People v. Superior Court of Shasta County

• Decision Date: 18 June 1969
• Citation: 455 P.2d 146,78 Cal.Rptr. 210,71 Cal.2d 265
• Court: California Supreme Court
• Parties: , 455 P.2d 146 The PEOPLE, Petitioner, v. The SUPERIOR COURT OF SHASTA COUNTY, Respondent; Gary Wynn CASEBEER et al., Real Parties in Interest. Sac. 7840.

Page 210

78 Cal.Rptr. 210

71 Cal.2d 265, 455 P.2d 146

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF SHASTA COUNTY, Respondent Gary Wynn CASEBEER et al., Real Parties in Interest.

Sac. 7840.

Supreme Court of California In Bank.

June 18, 1969.

Jere E. Hurley, Jr., Redding, for real parties in interest.

SULLIVAN, Justice.

Defendants Gary Wynn Casebeer and Joy Marguerite Marsdin are charged by separate informations in the respondent court with transportation of marijuana (Health & Saf.Code, § 11531) and in an additional count with possession of marijuana (Health & Saf.Code, § 11530). Pursuant to Penal Code section 1538.5 each of said defendants moved to suppress certain evidence alleged to have been unlawfully seized and the respondent court granted their motions. The People then filed in the Court of Appeal, Third Appellate District their petition for a writ of prohibition and mandate restraining the enforcement and commanding the annulment of the lower court's order. (Pen.Code, § 1538.5 subd. o.) The petition was denied as to defendant Marsdin but granted as to defendant Casebeer, and as to the latter an alternative writ of prohibition and mandate was issued. The People appear to have conceded in the Court of Appeal that there is substantial evidence to support the trial court's determination that a search of defendant Marsdin's purse was unlawful. The Court of Appeal rendered its decision ordering the issuance of a peremptory writ of mandate directing the trial court to vacate its order suppressing evidence insofar as it related to certain marijuana and marijuana smoking equipment seized during the search of the automobile which defendant Casebeer was driving and in which defendant Marsdin was riding. Thereafter on Casebeer's petition we granted a hearing in this court.

On November 22, 1967, defendants Casebeer and Mrs. Marsdin, together with two companions, Darrell Leonard and Peter Michaud, were travelling through Shasta County in a Pontiac automobile owned by Leonard. The four were members of a musical group en route from Alaska to Texas. They were towing a rental trailer which contained their musical instruments, luggage and other personal belongings. Casebeer was driving the car, Michaud was in the right front seat and Leonard and Mrs. Marsdin were in the back seat, the latter apparently asleep.

About 3:30 p.m. Officer Tyrell of the California Highway Patrol observed the automobile going up a hill in the middle lane of a three-lane highway. He noticed that the right-hand rear-view mirror on the automobile was tilted downwards. Because the car was towing a trailer in the wrong lane (Veh.Code, § 21655, subd. (b) ¹ and was equipped with a defective rear-view mirror (Veh. Code, § 26709), ² the officer signalled defendant Casebeer to pull over to the side of the road. Casebeer complied and stopped on the shoulder of the highway behind the patrol car.

Officer Tyrell walked back to the Pontiac and asked Casebeer for his driver's license. Casebeer answered that he did not have a driver's license or any identification because his wallet had been stolen a short time before. The officer directed Casebeer to get out of the automobile and to proceed to the front of the patrol car. According to Casebeer, Officer Tyrell thereupon frisked him; according to the officer, he only questioned Casebeer. Casebeer produced a wallet he had been using as a substitute for the stolen one, and some bits of paper, but nothing which adequately identified him.

After ordering Casebeer to remain at the patrol car, Officer Tyrell returned to the Pontiac to question its other occupants. He asked them for identification and was apparently satisfied with the identification produced by Leonard and Michaud. Mrs. Marsdin, who had been asleep and was awakened when the vehicle stopped, produced a Canadian passport. She explained that her visa had been stolen but that she had a letter in her suitcase which would show that she was lawfully in the United States. The officer noticed that her speech 'was a little bit erratic' and thought that 'she was under the influence of something,' although he 'couldn't smell any alcohol.' He had her step out of the vehicle and proceed to the front of the patrol car. At the same time, he order Casebeer to return to the Pontiac and sit in the driver's seat. ³ The officer asked Mrs. Marsdin if she was under the care of a doctor; she replied that she was, and that an hour and a half previously, she had taken medication for a kidney infection.

At this point Mrs. Marsdin searched through her purse for further identification. As she did so the officer saw a gold cigarette case which he thought looked like a wallet. He asked her whether it was a wallet and according to the officer she replied, 'No, this is my tobacco case.' He asked her 'if she cared if I looked at it' and she replied in the negative and handed the case to him. According to Mrs. Marsdin, the officer took the cigarette case out of her purse, handed it to her and ordered her to open it, then took it from her and looked inside. In it, he found marijuana. He then placed her under arrest.

After arresting Mrs. Marsdin, Officer Tyrell directed her to sit in the back seat of the patrol car. He radioed for assistance and then questioned her. ⁴ Mrs. Marsdin stated that she had no knowledge of the marijuana in the cigarette case. She did not suggest that there was marijuana in the automobile. She may have stated that someone was 'out to get' her.

About 30 minutes later, three more highway patrol vehicles arrived at the scene. Officer Tyrell went back to the Pontiac and advised its three occupants that Mrs. Marsdin had been arrested and that he 'was going to check them.' One officer examined the license on the vehicle and radioed for information about it. Officer Tyrell and another officer ordered the men to get out of the car so they could be frisked. As he prepared to frisk Leonard, whom he had previously learned to be the owner of the car, Officer Tyrell asked him 'if he cared if I checked the vehicle and he stated no * * *.'

The officer then proceeded to check the Pontiac. Under the left-front-bucket seat, he found a package of cigarette papers and a small pasteboard matchbox containing 'a green-leafy substance' appearing to him to be, and later identified as, marijuana. Under the left portion of the dashboard and to the left of the steering wheel, he found a blue canvas bag containing numerous shoe shine articles. Among its contents were three plastic bags, each with a large amount of green-leafy substance, debris and seeds, a pipe and cigarette papers. The stem of the pipe was detached from the bowl; in the bowl itself were partially burned marijuana seeds. Finally, the officer found additional cigarette papers in the glove compartment. He then returned to the three male defendants standing near the patrol car, 'read them their rights' and placed them under arrest for possession of marijuana.

As already stated, defendants Casebeer and Mrs. Marsdin were charged by information with transportation and possession of marijuana. After a hearing on defendants' motion to suppress evidence, made pursuant to Penal Code section 1538.5, respondent court held that the prosecution had not sustained its burden of proving that Mrs. Marsdin voluntarily consented to the search of her cigarette case, ⁵ that consent by the owner Leonard to the search of his car could not extend to the luggage of Casebeer, and that since Mrs. Marsdin had not voluntarily consented to the search of her cigarette case, 'the search of the vehicle cannot be approved nor would the evidence found in such a search be admissible.'

The positions of the parties may be summarized as follows: The People concede that there is substantial evidence to support the trial court's finding that Mrs. Marsdin did not consent to the search of her cigarette case but contend that all of the evidence arising out of the search of the automobile was lawfully obtained. They argue that Leonard's consent to search his car authorized the opening of the matchbox under the front seat, that the discovery of marijuana therein constituted probable cause for the arrest of the occupants of the vehicle, and that the remainder of the search was properly incidental to such arrest. Defendants on the other hand contend that Leonard's consent to the search of his car was coerced and invalid as a matter of law, and that, even if the consent had been freely given, the seizure of the contraband in the car resulted from the admittedly unlawful search and arrest of Mrs. Marsdin and the evidence thus secured should be excluded as the 'fruit of the poisonous tree.' (See Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441) ⁶ In reply the People argue that Leonard's consent to the search of the car was an intervening independent act which severed or at least sufficiently attenuated the connection between the illegal search of Mrs. Marsdin and the search of the automobile to purge the primary taint of the unlawful action. (Wong Sun v. United States, Supra, 371 U.S. 471, 487, 488, 83 S.Ct. 407, 9 L.Ed.2d 441.) The crucial question emerging from this interchange is whether the contraband seized in the car was properly suppressed as evidence. (Pen.Code, § 1538.5.)

Taking up first the claim that Leonard's consent to the search of his car was involuntary as a matter of law, we observe that the circumstances under which it was given appear from the uncontradicted evidence to be highly coercive. The Pontiac which he owned and in which he had been riding, had been stopped by a highway patrol officer who ordered first Casebeer and then Mrs. Marsdin to get out of the vehicle and go with him to the patrol car. Casebeer was then sent back to the Pontiac and ordered to remain in the driver's seat. Mrs. Marsdin was detained in the patrol car. For approximately 30 minutes nothing further happened. Leonard and...