People v. Stout

Decision Date16 March 1967
Docket NumberCr. 10067
CourtCalifornia Supreme Court
Parties, 424 P.2d 704 The PEOPLE, Plaintiff and Respondent, v. James Edward STOUT and Katherine Frances Culp, Defendants and Appellants. In Bank

Edward L. Cragen and Carl Shapiro, San Francisco, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Edward P. O'Brien, Michael R. Marron and Derald E. Granberg, Deputy Attys. Gen., for plaintiff and respondent.

SULLIVAN, Associate Justice.

Defendants were charged in an information in six separate counts with possession of marijuana (Health & Saf.Code, § 11530), transportation of marijuana (Health & Saf.Code, § 11531), possession of forged checks (Pen.Code, § 475), receiving stolen property (Pen.Code, § 496), alteration of serial numbers on firearm (Pen.Code, § 12090) and conspiracy to possess marijuana and to possess forged checks (Pen.Code, § 182). As to each count other than the alteration of the firearm (count five) they were also charged with having been armed with a deadly weapon at the time of the commission of the offense. A jury found defendants guilty as charged on all six counts. The court sentenced defendant Stout to state prison for the term provided by law but suspended imposition of sentence upon defendant Culp and granted her probation. Defendants appeal from the judgments. 1

On January 6, 1964 Mrs. McMeen saw defendant Stout carrying a blue overnight bag and running towards a church under construction in San Jose. He hid the bag behind a dirt pile on the construction site. When Stout gave her no satisfactory explanation for his conduct, Mrs. McMeen telephoned the police. As she resumed watching defendant, who remained near the church, she saw an automobile driven by defendant Culp pull up and stop. Stout ran to the dirt pile, recovered the bag, threw it in the back of the automobile, and got in the front passenger seat. Just as he did so, San Jose Police Officer Ankenbauer drove up in a police car and Mrs. McMeen pointed out defendant Stout to him.

The officer approached the vehicle on Mrs. Culp's side and asked for her driver's license, which she handed to him. He then asked Stout what was in the blue bag. The latter replied that the bag belonged to defendant Culp who was 'having trouble' with her husband and that he, Stout, was 'just helping her out.' The officer then asked: 'Well, you wouldn't mind then if I take a look in the bag?' At that point he started walking to the rear of the car 'to get on the passenger's side so I could take a look at the bag.' When he got to the rear of the car, Mrs. Culp drove off in a burst of speed, leaving her driver's license in the officer's possession.

The officer gave chase in his patrol car and caught up with defendants when their automobile spun out of control and stalled as Mrs. Culp attempted a turn at high speed. When the officer walked up to the stalled vehicle, Stout alighted and ran off with the blue bag. The officer chased Stout, caught him and escorted him back to Mrs. Culp's vehicle. Stout thereupon threw the bag to Mrs. Culp, grabbed the officer by the arms, and held him until Mrs. Culp had driven away. Ankenbauer arrested Stout, placed him in the patrol car and returned to the construction site.

Defendant Culp drove a short distance to a service station where she was seen concealing the blue bag in some refuse at the rear of the premises. She then drove back to the vicinity of the church where she was placed under arrest. She refused to identify herself to a second officer who had arrived at the scene, but handed him her handbag upon his request. Identification was eventually made through the driver's license left in the hands of the first officer. Mrs. Culp refused to answer questions concerning the blue bag but the officers were able to locate it, nevertheless. It contained payroll checks which had been reported as stolen from a business firm, marijuana, narcotics paraphernalia and a loaded revolver with the serial number removed. When confronted with the bag Mrs. Culp admitted that it was hers, but stated that 'I don't know what is in it.'

At the police station the defendants were placed in separate interrogation rooms. Beyond identifying himself and his wallet, Stout refused to answer questions of a general nature asked of all arrestees, and demanded to see an attorney. Mrs. Culp also refused to answer general questions, other than to identify herself, until she saw an attorney. Testimony as to these events was presented before the jury but it did not include any accusations or incriminating questions directed to defendants at the police station.

A search of the vehicle driven by Mrs. Culp revealed registration certificates of other vehicles. One of the vehicles, registered in Stout's name, was located in the driveway of a home near the church which had been rented to Mrs. Culp and was occupied by her and Stout. The officers obtained a search warrant and thereafter searched the premises, finding other evidence incriminating both defendants in connection with the marijuana, forgery and stolen property violations.

At the trial Officer Ankenbauer testified on direct examination as to his arrival at the scene, his initial conversation with defendants and their sudden flight as already summarized by us. He was then asked what he did when the car sped away. At this point defendants' counsel requested permission to examine the witness on Voir dire 'in regard to the search' upon the authority of Gascon v. Superior Court (1959) 169 Cal.App.2d 356, 337 P.2d 201. In the ensuing examination outside the jury's presence, Ankenbauer, after repeating in essence the details already referred to, testified in substance that he wanted to look inside the bag and was in the course of going around to Stout's side of the car 'to continue the conversation' when defendants drove away. 2 On subsequent Voir dire examination by the prosecutor, the officer testified that he was going to the other side of the car to have a further conversation with Stout before doing anything and to ask for permission to look in the bag. 3 Defendants did not take the stand in their own behalf.

Defendants do not, and indeed could not successfully, question the sufficiency of the evidence to support their convictions. Initially they contend that the court erred in denying their motion to suppress the evidence consisting of the contents of the blue bag 4 on the ground that such evidence was the product of a threatened illegal search of their property and thus of an attempted violation of their constitutional rights. Defendants rely upon Badillo v. Superior Court (1956) 46 Cal.2d 269, 294 [424 P.2d 709] P.2d 23 and Gascon v. Superior Court, supra, 169 Cal.App.2d 356, 337 P.2d 201.

In Badillo narcotics agents, without a warrant and without reasonable cause to make an arrest, unlawfully broke into the defendant's home. The latter ran out the front door and in the course of his flight threw away a package of heroin which was thereupon recovered by one of the officers. In granting a writ of prohibition, we said: 'It clearly appears, however, that defendant's flight out the front door and attempted disposal of the evidence was the direct result of Officer Getchell's illegal entry, and accordingly, the evidence was obtained in violation of constitutional guarantees.' (46 Cal.2d at p. 273, 294 P.2d at p. 25.)

In Gascon officers accosted and questioned a person on a street. After receiving answers which could not have created a reasonable suspicion, the officers announced that they intended to conduct a search, whereupon the detained person fled. He was apprehended but not before he had thrown away a package containing a narcotic, the unlawful possession of which was charged against him. It was conceded that, prior to the flight, the officers lacked probable cause to arrest or search the accused. Holding that the case could not be distinguished in principle from Badillo, the court concluded that the accused 'was fleeing from the attempted illegal invasion of his constitutional rights (4th Amendment, U.S. Const., Cal.Const., art. I, § 19), and * * * he attempted to dispose of the evidence which the officers would have obtained had they been able to complete the threatened unlawful act. * * * (T)he evidence, being the product of the illegal acts of the officers, was illegally obtained.' (169 Cal.App.2d at p. 359, 337 P.2d at p. 202.)

The facts in the instant case do not disclose an actual completed invasion of constitutional rights as in Badillo. The question confronting us here is whether there was a threat of such an invasion capable of execution and sufficient to cause defendants' flight and disposal of the bag so that we must conclude, as the court did in Gascon, that the evidence eventually obtained was the product of an attempted illegal act of the officer.

In People v. Mickelson (1963) 59 Cal.2d 448, 450--451, 30 Cal.Rptr. 18, 20, 380 P.2d 658, 660, we said that 'we have consistently held that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning. * * * Should the investigation then reveal probable cause to make an arrest, the officer may arrest the suspect and conduct a reasonable incidental search.' (See also People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 95--96, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Lopez (1963) 60 Cal.2d 223, 241, 32 Cal.Rptr. 424, 384 P.2d 16.) Stout's suspicous conduct in the instant case fully justified the inquiries made by Officer Ankenbauer. However, unlike Gascon where the officers announced their intentions to search the defendant, Ankenbauer in the instant case merely voiced a request to look in the bag. There was no response from the suspects. At that point he started walking toward the...

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