Tinney v. Wilson

• Decision Date: 10 April 1969
• Docket Number: No. 22266.,22266.
• Citation: 408 F.2d 912
• Parties: James TINNEY, Appellant, v. Lawrence E. WILSON, Warden, et al., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

408 F.2d 912 (1969)

James TINNEY, Appellant, v. Lawrence E. WILSON, Warden, et al., Appellee.

No. 22266.

United States Court of Appeals Ninth Circuit.

February 28, 1969.

Rehearing Denied April 10, 1969.

James Tinney, in pro per.

Thomas C. Lynch, Atty. Gen., Deral E. Granberg, Michael J. Phelan, Deputy Attys. Gen., San Francisco, Cal., for appellee.

Before HAMLIN, MERRILL and ELY, Circuit Judges.

ELY, Circuit Judge:

Appellant Tinney is presently in California penal custody pursuant to a conviction for possession of marijuana. Cal. Health & Safety Code & 11530 (West 1961). After exhausting his post-conviction remedies in the state courts, Tinney filed a petition for writ of habeas corpus in the court below. That court denied his petition without having conducted an evidentiary hearing, and Tinney appeals from that denial. Tinney's principal contention is that his conviction was based upon evidence — a marijuana cigarette — which was secured through an unconstitutional search and seizure.¹ Agreeing with this contention, we must reverse.

The facts surrounding Tinney's arrest for possession of marijuana are not in dispute. On the night of April 17, 1965, Officer McGill was patrolling a street in Los Angeles, with his partner, when a young woman called to him from the sidewalk and asked if he wanted a "date." She indicated that he should drive farther along the street and park his car. Officer McGill drove to a parking lot a short distance away, where his partner left the car. Officer McGill then returned to meet the girl, and they discussed an act of prostitution. The girl directed the officer to a nearby hotel where she agreed to commit prostitution. The officer, however, declined to enter the hotel. At this point, a second young woman approached the car and discussed the matter with the first girl. The second girl then informed Officer McGill that the first girl would engage in an act of prostitution in the car at a location of his choice provided the second girl could follow in her car as lookout. Officer McGill agreed to this procedure. The second girl then left and returned shortly in a 1956 Pontiac, whereupon Officer McGill, accompanied by the first girl and followed by the second car, drove to the parking lot where his partner was waiting. Once the cars were stopped in the parking lot, Officer McGill placed the girl in his car under arrest for prostitution. He then went to the rear of the 1956 Pontiac, where he was joined by his partner, and the two then observed Tinney lying on the backseat of the Pontiac. As to succeeding events, Officer McGill testified² as follows:

"A I thought that Mr. Tinney was in a position to rob me had I driven into the alley where we had agreed to go.

This second girl was placed under arrest for prostitution and Mr. Tinney was asked to get out of the car. And I ran my hands over his pockets.

"Q For what purpose?

"A A cursory search for weapons.

"Q You may continue.

"A And in his left pants pocket I felt from the outside an object that appeared to be, that felt to be round, and it crinkled, like cellophane. I could feel by gently squeezing this object that it felt to be pills or capsules.

I asked Mr. Tinney what this object was and he replied, `Nerve Pills.\'

* * * * *

"A At this time I advised Mr. Tinney that he had the right to an attorney, that he didn\'t have to say anything, and that anything that he said could be used in the future against him.

I then asked him if he had a prescription for these pills, and he said, `No.\'

"Q Was this statement freely and voluntarily given?

"A Yes, sir.

"Q Were all statements made by him thereafter freely and voluntarily given?

"A Yes, sir.

"Q You may continue.

"A I reached into his pocket and removed this cellophane package, and there were numerous pinkish pills * * * commonly referred to as `red devils\'.

* * * * * *

"Q * * * On April 17 when you found these pills on the defendant, what did you believe them to be?

* * * * * *

THE WITNESS: Seconal.

"Q. * * * Then what happened, sir?

"A At this time he was placed under arrest for possession of dangerous drugs, and at this time handcuffs were placed on him.

"Q Then what happened?

"A And then I searched the person of Mr. Tinney for any other evidence of pills, and in his left shirt pocket, the vest pocket, I found what appeared to be a brown paperwrapped cigarette.

I took it out of his pocket and held it right in front of his eyes, and I asked Mr. Tinney, `Where did I get this?\'

And he said, `In my pocket.\'

And then I asked him what it was.

And he said, `It is marijuana.\'

I asked him where he got it and he said he got it from a friend for 50 cents."

Tinney was charged only with possession of the one marijuana cigarette. Tinney's attempts at the preliminary hearing and the trial to suppress the evidence of the pills and the marijuana cigarette on the ground that they were the fruits of an illegal search and seizure proved unsuccessful. The trial judge admitted the evidence over objection, stating:

"But I think the officers had every right to arrest this man without even patting him down or anything else. He was out there operating with a couple of juvenile prostitutes, concealing himself, but it\'s true the officers spent a lot of time talking about nerve pills in his possession.

"I think they had the right to make the search, make the arrest."

Tinney appealed to the California District Court of Appeal, but that court, in an unpublished opinion, affirmed the conviction. It reasoned:

"Under the circumstances the officers had the right to request the defendant to alight from the vehicle and to question him as to the reason for his presence. * * * The right to investigate gave rise to the right on the part of the officers, for the purpose of selfprotection, to make a superficial search of the defendant for concealed weapons. * * * In the course of such search for weapons, Officer McGill touched and squeezed an object in the defendant\'s left pants pocket which `felt to be pills or capsules.\' The officer was not required to ignore the object which had aroused his suspicion * * * but was warranted, in the performance of his duty, in making inquiry of the defendant as to the nature thereof. At that investigatory stage, the officer properly asked the defendant to explain what the object was. Upon receiving the response, `Nerve Pills,\' the officer advised the defendant of his constitutional rights as required by the Escobedo-Dorado rule before he proceeded beyond the investigatory stage. He then asked the defendant if he had a prescription for the pills and received the answer that he had no prescription. While the officer did not arrest the defendant until he had removed the object from the defendant\'s pocket and examined its contents, upon being informed that the defendant had `Nerve Pills\' for which he had obtained no prescription the officer had probable cause to arrest the defendant since there then existed 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 defendant was in possession of dangerous drugs obtained without a prescription."

(Footnotes omitted.) The California court then explained that the further search which was made after the arrest and which resulted in the finding of the marijuana cigarette was proper since it occurred incident to a lawful arrest.

We now have the advantage of recent Supreme Court pronouncements, made after the California courts met the problem. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Aided by the new guidelines, we reach the conclusion that the California courts erred in the application of fourth amendment principles. At the outset we think we must treat the initial "frisk" of Tinney by the officers as a limited search based upon suspicion of the possibility of criminal conduct rather than as a search incident to an arrest. We could not accept the proposition that Tinney's mere presence in the automobile and the resulting inference of his apparent association with the female offenders, standing alone, would supply sufficient probable cause for his arrest. Neither, apparently, could the reviewing California court, for its decision did not so hold.

As we see it, the first step in the officers' investigation of the circumstances surrounding Tinney was a "frisk" of him for weapons. In Terry, the Supreme Court dealt with such a...