People v. Vermouth, Cr. 4605

• Decision Date: 21 October 1971
• Docket Number: Cr. 4605
• Citation: 98 Cal.Rptr. 65,20 Cal.App.3d 746
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Gary Phillip VERMOUTH and David Alfred Neuhoff, Defendants and Respondents.

Page 65

98 Cal.Rptr. 65

20 Cal.App.3d 746

The PEOPLE of the State of California, Plaintiff and Appellant, v. Gary Phillip VERMOUTH and David Alfred Neuhoff, Defendants and Respondents.

Cr. 4605.

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

Oct. 21, 1971.

Hearing Denied Jan. 13, 1972.

Edwin L. Miller, Jr., Dist. Atty., of San Diego County, Terry J. Knoepp and James D. Pippin, Deputy Dist. Attys., for plaintiff and appellant.

Barry Tarlow, Los Angeles, for defendants and respondents.

WHELAN, Associate Justice.

The People appeal from an order granting the motion of defendant Gary Phillip Vermouth to suppress, under Penal Code section 1538.5, certain evidence, and from an order dismissing all counts as to defendant David Alfred Neuhoff.

Defendants were charged jointly with possession of marijuana (Health & Saf.Code § 11530), possession of marijuana for sale (Health & Saf.Code § 11530.5), possession of a billy (Pen.Code § 12020), and possession of paraphernalia for injecting restricted dangerous drugs (Health & Saf.Code § 11915).

The trial court suppressed certain items of contraband found in the trunk of a vehicle, and in suitcases within the vehicle. Counts One, Two and Four of the information were dismissed against both Vermouth and Neuhoff by the court pursuant to Penal Code section 1385. The trial court further granted a motion under Penal Code section 995 in favor of defendant Neuhoff on Count Three of the information, leaving only Count Three (possession of a billy) pending against defendant Vermouth.

The motions were heard on the transcript of evidence taken at the preliminary hearing.

On August 4, 1970, at 3:30 a.m., Harry Arne Lee, Jr., a San Diego policeman traveling alone in a police car westerly on University Avenue, saw ahead of him, going in the same direction, a car the rear lighting of which was defective and in violation of the Vehicle Code.

Lee overtook and stopped the car, which had California license plates; asked the driver, Vermouth, for his license, which was an out-of-state one, asked for the car's registration, which Vermouth said he could not find; asked who was the owner, and was told a friend of the driver; asked the other occupant of the car, Neuhoff, for identification and was shown an out-of-state driver's license.

By that time a second policeman, Vernon Raymond Christopher, had come along and was asked by Lee to have a check-up made as to Vermouth and Neuhoff and was given their driver's licenses. Lee suspected the car might be a stolen one.

Lee asked the two men to step out of the car and they were given a weapons patdown.

Vermouth was questioned again about the car's registration and told Christopher to look for it in the glove compartment.

Christopher looked into the car through the open door on the passenger side and leaned in, brushing against the open blade of a five-inch pocket knife sticking outward from the space between the instrument board and a tape-playing machine. There was no closed glove compartment but a doorless opening which did not contain the registration.

Christopher handed the knife to Lee and then, looking across toward the driver's side, saw a billy resting against the door on that side in front of the seat. He took the billy, showed it to Lee and told the two defendants it was unlawful to have a billy club; Lee told them it was a felony. Vermouth said the knife and billy were his; that it was not against the law in the state where he lived to have a billy and he did not know it was against the law in California.

Christopher next asked Vermouth if he could search the vehicle, was told he could, and entered the rear of the vehicle where he saw and took possession of a pair of wire strippers, which he handed to Lee; removed a black tarpaulin from what it covered on the back seat; removed a chain from the seat; moved a suitcase from the floor on the right side and placed it on another suitcase on the seat at the right side; took possession of a small paring knife from the floor where the suitcase had been; and got out of the vehicle.

Lee asked Vermouth if he had anything in the trunk he did not want the officers to see, was told he did not; asked for permission to look in the trunk, was told he might look, and was handed the keys by Vermouth.

Christopher opened the trunk which contained an electronic unit or part of a stereo, a small speaker, and a tool which at one end had a tire lug wrench and at the other a prying edge. The prying section had fresh, long scrape marks on it.

Thereupon Vermouth and Neuhoff were placed under arrest for burglary and possession of a billy club.

By reading from a card, Christopher advised Vermouth and Neuhoff of their Fifth and Sixth Amendment rights against self-incrimination and to the presence of counsel.

Vermouth was placed in one police car, Neuhoff in the other, after their clothing was searched. Vermouth had on his person $1,024, Neuhoff $324.

Lee next looked under the driver's seat and found there a switch-blade knife; looked further for the registration certificate and found it attached to the upper side of the sun visor on the passenger side of the vehicle.

Lee then asked Neuhoff who owned the suitcases and was told Neuhoff owned them. Christopher had Neuhoff get out of Lee's vehicle; Lee took the suitcases from the vehicle where they had been found, carried them to his own vehicle, placed one of them on the car's hood, asked Neuhoff if there was anything in them Neuhoff did not want Lee to see; was told no; asked Neuhoff's permission to open it; was told he might, and opened the suit case and examined its contents. A similar procedure was followed as to the second suitcase. Usable quantities of marijuana were found in both; in one was found also paraphernalia for injecting narcotics.

The whole process occupied about 15 minutes.

Vermouth testified as a witness on the issue whether there was an unreasonable search and seizure; Neuhoff did likewise. Neither testified as to the ownership of either the billy, the suitcases or the open knife. Neither testified in affirmance or denial of the officer's testimony as to what Vermouth and Neuhoff had said about ownership of any of those articles. Neuhoff was asked by his counsel the question, 'Do you remember having a conversation with the officer about those suitcases?' To that Neuhoff made no response until told he could answer the question yes or no, when he said yes.

When asked by his counsel as to whose car he was driving, Vermouth said, 'I was driving a friend of mine's car--a friend who lives in my hometown.'

Later, his counsel asked him a question which, and the answer given, were as follows:

'Q When you were first stopped, did you give some explanation as to who the owner of the car was?

'A Yes, I gave the explanation that I just gave to the Court, that it belonged to a friend of mine, who was apparently back in my home town.'

Such an answer given by the driver of a car who is unaware of the location of the registration certificate is not a satisfactory answer or one likely to dispel suspicion. In People v. Clark, 2 Cal.App.3d 510, 518, 82 Cal.Rptr. 682, 686, the court observed:

'The vehicle had no indicium of ownership; the riders could give no satisfactory explanation of ownership--only that a vaguely described relative had loaned it to them.'

We answer the threshold question whether Lee properly halted the car because one of the tail lights had a crack in it 1/2 to 3/4 inches wide, through which white light was being emitted, in the affirmative, as both the magistrate and the superior court judge did. ¹

Because Lee's action in stopping the car was proper, it was likewise proper to ask for the driver's license and the evidence of the car's registration.

When the driver was unable to produce the registration certificate and said the car belonged to someone else, it was reasonable and proper for the officers to look in the car for the certificate. Indeed, Vermouth said he told one of the officers to look in the glove compartment.

The right to search in a car for indicium of ownership which the driver is unable to produce is upheld in People v. Mermuys, 2 Cal.App.3d 1083, 1088, 82 Cal.Rptr. 902; (People v. Grubb, 63 Cal.2d 614, 47 Cal.Rptr. 772, 408 P.2d 100.)

The circumstances that two persons with out-of-state driver's licenses were in possession of a vehicle with California license plates, not owned by either of them, and the driver's ignorance as to the registration certificate, taken with the lateness of the hour, made it reasonable to ask the two men out of the car and make a superficial search for possible weapons.

In the course of the authorized and reasonable search for the registration certificate, Christopher came in contact with the five inch open blade of a pocket knife, and then saw a billy.

At that point there was probable cause to arrest Vermouth at least for possession of contraband, possession of which was a felony. The vehicle was on a public highway, in mechanically operable and mobile condition.

In those circumstances it was permissible to search at the place of arrest and as incident thereto every part of the vehicle and any closed containers within it for other weapons or contraband. (Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; BUSBY V. UNITED STATES, 296 F.2D 328, 330;² Sugarman v. United States, 9 Cir., 35 F.2d 663, 665; People v. Lopez, 60 Cal.2d 223, 32 Cal.Rptr. 424, 384 P.2d 16; People v. Evans, 240 Cal.App.2d 291, 49 Cal.Rptr. 501; People v. Gilmore, 211 Cal.App.2d 35, 27 Cal.Rptr. 59; Bethune v. Superior Court, 11 Cal.App.3d 249, 89 Cal.Rptr. 690; People v. Glancy, 142 Cal.App.2d 669, 299 P.2d 18; People v. Jackson, 241 Cal.App.2d 189, 193, 50 Cal.Rptr. 437; People v. Carnes, 173 Cal.App.2d 559, 343 P.2d 626.)

In People v. Jackson, Supra, 241 Cal.App.2d 189, 193, 50 Cal.Rptr. 437, 439, the court said:

'We see no limitation in the cases limiting the...