People v. Stewart

• Decision Date: 15 April 1966
• Docket Number: Cr. 5229
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Alfred James STEWART, Defendant and Appellant.

Page 630

50 Cal.Rptr. 630

241 Cal.App.2d 509

PEOPLE of the State of California, Plaintiff and Respondent, v. Alfred James STEWART, Defendant and Appellant.

Cr. 5229.

District Court of Appeal, First District,

Division 1, California.

April 15, 1966.

Hearing Denied June 8, 1966.

Garry Brennan, Crescent City, for appellant (under appointment of the District Court of Appeal).

Thomas C. Lynch, Atty. Gen. of California, Edward P. O'Brien, John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

Having been found guilty by a jury of possession of marijuana (in violation of Health & Saf. Code, § 11530), defendant appeals from the judgment of conviction entered upon this verdict. ¹ Defendant contends that the judgment should be reversed because (1) his arrest was unlawful and therefore the packet of marijuana cigarettes which the officers of the police and sheriff's departments discovered in the patrol car used to transport defendant to the sheriff's office following his arrest was erroneously admitted into evidence; (2) the trial court erred in admitting into evidence facts relating to a prior arrest of defendant; and (3) the jury was improperly instructed in several respects. We have concluded that defendant's first contention is meritorious and that therefore the judgment should be reversed.

Among the evidence introduced at defendant's trial was a packet of four marijuana cigarettes discovered by Deputy Sheriff Smith of the Del Norte County Sheriff's Office in the patrol car which was used to transport defendant to the sheriff's office following defendant's arrest on the evening of December 3, 1964. Defendant objected to the admission of this evidence on the basis that it was obtained by the officers incident to an unlawful arrest. The trial court, however, overruled defendant's objection, it having determined at the commencement of the trial that as a matter of law defendant's arrest was lawful. This determination was made at defendant's request and was based, with defendant's consent, upon the evidence adduced at the preliminary hearing. ² Accordingly, preliminary to our determination of the legality of defendant's arrest and the propriety of the trial court's order overruling defendant's objection to the admission into evidence of the packet of marijuana cigarettes found in the patrol car, we set forth the evidence adduced at the preliminary hearing concerning the circumstances surrounding defendant's arrest and the discovery by the officers of the incriminating evidence.

Sergeant McMullen of the Crescent City Police Department testified that on the evening of December 3, 1964 he was at the Antler's Cafe in Crescent City; that at approximately 8 p.m. he was approached by Bill Burns, who asked McMullen to contact Deputy Sheriff Black of the Del Norte County Sheriff's Office; that about a half hour later McMullen was approached by Mike Chambers, who told McMullen that he had something for Black and that he wanted to contact Black; and that McMullen directed Chambers to contact Deputy Sheriff Grenbemer. Grenbemer testified that at approximately 8:50 p.m. on the evening of December 3, 1964 he was contacted by McMullen; that he then proceeded to the Antler's parking lot, where he was approached by Chambers, who gave Grenbemer a round white object; that Chambers stated to Grenbemer that Bill Burns, who had given Chambers this object in the Antler's, had told Chambers that 'Sparky' Stewart had sold this object to Burns for $1 and had asked Chambers to contact Black immediately; ³ that Grenbemer examined the object and concluded that it contained marijuana; that on the basis of the information imparted to Grenbemer by Chambers and the object which Chambers gave Grenbemer, Grenbemer decided to arrest defendant; that, accordingly, when defendant and his female companion left the Antler's at approximately 11 p.m., they were stopped by Grenbemer, who was accompanied at the time by Smith and Bach; that defendant and his companion were placed under arrest by Bach and Smith, respectively, were handcuffed, and were placed in the rear seat of Sheriff's Patrol Unit 7, defendant being placed on the left side behind the driver and his companion being placed on the right side; and that, accompanied by Grenbemer, Bach then drove Patrol Unit 7 to the sheriff's office where defendant and his companion were removed from the car, booked, and jailed.

Both Smith and Bach corroborated Grenbemer's testimony as to the manner in which defendant was arrested, handcuffed, and transported to the sheriff's office. In addition, they testified that after defendant and his companion had been removed from Patrol Unit 7 at the sheriff's office, the two officers commenced a search of this patrol car; and that during this search Smith discovered a packet of four marijuana cigarettes on the floor of the car underneath the driver's seat approximately five inches from the back edge. Smith testified that he and Grenbemer had thoroughly cleaned out Patrol Unit 7 prior to defendant's arrest and that either he or Grenbemer had been present with the car from the time it was cleaned until the time of defendant's arrest. In addition, Bach testified that after defendant had been placed in the patrol car Bach hear defendant say to his companion, "I hope to God they don't find it." Grenbemer also testified that while the patrol car was en route to the sheriff's office he observed no movements on the part of defendant's companion, but that upon arrival at the sheriff's office he did hear defendant say to his companion, "Don't say anything." Smith and Bach both testified that before the package containing the cigarettes was removed from the patrol car it was photographed by Smith, who then delivered it to Grenbemer. ⁴ Finally, Grenbemer testified that prior to December 3, 1964, although he knew Chambers, he had never received any information from either Chambers or Burns relating to any other offenses nor had he ever arrested anyone on the basis of any information received from Chambers or Burns.

Defendant's contention that his arrest was unlawful and that the marijuana cigarettes had been obtained as a result of this unlawful arrest is countered by the People's assertion that defendant's arrest was based upon probable cause and that, moreover, the discovery of the marijuana cigarettes by the officers need not be justified as incident to defendant's arrest because this evidence was not obtained as a result of a search of defendant. In People v. Schultz, 238 A.C.A. 925, 931, 48 Cal.Rptr. 328, 332, we reiterated the principles governing the legality of an arrest and incidental search and seizure as follows: 'In considering the propriety of the trial court's ruling upholding the arrest of defendant and the incident search and seizure, we note that a police officer may make an arrest without a warrant and conduct an incidental search where he has reasonable cause to believe that the accused has committed a felony. (§ 836 (Pen.Code); People v. Torres, 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 366 P.2d 823; People v. Cedeno, 218 Cal.App.2d 213, 218, 32 Cal.Rptr. 246.) Reasonable or probable cause is shown if a man of ordinary care and prudence would be led to believe and conscientiously entertain an honest and strong suspicion that the accused is guilty. (People v. Torres, supra, 56 Cal.2d p. 866, 17 Cal.Rptr. 495, 366 P.2d 823; People v. Cedeno, supra, 218 Cal.App.2d p. 219, 32 Cal.Rptr. 246.) Such reasonable cause to justify an arrest and search may be derived from the personal observations of the arresting officer or from information supplied by a reliable informant. (People v. Prewitt, 52 Cal.2d 330, 337, 341 P.2d 1; Willson v. Superior Court 46 Cal.2d 291, 294--295, 294 P.2d 36; People v. Cedeno, supra, 218 Cal.App.2d p. 219, 32 Cal.Rptr. 246.) Concerning the reliability of a particular informant, it is well established that where reliability cannot be predicated upon the police officer's previous acquaintance and dealings with the informant, it can nevertheless be established by the proven accuracy of the information given by the informant. Such substantiation may be supplied by corroborative facts known or discovered by the police officer. (People v. Cedeno, supra, p. 220, 32 Cal.Rptr. 246; People v. Bates, 163 Cal.App.2d 847, 852, 330 P.2d 102; People v. Prewitt, supra, 52 Cal.2d p. 337, 341 P.2d 1; Willson v. Superior Court, supra, 46 Cal.2d p. 295, 294 P.2d 36.)

Turning to the instant case in the light of these principles it should first be noted that Chambers was not shown to be a reliable informant; nor is it contended by the People that he was. It is claimed, however, that the accuracy of the information which he gave to Grenbemer was substantiated by corroborative facts. These are asserted to consist of the delivery by Chambers of the one-half portion of the cigarette to Grenbemer and Smith's testimony that defendant 'was in a staggering manner' as he left the Antler's shortly before his arrest. These contentions are without merit. With respect to the last-mentioned contention we note that neither Grenbemer nor Bach, who had also observed defendant walking to his car, testified that he was walking in a staggering manner. Although Smith did assist Grenbemer and Bach in the arrest of defendant and his companion after the officers had stopped defendant's car, there is nothing in the record to indicate that Smith had informed Grenbemer or Bach that Smith had observed defendant walking in a staggering manner or that any of the officers considered or concluded that defendant's manner of walking had any bearing on whether or not defendant had sold Burns the marijuana cigarette. While it was reasonable for Smith to assume that since defendant came out of a tavern he was staggering because he had been drinking, there is nothing in the record to show that a person who uses marijuana is caused to walk in a staggering...