People v. Waller

• Decision Date: 18 March 1968
• Docket Number: Cr. 6367
• Citation: 67 Cal.Rptr. 8,260 Cal.App.2d 131
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Doyle WALLER, Defendant and Appellant.

Page 8

67 Cal.Rptr. 8

260 Cal.App.2d 131

PEOPLE of the State of California, Plaintiff and Respondent, v. Doyle WALLER, Defendant and Appellant.

Cr. 6367.

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

March 18, 1968.

Rehearing Denied April 12, 1968.

Hearing Denied May 15, 1968.

Adams & Levin, by Dennis J. Kehoe, Santa Cruz, for appellant.

Thomas C. Lynch, Atty. Gen., Michael Phelan, L. Donald Boden, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant has appealed from a judgment sentencing him to state prison following a jury verdict which found him guilty of possession of marijuana in violation of section 11530 of the Health and Safety Code. He asserts as error: (1) that there was a prejudicial use of evidence obtained through an illegal arrest, search and seizure because there was no probable cause for his arrest; (2) that there was a prejudicial use of evidence obtained through an illegal search of the vehicle he was operating because it was searched without a search warrant at a time and place remote from the arrest; (3) that there was a failure to establish a proper foundation for the use of that evidence because of discrepancies in the testimony concerning the chain of possession; (4) that the court improperly permitted the prosecution to cross-examine the defendant regarding the details of his prior conviction; and (5) that there was no substantial evidence to indicate that defendant had knowledge of the presence of the substance found in the vehicle.

An examination of these contentions in the light of the record and the applicable law fails to reveal any prejudicial error, and the judgment must be affirmed.

The Facts

On the evening of September 16, 1966, defendant, Doyle Waller, Dennis Stenisrud and Candice Rice began a trip from San Francisco to Big Sur in defendant's employer's white Dodge truck.

Prior to leaving for Big Sur, they drove to Stenisrud's apartment. Stenisrud and Miss Rice went upstairs, while defendant waited in the truck. At the apartment, they were joined by one David Krstich. They brought down camping gear for the trip. Miss Rice had a large leather purse, a sweater, some marijuana, and about 100 LSD capsules. Miss Rice's possessions were 'all loose,' not contained in any bundle. In addition to the gear, and her possessions, she thought there was a cardboard box in the car, located in back of the driver's seat, with some stuff in it, but she did not look in the box.

On the trip down to Big Sur, Miss Rice became aware that there was marijuana, in addition to her own, in the truck. The defendant, who did all the driving on the trip, picked up a can that was in front of the truck, and 'took a joint out of it.' According to Miss Rice, he then lit it, and passed it to her. Miss Rice did not know to whom this marijuana belonged. She had not seen the defendant bringing any marijuana into the car. During the trip down, the four people apparently smoked the marijuana, without concern for its source.

The group spent the night of September 16, 1966 camping in the truck at Big Sur. The next morning, they drove to Monterey, for breakfast, arriving there at about 11 a.m. On the trip to Monterey, the group smoked marijuana.

Shortly after breakfast, the group went to a pipe shop to purchase some pipes. Defendant purchased a black, fish-shaped pipe. They all returned to the van and filled their pipes. Defendant filled his pipe from what Miss Rice thought was the little can in the front of the truck. However, since she was busy filling her own pipe she could not be sure of this. The group smoked the pipes, and defendant was smoking his until some time prior to his apprehension by the police.

At approximately 12:30 p.m., one of the members of the group offered a ride to two young hitchhikers, Layne McGraw and Dennis Johanson. During the course of the ride, from Monterey to Pacific Grove, one of the group offered the hitchhikers some 'pot.' Dennis Johanson observed the defendant take a puff from a pipe that Miss Rice passed around.

Some four or five minutes after being dropped off at Pacific Grove, the hitchhikers located a police officer, and described to him what had occurred in the van. Shortly after the conversation with the hitchhikers the officer saw the white van. He stopped it and searched it under circumstances reviewed below. The contraband found was admitted in evidence at the trial over the objection of defendant.

Defendant testified in his own behalf. He indicated that Stenisrud and Miss Rice had 'sleeping bags and long white cushions and box and they had some extra clothing and some blankets.' He declared he told them they were not to have marijuana in the vehicle. He testified that, to his knowledge, no marijuana was smoked on the way to Big Sur, and if marijuana was smoked he thought he would have been aware of it. He indicated that the first use of drugs occurred in Monterey when Miss Rice procured and used 'snappers' (amyl nitrate). Miss Rice and the others then went to a pipe shop while he walked through a historical building in Monterey. He indicated his first knowledge that there was marijuana in the car occurred after the hitchhikers had entered and were offered marijuana. Defendant testified that after he dropped off the hitchhikers, he commented on the use of the marijuana in the van, and told the others that he wanted to go back to San Francisco.

I. Probable Cause for Arrest

The evidence shows that the police officer was contacted by the boys while he was on routine patrol. The Johanson boy lived near the police station. The officer testified that he knew the Johanson boy 'fairly well.' He had known him for about a year and a half, 'generally as a person that had never been in trouble.' The officer had never before received information from the boy upon which he had acted.

The boys told the officer of the incident described above. They indicated that they had been offered a ride in a white van; that three men and a woman were in the van; that during the course of the ride they were offered 'pot'; that the odor emanating from the pipe that was passed around was 'unusual,' unlike any tobacco; that the girl in the van had long stringy hair and was wearing an 'orangish' sweatshirt, brown cord pants and sunglasses; and that the van proceeded on toward Asilomar after they got out.

When the officer saw a white van he followed it. As he pulled behind it, he was able to see four people, three males in front, and the girl in the rear. The girl's hair and blouse matched the description given by the boys. The officer stopped the vehicle, and as he was walking toward the driver's side he noticed the girl rummaging around the right hand corner, and the man in the front center seat putting something under the seat. The officer requested identification from the occupants, and asked the defendant, who was driving, for the vehicle registration. The defendant presented an expired license, and according to the officer 'that was the only identification I was able to get from him or anyone in the vehicle.' No registration was produced for the vehicle.

After assistance arrived, the occupants were advised of their rights, removed from the van, and the men were searched. A search of the van disclosed a cigar pipe and some finely granulated green vegetable matter on the motor panel; a kilo of marijuana in an open cardboard box behind the driver's seat; a brown paper sack under the driver's seat containing a corner of a kilo of marijuana, and a tin can with two marijuana cigarettes, some capsules in a plastic bag, and some loose marijuana scattered throughout the vehicle. Subsequently, a corncob pipe containing marijuana was found in Miss Rice's purse.

Since the arrest was made without a warrant, the burden rested upon the prosecution to show proper justification. (Tompkins v. Superior Court (1963) 59 Cal.2d 65, 67, 27 Cal.Rptr. 889, 378 P.2d 113; People v. Rodriquez (1966) 242 Cal.App.2d 744, 747, 51 Cal.Rptr. 873.)

Where information is received from an informer of unknown reliability, that information alone will not serve to establish probable cause for a subsequent arrest. (People v. Goodo (1956) 147 Cal.App.2d 7, 9--10, 304 P.2d 776; and see People v. Amos (1960) 181 Cal.App.2d 506, 508--509, 5 Cal.Rptr. 451.) On the other hand, 'In dealing with the problem of informants whose information may or may not be sufficient to create probable cause, it should be noted that a citizen who purports to be the victim of or to have witnessed a crime is a reliable informant even though his reliability has not theretofore been proven or tested. (See People v. Lewis (1966) 240 Cal.App.2d 546, 550, 49 Cal.Rptr. 579; People v. Griffin (1967) 250 Cal.App.2d 545, 550, 58 Cal.Rptr. 707 * * *.)' (People v. Gardner (1967) 252 A.C.A. 336, 340--341, 60 Cal.Rptr. 321, 324. In addition to the cases cited, see People v. Livingston (1967) 252 A.C.A. 682, 687, 60 Cal.Rptr. 728; People v. Pressley (1966) 242 Cal.App.2d 555, 558--559, 51 Cal.Rptr. 563; and People v. Miller (1967) 248 Cal.App.2d 731, 734--735, 56 Cal.Rptr. 865; and cf. People v. Coleman (1968) 258 A.C.A. 658, 662, 65 Cal.Rptr. 732.)

In the instant case the two boys were more than mere informers. The boys furnished eyewitness accounts of the crime, as well as identification of the criminals and the place of the crime. They were citizens, who were, by contacting the police, acting openly in aid of law enforcement. The trial court properly applied the latter rule in upholding the validity of the arrest and attendant search.

Defendant seeks to avoid the application of this rule on the ground that the court cut short cross-examination directed to establishing Johanson's reliability. ¹ (See Evid.Code, § 711; People v. Dotson (1956) 46 Cal.2d 891, 898--899, 299 P.2d 875; and People v. Goodo, supra, 147 Cal.App.2d 7, 9--10, 304 P.2d 776.) The question propounded by the interrogator was...