People v. Stewart

• Decision Date: 15 February 1961
• Docket Number: Cr. 7340
• Citation: People v. Stewart, 10 Cal.Rptr. 879, 189 Cal.App.2d 176 (Cal. App. 1961)
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Philip Lee STEWART, Defendant and Appellant.
• Court: California Court of Appeals

Page 879

10 Cal.Rptr. 879

189 Cal.App.2d 176

PEOPLE of the State of California, Plaintiff and Respondent, v. Philip Lee STEWART, Defendant and Appellant.

Cr. 7340.

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

Feb. 15, 1961.

Rehearing Denied March 6, 1961.

Hearing Denied April 12, 1961.

Edward J. Skelly, North Hollywood, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

McMURRAY, Justice pro tem.

After plea of not guilty to an information charging defendant with one count of possessing a narcotic, marijuana, in violation of section 11530 of the Health and Safety Code, a felony, the defendant waived jury trial and stipulated that the cause be submitted on the stestimony contained in the transcript of the proceedings had at the preliminary hearing subject to the trial court's rulings. Objection was made as to the admissibility of the physical evidence on the ground that it was the result of an unlawful search and seizure. This objection was overruled and the trial court found the defendant guilty as charged and granted him probation on various conditions, one of which being that he should spend the first 60 days of the probationary period in the county jail. It is from this judgment that the defendant here appeals.

The evidence shows that appellant was in a grocery-liquor store in Burbank on the evening of December 17, 1959, when his officers on routine patrol in a police car, officers on routine patrol in a police car, which was proceeding at from 5 to 10 miles per hour. Appellant was then in the grocery part of the store, and the officers were in their car opposite the store, across the street.

There was another young man in the store at the same time and the officers were alert because of a recent 'rash of 211's' that is, armed robberies, in the area. They did not know whether the appellant and the other young man in the store were together or not, but being on the alert because of the recent armed robberies, the officers turned the car around and pulled in front of the store. The appellant came out of the store, carrying a bottle of milk in a brown paper bag. He walked toward the police car and the corner of Kenwood and Burbank Boulevard when one of the officers called to him to stop, which he did.

This officer asked appellant where he lived and where he was going. The appellant answered that he lived in North Hollywood whence he had walked to Burbank and that he was going to Tim Kelly's where he was going to meet a Mr. Little and the three of them were going out. Tim Kelly was known to the questioning officer as a narcotic suspect, having surrendered himself to the officer about a month previously on a narcotic warrant.

While questioning the appellant, the officer, by radio, called the police department for a record check and was informed that there was a $48 traffic warrant with no restrictions outstanding against appellant at the Los Angeles Police Department. Upon receiving this information, appellant was formally placed under arrest at 8:15 p. m. In the routine search which followed this arrest five cigarettes were found in appellant's pockets, which he admitted were marijuana cigarettes. The officer admitted that if appellant had attempted to leave during the time of the questioning preceding the formal arrest, he would have been effectively detained. However, appellant made no such attempt.

The appellant at the trial objected to the admission of the evidence on the ground that the officers' receipt of the radio information was 'a hearsay ascertainment of the warrant'. On appeal, counsel argues that the best evidence rule, Code of Civil Procedure, section 1855, was violated by the respondent's failure to introduce the warrant itself into evidence to prove its existence.

'* * * There is, of course, nothing unreasonable in an officer's questioning persons outdoors at night.' People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531, 534, and cases there cited. In the instant case the fact of recent armed robberies certainly justified the officers in talking to appellant. When, in the course of that questioning, it transpired that appellant was on his way to visit Tim Kelly, a known narcotic suspect, it would not seem unreasonable for the officers to request, via car radio, a record check on the defendant. The information that there was an...