People v. Vegazo

• Citation: 191 Cal.App.2d 666,13 Cal.Rptr. 22
• Decision Date: 28 April 1961
• Docket Number: Cr. 3850
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Francis VEGAZO, Jr., Defendant and Respondent.

Page 22

13 Cal.Rptr. 22

191 Cal.App.2d 666

PEOPLE of the State of California, Plaintiff and Appellant, v. Francis VEGAZO, Jr., Defendant and Respondent.

Cr. 3850.

District Court of Appeal, First District, Division 1, California.

April 28, 1961.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Edward P. O'Brien, Deputy Attys. Gen., for appellant.

Joseph A. Filippelli, San Francisco, for respondent.

TOBRINER, Justice.

The superior court in this case sustained respondent's motion under Penal Code, § 995 to set aside the information charging respondent with possession of marijuana in violation of section 11530 of the Health and Safety Code. The order rested upon the ground that the marijuana offered as evidence had been obtained by an unlawful search and seizure. We believe, however, that the conduct of respondent in the presence of the officers, combined with the prior information in the possession of police, established probable cause for arrest. We think the precedents substantially compel that result. We find no merit in the further position of appellant that 'Since there was no showing that either the arrest or the search and seizure was made without a proper warrant, it is presumed that the arrest was lawful and that therefore the search of defendant's person as an incident thereto was lawful.'

According to Officer Fogarty of the San Francisco Police Department he received a phone call from the Bureau of Inspectors on April 21, 1960, at 'approximately 2:45 a. m.' to the effect that a woman had called 'having a phone number, stating that a man was in her apartment and that he was presently smoking marihuana.' When Fogarty called that number the woman said she would meet him in front of the apartment house at 825 Geary Street within five or ten minutes. Officer Fogarty and Agent Fahey of the Federal Narcotics Bureau then went to the designated apartment house. A woman giving her name as Betty Madison appeared and repeated that '* * * a man in her apartment * * * was smoking marihuana cigarettes.' The three then went up in the elevator to the apartment; the woman told the officers that she would re-enter the apartment and that they should ring the bell a few minutes later. The officers followed the suggested procedure, and the woman opened the door.

Officer Fogarty 'observed the defendant seated on a couch or Chesterfield.' He had a cigarette in his left hand. As the officer entered the room respondent was 'in the process of moving his hand down and rolling it (the cigarette) into a ball * * *.' The officer 'grabbed' the cigarette. The officer stated that 'when he rolled his hand and I bent over to pick it (the cigarette) up I could smell marihuana.' The officer then placed defendant under arrest.

In the municipal court respondent moved to dismiss the proceeding on the ground that the prosecution obtained the evidence as a result of an illegal search and seizure; the court denied the motion and held defendant to answer. As we have stated, the superior court sustained respondent's motion to set aside the information on the basis that the officers obtained the evidence by means of an illegal search and seizure.

We find no merit in appellant's first position that since respondent did not adduce any evidence that the officers proceeded without a warrant we must presume that they possessed a warrant and that their acts were lawful. To accept any such hypothesis would be to presume on appeal error of the trial court. People v. Farrara, 1956, 46 Cal.2d 265, 268-269, 294 P.2d 21. The superior court here dismissed the information and impliedly found that the officers proceeded without a warrant and indeed without probable cause. We certainly cannot presume that the officers possessed a warrant.

Nor do appellant's authorities sustain that position. In both of the cited cases, People v. Citrino, 1956, 46 Cal.2d 284, 294 P.2d 32, and Badillo v. Superior Court, 1956, 46 Cal.2d 269, 294 P.2d 23, the trial court gave judgment for the prosecution; hence the presumption ran in favor of the judgment and of the validity of the arrests. Upon that basis the presumption here favored respondent; the burden rested upon the prosecution to show the legality of the arrest.

Turning to the crucial question of the case, we believe that the conduct of respondent in moving his left hand to his side and rolling the cigarette into a ball constituted the kind of furtive and suspicious conduct which, combined with the previous statement by the informer that respondent was smoking a marijuana cigarette in her apartment, justifiably aroused the officers' suspicions, affording them reasonable grounds for belief that respondent participated in the commission of a crime. As we shall point out, we believe the decisions constrain us to reach this conclusion.

No precept predetermines just what kind of conduct on the part of a defendant composes reasonable and probable cause justifying arrest. As Justice White pointed out in People v. Ingle, 1960, 53 Cal.2d 407, 2 Cal.Rptr. 14, 'There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances [citations]--and on the total atmosphere of the case. [Citations.] Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.' 53 Cal.2d at page 412, 2 Cal.Rptr. at page 17.

A series of cases apply this general standard to situations which involve furtive or suspicious conduct. Willson v. Superior Court, 1956, 46 Cal.2d 291, 294 P.2d 36, is illustrative. There the police, acting on information from an unknown informer that defendant was engaged in a bookmaking operation, entered a cocktail lounge and saw the defendant, a waitress, standing next to the bar. A telephone, a pad of paper and a pencil had been placed on the bar. Defendant held slips of paper in her hand. When the police asked her what these slips were, defendant "* * * attempted to crumple them, and extended her hand to the back and to the side of her." 46 Cal.2d at page 293, 294 P.2d at page 37. Stating that information obtained from an anonymous informer cannot serve as the sole basis of arrest, the Supreme Court nevertheless upheld the arrest upon the ground: 'Although petitioner's conduct observed by Officer Sunday in the bar would not of itself constitute reasonable cause to believe she was committing a felony, it was sufficient to justify Officer Sunday's reliance on the information given her of petitioner's bookmaking. Under these circumstances the evidence before the magistrate was sufficient to justify the conclusion that a violation of Penal Code section 337a had been committed, that Officer Sunday had reasonable cause before the search and seizure to believe that petitioner was guilty thereof, and that therefore the search, seizure, and arrest were lawful. [Citations.]' 46 Cal.2d at pages 295-296, 294 P.2d at page 38.

Other cases similarly define the effect of furtive action such as that of respondent. Thus in People v. Blodgett, 1956, 46 Cal.2d 114, 293 P.2d 57, the officer questioned the occupants of a cab at a late hour of the night, ordered the occupants to get out of the cab, and saw defendant in so doing withdraw his hand from between the seat and the cushion. As to this the court commented, 'Since Officer Baker saw defendant's furtive action in getting out, he had reasonable grounds to believe that he was hiding contraband and the search of the cab was therefore reasonable.' 46 Cal.2d at page 117, 293 P.2d at page 58. Similarly in People v. Amado, 1959, 167 Cal.App.2d 345, 334 P.2d 254, the police, acting on information received from undisclosed informers, approached a house where narcotics were...