
'It is unreasonable searches that are prohibited by the Fourth Amendment. (Cita.) It was recognized by the framers of the Constitution that there were reasonable searches for which no warrant was required. The right of the
This rule is recognized in Mapp v. Ohio, 367 U.S. 643; 81 S.Ct. 1684, 6 L.Ed.2d 1081, relied upon by the appellant.
In order to justify a search and seizure there must exist reasonable grounds to justify the officer in making such search. (People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513.) It was stated in People v. Heim, 196 Cal.App.2d 1, 5, 16 Cal.Rptr. 277, 279:
'* * * The determination of the admissibility of evidence, when the question of reasonableness or legality of an arrest and search or seizure arises, depends on whether such facts existed that would lead an ordinarily prudent man to have reason to believe or entertain an honest and strong suspicion that the person is guilty.'
Turning then to the facts actually involved in this case, it is to be noted that the appellant had admitted he was the owner of the car in which marijuana had been discovered. It is true that he denied knowledge of the presence of marijuana, or of how it came to be in the glove compartment of his car. However, Miss Moore also denied that she knew anything about the matter. She denied that she had put the marijuana in the car. Certainly it cannot be successfully contended that because an accused person denies his guilt, further procedure by the officers is unlawful. In this situation the officers concluded that it was advisable to search the belongings of the appellant, if possible, to ascertain whether there was further evidence that he used or possessed marijuana. Of course the officers had no right to make a search upon a military reservation without permission. It appears from the evidence that Major Harrol Kiser, U. S. Marine Corps, had the authority delegated to him by the Commandant of the Miramar Air Station to grant permission to make the search. Upon being informed that the appellant had been arrested and charged with having marijuana in his possession, Major Kiser granted the authority to make a search of the lockers and instructed a security officer to conduct a search with the police officers. The resulting search revealed the marijuana, which was introduced in evidence.
Appellant contends that by reason of the regulations in the Manual of Courts Martial an unlawful search is prohibited and evidence obtained thereby must be excluded. That manual provides, among other things,
'The following searches are among those which are lawful: * * *
'A search under circumstances demanding immediate action to prevent the removal or disposal of property believed on reasonable grounds to be criminal goods.'
It further provides,
'A search of property * * * which is located within a...
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People v. Baker
...to the locker which he rented. (See, United States v. Small (D.C.Mass.1969), 297 F.Supp. 582, 584-585. Cf. People v. Shepard (1963) 212 Cal.App.2d 697, 700-701, 28 Cal.Rptr. 297.) This protection also covered the handbag which he stored in that locker. (See, United States v. Brown (D.C., N.......
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People v. Superior Court
...decided in 1963). (See Bielicki v. Superior Court, supra, 57 Cal.2d at p. 607, 21 Cal.Rptr. 552, 371 P.2d 288; People v. Shepard (1963) 212 Cal. App.2d 697, 701, 28 Cal.Rptr. 297; People v. Hanson (1961) 197 Cal.App.2d 658, 665, 17 Cal.Rptr. 334.) None of those California cases concerned th......
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People v. Kellett
...23 L.Ed.2d 685.) Under such circumstances, it is the 'reasonableness' of the search which is crucial (see People v. Shepard (1963), 212 Cal.App.2d 697, 699, 28 Cal.Rptr. 297), and this can be decided only in the concrete factual context of the individual case. (Sibron v. New York (1968), 39......
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