People v. Thomsen

• Decision Date: 28 December 1965
• Docket Number: No. 158,158
• Citation: 48 Cal.Rptr. 455,239 Cal.App.2d 84
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Wayne THOMSEN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 455

48 Cal.Rptr. 455

239 Cal.App.2d 84

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Wayne THOMSEN, Defendant and Appellant.

No. 158.

District Court of Appeal, Fifth District, California.

Dec. 28, 1965.

Hearing Denied Feb. 23, 1966.

James S. Shepard, Fresno, under appointment by the District Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse, David L. Kelly, Deputy Attys. Gen., Sacramento, for respondent.

STONE, Justice.

Defendant appeals from a judgment entered by the court following a trial without a jury, of violation of section 211a of the Penal Code, armed robbery, count one, and violation of section 182 of the Penal Code, conspiracy to commit armed robbery, count two.

The San Francisco police were told by an informer, telephoning from British Columbia, that defendant, who could be located at the Del Webb Motel, San Francisco, had committed or was about to commit an armed robbery. The call came during the night, and the police placed defendant's room under surveillance until 8:30 a. m. when two inspectors had a maid open the door and admit them. They placed defendant under arrest, searched him and found a car rental contract with Hertz Fresno agency, and a key to a Mercury automobile. They used the key to open the automobile, which bore a British Columbia license plate and was parked at the motel, and found a box of ammunition. Because defendant gave varying accounts of his recent activities and the car rental agreement was for a Thunderbird automobile while defendant was driving a Mercury, the San Francisco police called the Fresno police to see if defendant was wanted.

In the meantime, Fresno police learned that two persons apprehended in the act of robbing a jewelry store in downtown Fresno, apparently had an accomplice. One of the robbers told the police that later on when the time was right he would tell them who it was. A book of matches found in the possession of one of the robbers, advertised a Fresno motel. By checking there, the police obtained a description of defendant and his Mercury automobile. In a suitcase left in the room occupied by defendant and delivered to the police by the motel manager, the police found a shirt with the name 'J. Thomsen' on it and doubted that defendant's true name was 'R. Passage' as he had signed the registration card.

Consequently, when the San Francisco police called, the Fresno police told them a man answering defendant's description and driving a Mercury automobile bearing a British Columbia license was suspected of having taken part in a jewelry store robbery. At the request of Fresno police, the San Francisco police booked defendant at the San Francisco Jail as 'en route' to Fresno. They again searched defendant and in a pocket of his clothing found a diagram of a floor plan on the back of letter paper. When the Fresno officers arrived a few hours later they were given the automobile key, the box of ammunition, the car rental contract, and the diagram. The officers first took defendant to the Del Webb Motel and with defendant's consent paid his bill with his money, picked up his luggage and transported him and his belongings to Fresno.

During the return trip the policemen asked defendant some questions about his being in Fresno, his activities while there, and about his companions who were arrested in the act of robbing the jewelry store. He told the police he had abandoned his traveling companions when he learned they were drug addicts. Upon arrival in Fresno, defendant was taken to police headquarters and questioned by two deputy district attorneys before being 'booked' at the county jail.

At the time the Fresno police took defendant to the Del Webb Motel enroute to Fresno, they obtained a sack of defendant's clothing from a bellman. Some six days after defendant's arrest and five days after his arraignment, a Fresno police officer searched defendant's clothing and found a Vancouver, British Columbia, motor hotel letterhead upon which was written: 'Fresno. Main drag. Thistlewaite & Swift.' The name of the robbed jewelry store was Thistlethwaite & Shields, located on the downtown mall. Although defendant was represented by counsel, the officer interrogated him about the note without securing counsel's consent.

All of the People's evidence, both physical and oral, was received subject to defendant's continuing objection upon the ground his arrest by San Francisco police was unlawful and the evidence used against him stemmed from that unlawful arrest. At the conclusion of the People's case, the court ruled that the original arrest by San Francisco police and the search pursuant thereto were illegal, but that the subsequent arrest at the request of Fresno police was legal. Although the court made no order striking evidence obtained as a result of the unlawful arrest, we must presume that since the case was tried without a jury the court did not consider the evidence it ruled was illegally obtained.

Defendant argues that the court erred in holding valid the second arrest at the request of Fresno police, since it resulted from the copy of the Hertz Car Rental Agreement admittedly seized illegally by the San Francisco police. However, the Fresno police, by an independent investigation, uncovered evidence that pointed to defendant as an accomplice. Not only did Jackson, one of the robbers, tell the Fresno police a third person was involved, and hand them the keys to the Mercury which he said the third person would pick up, but a book of matches found on Jackson's person directed the officers to a motel. There they learned that three persons whose descriptions fitted the two robbers and defendant, had occupied adjoining rooms, that a man with a Mercury bearing a British Columbia license registered on behalf of them and signed the card 'R. Passage.' The police learned that all three checked out the morning of the robbery and 'R. Passage' paid the bill. The maid who made up the rooms after they had checked out discovered some bobby pins, pennies, personal odds and ends, and a suitcase. She put everything in the suitcase and took it to the 'lost and found' room. The manager gave Fresno police permission to examine the contents, among which they found a shirt with defendant's name on it. Through these investigatory leads the attention of Fresno police was focused on defendant as the third person involved in the robbery.

We observe, parenthetically, that the search of the suitcase was not illegal, as defendant contends. Defendant and his two companions had checked out of the motel and abandoned the suitcase; it was legally in the custody of the motel manager as 'lost and found' property. In Abel v. United States, 362 U.S. 217 at page 241, 80 S.Ct. 683, at page 698, 4 L.Ed.2d 668, the court said:

'These two items were found by an agent of the F.B.I. in the course of a search he undertook of petitioner's hotel room, immediately after petitioner had paid his bill and vacated the room. They were found in the room's wastepaper basket, where petitioner had put them while packing his belongings and preparing to leave. No pretense is made that this search by the F.B.I. was for any purpose other than to gather evidence of crime, that is, evidence of petitioner's espionage. As such, however, it was entirely lawful, although undertaken without a warrant. This is so for the reason that at the time of the search petitioner had vacated the room. The hotel then had the exclusive right to its possession, and the hotel management freely gave its consent that the search be made.'

(See also People v. Crayton, 174 Cal.App.2d 267, 269, 344 P.2d 627.)

This independent investigation by Fresno police pointed to defendant; that he was being detained illegally by the San Francisco police did not diminish the probable cause for his subsequent arrest while still in custody. To hold otherwise would unduly hamper law enforcement without achieving any useful purpose.

The use of evidence obtained by the San Francisco police presents a different question. The fact defendant had actually committed a felony did not justify the illegal arrest and search. (People v. Brown, 45 Cal.2d 640, 290 P.2d 528.) Therefore the question is whether the illegally-seized evidence was the matrix of the legally-obtained evidence and the connection between the two classes was so strong that a reversal is compelled.

Since the court held the original San Francisco arrest and seizure of evidence illegal, the first question is whether use of the illegally seized copy of the Hertz Car Rental Agreement so permeated the proof against defendant that his conviction stemmed from 'tainted' evidence. (Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Bilderbach, 62 Cal.2d 757, 44 Cal.Rptr. 313, 401 P.2d 921.) We think not. In the first place, the investigation made by Fresno police before receiving the telephone call pointed to defendant as a suspect. This evidence and the inferences to be drawn from it in no wise depend upon the San Francisco arrest. Though the copy of the car rental contract expedited the investigation, the chain of evidence inevitably led to the same result quite aside from that document. The Thunderbird automobile abandoned on a street in downtown Fresno would have led the police to its owner, Hertz Corporation; the original car rental contract in its possession would have led to defendant just as surely as did the copy found on his person. The Hertz people provided the lead to the taxi driver who drove defendant to the airport to pick up the Thunderbird, and to his testimony and his records. Furthermore, the book of matches led police to the employees of the motel who identified defendant, his two companions, the Thunderbird and the Mercury; a maid testified that she saw both the Mercury and the Thunderbird...