People v. Weitzer

• Citation: 75 Cal.Rptr. 318,269 Cal.App.2d 274
• Decision Date: 30 January 1969
• Docket Number: Cr. 6776
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Stanley WEITZER, also known as Stanley Mark Weitzer, Defendant and Appellant.

Page 318

75 Cal.Rptr. 318

269 Cal.App.2d 274

The PEOPLE of the State of California, Plaintiff and Respondent, v. Stanley WEITZER, also known as Stanley Mark Weitzer, Defendant and Appellant.

Cr. 6776.

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

Jan. 30, 1969.

Hearing Denied April 30, 1969.

Treuhaft & Walker, Douglas J. Hill, Oakland, for appellant.

Thomas C. Lynch, Atty. Gen., San Francisco, Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., for respondent.

SIMS, Associate Justice.

Defendant has appealed from an order granting probation (denominated judgment in his notice of appeal) following his conviction of possession of marijuana in violation of section 11530 of the Health and Safety Code after a court trial based on the transcript of his preliminary examination. He contends that the evidence upon which his conviction was based was inadmissible because it was secured as the result of a search which was illegal because it was predicated upon an arrest under a traffic warrant that was defectively subscribed by a rubber stamp signature, and unauthorized for service at night because of a failure of exercise of judicial discretion to so direct, and that, if the warrant was not defective, the search exceeded the scope of a search reasonably justified by such an arrest. The People assert that defendant at this stage of the proceedings cannot raise for the first time the point that the warrant was improperly executed by use of a rubber stamp for the judge's signature; that the adoption of general policy for service of traffic warrants in the nighttime, and the use of forms so directing is proper; that in any event there was reasonable cause to arrest the defendant because of a misdemeanor committed in the officer's presence; and that the search was proper.

It is axiomatic that the fruits of a search predicated upon an illegal arrest cannot be used as evidence to sustain a conviction for possession of that which has been illegally seized. (Terry v. State of Ohio (1968) 392 U.S. 1, 12, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889; Mapp v. Ohio (1961) 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Agnello v. United States (1925) 269 U.S. 20, 33--34, 46 S.Ct. 4, 7, 70 L.Ed. 145; People v. Cahan (1955) 44 Cal.2d 434, 445--450, 282 P.2d 905, 50 A.L.R.2d 513; People v. Molarius (1956) 146 Cal.App.2d 129, 132, 303 P.2d 350.) Inquiry is therefore directed to the legality of the defendant's arrest, and the reasonableness of the search which produced the contraband.

The Facts

The circumstances under which the defendant was arrested and the contraband was discovered were as follows: At approximately 1:15 a.m. on December 7, 1966 an officer of the Berkeley Police Department observed a station wagon proceeding at what appeared to be an excessive speed. He followed the automobile and found it was going between 38 or 43 miles per hour in a 25 mile per hour zone. It was driven through an intersection controlled by a blinking red stop light without stopping. The officer then activated his siren and the pursued car was brought to a halt. The defendant, who was operating the vehicle, furnished the officer his operator's permit. The officer, after checking the registration of the vehicle, returned to his patrol car to prepare to write a citation and to check the defendant's name with the police identification network for any outstanding warrant. The officer was advised by the desk sergeant that the latter had in his hands a warrant from the Berkeley-Albany Municipal Court for a traffic violation.

Thereupon the officer returned to the defendant's vehicle and placed him under arrest for the outstanding warrant. He asked the defendant to step out of the car, and to place his hands on the roof of the patrol car 'in order to pat him down for weapons and contraband.' The defendant apparently complied, and in patting him down the officer felt an unusually large bulge in the defendant's pants pocket. He felt a sharp protruding edge, or point, on this bulky object. The officer did not know whether it was a weapon or something like a weapon. He asked the defendant what it was, and the defendant replied that it was a letter he had forgotten to mail. The object did not feel like a letter, and the officer did not believe that it was such. He thereupon reached into the defendant's pocket and withdrew what he observed to be the end of a matchbox wrapped in a torn, crumpled and partially unfolded envelope. ¹ He opened it, observed what appeared to be marijuana, and placed the defendant under arrest for the charge of which he was convicted.

Signature on the Warrant

At the preliminary examination the defendant's attorney stated without objection or contradiction, 'I have checked the records and I would stipulate that this warrant was on a printed form which had the signature of I believe it was Judge Talbott, rubber stamped on it and also it is printed in part the printing says the warrant is servicable at any time, day or night.' The prosecution apparently accepted the stipulation, and neither the warrant nor the orders upon which it was predicated were produced at the preliminary hearing or the trial. At the trial the defendant asserted, 'The consent was a blanket consent * * * I am informed, and from looking in the records what happens is that the warrants are simply printed forms and they are run through the IBM machines that have the printing on them.'

The defendant has attached to his brief a written statement of the judge whose facsimile signature was attached to the warrant which reads: 'Since taking the bench in January 1959 the Clerk and Deputy Clerks of the Berkeley-Albany Municipal Court have been authorized to us my signature stamp for the purpose of stamping warrants for vehicle code violations and for parking violations and for stamping civil orders of examination and civil bench warrant letters.' Also appended is an order dated October 11, 1966 of the judges of the judicial district from which the warrant issued reading as follows: 'It is ordered that the signature stamps set out below may be used for the sole purpose of stamping warrants for Vehicle Code Violations and for Parking Violations, and for stamping Civil Orders of Examination and Civil Bench Warrant letters,' and a copy of a warrant dated '7--08--66' which reflects that a complaint had been filed for violation of Vehicle Code section '22500.F' on '2--02--66' and fixing bail in the sum of $10.00. Section 22500, subdivision (f), prohibits parking on a sidewalk.

At the preliminary examination and at the trial the defendant's objection, hereinafter discussed, was predicated solely on the fact that the facsimile signature demonstrated a failure by the magistrate to exercise the discretion to order an arrest at night as required by the provisions of section 840 of the Penal Code. The People contend that the defendant cannot raise the general objection at this stage of the proceedings because if it had been advanced earlier, the prosecution could have shown that the facsimile signature was adopted by the magistrate, and also could have explored more thoroughly the right of the officer to arrest the defendant for the misdemeanors committed in his presence.

In People v. Brussel (1932) 122 Cal.App.Supp. 785, 7 P.2d 403 the opinion recites: 'The courts seem to be generally in accord in holding that a printed or stamped signature of a court officer is a sufficient authentication, fulfilling the requirement of a signature, where such signature has, in effect been adopted by the officer. (Citations.) If the persons whose names appeared upon the complaint as signers thereof adopted or used a rubber stamp as their signature, and such stamp was affixed by them personally, or by another in their presence and by their direction, the impression of such stamp became the lawful signature of such persons.' (122 Cal.App.Supp. at pp. 788--789, 7 P.2d at p. 404.) That court further observed that it would be presumed that the public officer did his duty, and that it was error to conclude that the public officer had not authorized the subscription which appeared on the instrument, merely because a rubber stamp had been used. Here, however, the record, as consensually augmented, does not show authorization as to this particular warrant, but a blanket authorization, and the question remains whethr that practice is proper.

The procedure for issuance of a warrant for a misdemeanor ² is set forth in Penal Code section 1427 as follows: '(a) When a complaint is presented to a judge of an inferior court of the commission of a public offense appearing to be triable in his court, he must, if satisfied therefrom that the offense complained of has been committed and that there is reasonable ground to believe that the defendant has committed it, issue a warrant, for the arrest of the defendant.' The section continues in part: '(b) Such warrant of arrest and proceedings upon it shall be in conformity to the provisions of this code regarding warrants of arrest, and it may be in the following form: * * *.' The warrant in question generally complies with the form prescribed except that it does not contain the statutory language, 'Witness my hand and the seal of said court * * *', but merely bears the word '(seal)' and the facsimile rubber stamped signature of the judge over the title 'Judge of the Municipal Court.' The general provisions regarding the issuance of a warrant of arrest are found in sections 813 through 816 of the Penal Code. Section 815 provides: 'It must * * * be signed by the magistrate, judge or justice issuing it with the title of his office.'

In this case no issue has been raised concerning the sufficiency of the complaint upon which the warrant is predicated. (Cf. People v. Sesslin (1968) 68 A.C. 431, 435--439, 67 Cal.Rptr. 409, 439 P.2d 321.) The question relates to the formal manner in which it was issued. In at least two jurisdictions it has...