People v. Valdez

• Decision Date: 19 January 1966
• Docket Number: Cr. 10867
• Citation: 239 Cal.App.2d 459,48 Cal.Rptr. 840
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gilbert Joseph VALDEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 840

48 Cal.Rptr. 840

239 Cal.App.2d 459

The PEOPLE, Plaintiff and Respondent, v. Gilbert Joseph VALDEZ, Defendant and Appellant.

Cr. 10867.

District Court of Appeal, Second District, Division 4, California.

Jan. 19, 1966.

David C. Marcus, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and David S. Sperber, Deputy Atty. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

Defendant was convicted of possession of marijuana in violation of Health and Safety Code, section 11530. By stipulation the case was submitted to the court upon the transcript of the preliminary examination and the testimony of the defendant. This appeal is from the judgment.

I. Evidence

The evidence tending to support the judgment will be stated in accordance with the established rule of appellate review. (People v. Hills, 30 Cal.2d 694, 700, 185 P.2d 11.)

Deputy Sheriffs Barlow and Secor first observed defendant on July 27, 1964, at approximately 4:30 or 5 p. m. He was seated in his automobile which was stopped in the middle of Eastern Avenue, 8 or 10 feet from the right-hand curb, and he was changing his shirt. Traffic was backed up for half a block. When the signal changed for the second time, the deputies drove alongside defendant's car and told him to move it out of the street. Defendant remained in the same location, however, and continued to remove his shirt.

The deputies proceeded to the intersection and drove into a gas station. Defendant then drove his car into the same gas station, stopping at a pole with a water line and air hose. The deputies approached defendant and asked him for his driver's license. He replied that he didn't have one. They next asked him for the registration of his car, and he said that he didn't have that either. He stated that the car belonged to his father, that it had become overheated and he had stopped in the middle of the street to wait for it to cool off, and that he had been taking his shirt off so he could work on the car and fix it. Defendant was then asked to step over to the patrol car. Deputy Secor began to write a citation while Deputy Barlow called headquarters by radio for a record check. Defendant then started to walk away. Secor called him back, patted him down for weapons and asked him to sit in the rear of the patrol car. Defendant complied.

While defendant was sitting in the patrol car Deputy Barlow, who was in the front seat, noted that 'his hand was making noise such as paper, wadding paper up.' Barlow asked the defendant what he had in his hand and defendant replied "Nothing." At that point Barlow turned around and said to defendant 'I want to see what you have in your hand.' Defendant opened his hand and started to move it towards his mouth. Barlow observed a red capsule and some tinfoil in the hand. He reached back and grabbed defendant's hand. Defendant began fighting, biting, kicking and scratching. Deputy Secor told defendant he was under arrest, but defendant continued to fight. Eventually defendant was subdued, with the aid of two other officers who were called to the scene by a spectator. Deputy Secor then removed the substance from defendant's hand which, upon examination, proved to be a partially smoked marijuana cigarette and two red capsules which contained secobarbital.

During the struggle defendant sustained a cut over his left eye and so was taken to the county hospital. The next morning Deputy Guenther, assigned to the narcotics detail, had a conversation with defendant there. Defendant was asked if he knew what was in the packages the officers had taken from him and he stated 'Yes, there were some reds and some pot." He admitted that he smoked marijuana and when asked whether the items found on him were his, he replied "Yes. Why do you think I tried to swallow them?" Defendant stated that he attempted to swallow them because he was afraid he would be sent back for violation of probation or parole. Deputy Guenther testified that the defendant's statements were freely and voluntarily made.

At the trial defendant denied that he ever opened his hand prior to or during the struggle with the deputies in the radio car, but did admit that he was trying to put something in his mouth before Barlow took hold of his hand. He did not deny that the marijuana had been found in his hand, nor did he deny that he knew the nature of the substance.

II. Legality of the Arrest and Seizure

The defense relied upon by defendant in the trial court was that the marijuana was not admissible in evidence because its discovery and seizure by the deputy sheriffs was illegal. This calls for an analysis of the events leading to the seizure.

When defendant was first seen in his automobile standing in the middle of Eastern Avenue during the rush hour he may have been in need of assistance or he may have been violating Vehicle Code, section 22502, depending upon circumstances which the deputies were entitled to investigate. (We note, however, that while defendant was in the street the deputies did not ask him to do anything except move on. They did not direct him into the service station.) When they learned that defendant carried no operator's license, and that his vehicle displayed no registration certificate, they had reason to believe he had been, in their presence, violating Vehicle Code, sections 4454 and 12500 or 12951. The deputies were authorized to arrest defendant for these offenses (Pen.Code § 836, subd. 1) and to detain him at least until he had furnished satisfactory evidence of his identity and had signed a promise to appear. (Veh.Code, §§ 40302, 40504.)

Moreover, in finding defendant without either an operator's license or a registration certificate, the deputies were bound to consider whether or not he was in possession of a vehicle which had been stolen or taken without the consent of the owner. The possibility that defendant might be guilty of one of these felony offenses was a circumstance bearing upon the kind of investigation which was pertinent and reasonable at that time. When defendant started to walk away, it was certainly not improper for the deputies to request him to sit in the patrol car while they prepared the citation and called headquarters for a record check.

While defendant was seated in the patrol car he was under arrest, within the meaning of Penal Code, section 834 and Vehicle Code, section 40300 et seq. (Cf. In re Emmett, 120 Cal.App. 349, 353, 7 P.2d 1096) A person under arrest does not enjoy the same liberty and the same privacy as other persons. For example, the fact that a lawful arrest has been made justifies a reasonable search of defendant's person and the immediate premises as an incident to the arrest. (People v. Parham, 60 Cal.2d 378, 383, 33 Cal.Rptr. 497, 384 P.2d 1001.)

Under the circumstances of this case it was proper for Deputy Barlow to insist on knowing what the arrested man held in his hand as he sat in the patrol car. A closed fist may conceal a weapon, contraband, or evidence of an offense which is under investigation. The sound of crumpling paper in defendant's hand suggested the concealment of a document which might betray the true identity of defendant or the ownership of the vehicle. Peace officers are well aware that red capsules often contain a barbiturate (possession of which is restricted by Bus. & Prof.Code, § 4230) and that persons caught with contraband or other incriminating evidence frequently try to thwart investigation by swallowing the evidence. Here defendant's patently false statement that he had nothing in his hand, and the movement of his arm toward his mouth, called for prompt action by Deputy Barlow to prevent defendant from swallowing whatever he was holding.

There is no suggestion in this record that the deputies choked defendant or committed any other act of brutality of the kind involved in Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, and People v. Parham, 60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001. Officer Barlow simply held defendant's arm to keep his hand away from his mouth. Defendant reacted by fighting, biting, kicking and scratching until he was eventually brought under restraint. The marijuana, which was found in defendant's hand after the fight, was not seized unlawfully.

Neither People v. Brown, 45 Cal.2d 640, 290 P.2d 528, nor Gascon v. Superior Court, 169 Cal.App.2d 356, 337 P.2d 201, cited by defendant, supports defendant's position here. In each of those cases the contraband was taken from the person of the defendant illegally because at the time the police accosted the defendant they had no cause to make an arrest or even any reason for suspicion. The seizures were not justified by what was known or reasonably suspected by the officers at the time. Our recent decision in People v. Garrett, 237 A.C.A. 827, 47 Cal.Rptr. 194, falls in the same category with Brown and Gascon because the court was required to disregard the information which the officers had relied upon as a justification for stopping the defendant.

In the case at bench, when Deputy Barlow asked defendant what he held in his hand the relationship between them was quite different from the relationship between an officer and a citizen whom he meets casually in a public place. Defendant was under arrest, seated in a police vehicle, concealing something in his fist.

It was these circumstances which called for inquiry, and which justified further measures when defendant attempted to swallow the object.

III. Sufficiency of the Evidence

As defendant's counsel interprets the testimony of the two deputies there was some conflict between them. His argument, based upon this supposed conflict, requires no discussion here. It was for the trial court to determine whether and to what extent the testimony was reliable,...