THE PEOPLE, Plaintiff and Respondent,
v.
PETER MACHEL, Defendant and Appellant.
Court of Appeals of California, First District, Division One.
*39 James C. Purcell for Defendant and Appellant.
Stanley Mosk and Thomas C. Lynch, Attorneys General, Edward P. O'Brien, John F. Kraetzer, Robert R. Granucci and Clifton R. Jeffers, Deputy Attorneys General, for Plaintiff and Respondent.
SULLIVAN, P.J.
The court sitting without a jury found defendant guilty of possession of marijuana. (Health & Saf. *40 Code, § 11530.)[1] He appeals from the judgment of conviction.
On March 7, 1963, at about 8:30 p.m., San Francisco Police Inspector Robert Martin, a member of the narcotics detail, accompanied by Inspector Lawler of that detail and Federal Agent Niblo went to apartment 101 at 1190 Pine Street, San Francisco, on a narcotics investigation. Thеre Martin arrested Lewis Molin and Nadine Sweem, the occupants of the apartment, for possession of a marijuana cigarette. Nadine Sweem told Inspector Martin that they had obtained the cigarette from "a person by the name of Pete" who had left it there the night before. She said that Pete was expected to return that night at about 9 p.m. although she did not indicate the purpose of his visit.
After further discussing this person with Nadine Sweem, Martin reached the conclusion that he was defendant Peter Machel concerning whom he had certain informаtion. Martin knew Machel to be an associate of a woman named Max Phelps whom Martin and Lawler had arrested for possession of marijuana in January 1963. On that occasion Martin with the permission of Max Phelps had monitored an incoming telephone call from a person identified by her as defendant. While the caller made no mention of narcotics, the gist of the conversation and the "jargon" employed made Martin suspicious that he might be involved in the narcotics traffic. Max Phelps had said only that defendant was a friend of hers and mentioned nоthing about defendant's activity in narcotics. Prior to this occasion, the inspector had had no contact with Max Phelps. However he later checked the police records and found that defendant had been arrested in the past and that he had a narcotics record. He also saw defendant's photograph in his "rap sheet." Martin stated that the foregoing was the only information he had concerning defendant when on March 7, 1963, he went to the apartment house on Pine Street.
After arresting the occupants, the three officers remained in the apartment. At 9:20 p.m. the door bell rang and someone pressed the return buzzer. Martin and Niblo stationed themselves *41 just inside the front door of the apartment. There was a knock on the door and upon opening it Martin observed defendant and one Joe Russo standing at the door. The inspector had arrested Russo some months before and knew that he was then under indictment for possession and transportation of marijuana. He recognized defendant from his "mug shots."
The inspector greeted Russo and identified himself to defendant, who became very pale and started backing up toward the general direction of the main door of the apartment house. After defendant had taken several backward steps, Martin "then walked up to him and placed my arm on him and stopped his backward progress." Martin and Niblo then "escorted Russo and Machel back into the apartment." Up to this point defendant had said nothing.
Defendant was taken into the bedroom where Martin "patted him down" for weapons. As the inspector ran his hands over defendant's left front trouser pocket, he "felt an article or articles in his poсket which, from my past experience, made me suspicious that they were perhaps marijuana cigarettes.... Usually, if several cigarettes are carried, they are as a rule bound by a rubberband or some type of article like that to keep them from bouncing around in the pocket and perhaps become damaged, also to facilitate a quick disposal of them." Martin thereupon asked defendant what he had in the pocket whereupon defendant "began to sweat very profusely and he remained very pale." He repeated the question three or four times but defendant refused to talk. Martin then put his hand in the pocket and removed the object he had felt, which appeared to be three marijuana cigarettes bound with a rubberband. Martin did not feel any weapons on defendant when he conducted the pat search. He could not recall at the trial whether or not defendant was handcuffed at this time. The inspector then interrogated defendant as to where he obtained the cigarettes, a matter which we discuss in detail infra. At the trial the cigarettes were introduced in evidence over defendant's objections that they were the product of an unlawful search and seizure.
Inspector Martin testified under cross-examination that his original purpose in going to the Pine Street apartment on a narcotics investigation did not contemplate an investigation of defendant. He also stated that if defendant had wanted to leave the apartment house premises when Martin first saw *42 him standing at the door, he would not have permitted defendant to do so.
Defendant called Federal Narcotics Agent Niblo as his own witness. Niblо testified that when the apartment door was first opened defendant was apparently "a little shocked by our presence there" and took one step backward whereupon "I think, I put my arm ... on his right arm because I was under the impression he was about to flee...." According to Niblo, defendant was not handcuffed outside the door but only after Martin had removed the cigarettes from his pocket inside the apartment.
Lewis Molin, one of the occupants of the apartment, also called as a witness for defendant, testified that when defendant first appeared at the apartment, Martin and Niblo showed him their badge and Niblo, going behind defendant, held the latter's arms in an armlock while Martin handcuffed him and brought him into the apartment.
Defendant, testifying in his own behalf, stated that he had gone to the apartment to return Molin's car which he had borrowed. His description of the arrest coincided with that of Molin. Defendant admitted knowing Max Phelps, mentioned by Inspector Martin in connection with the January episode, admitted telephoning her at about that time and further admitted on cross-examination that at the time of the arrest he had the three marijuana cigarettes on his person.
Defendant contends on appeal (1) that the search of his person not being incidental to a lawful arrest upon probable cause was illegal and that the evidence illegally seized in the course thereof should have been excluded by the trial court; and (2) that the admission in evidence of incriminating statements made by him was reversible error under the rule announced in People v. Dorado (1965)
*43 In California the rule is settled "that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning. If the circumstances warrant it, he may in self-protection request a suspect to alight from an automobile or to submit to a superficial search for concealed weapons. Should the investigation then reveal probable cause to make an arrest, the officer may arrest the suspect and conduct a reasonable incidental search. [Citations.]" (People v. Mickelson, supra,
However the above rule by its terms and in its application has been confined to persons оutdoors as appears from the facts of Mickelson and the supporting authorities therein referred to[2] as well as from a number of decisions both preceding[3] and following[4]Mickelson. In most instances the detention has occurred outdoors at night. Obviously temporary *44 detention by the police indoors for investigation purposes is cast in a different setting and may require assessment of additional factual ingredients. The subject of the investigation may be a licensee or invitee lawfully on the premises or may be a person in his own dwelling place. (See People v. Cove (1964)
[1] Nevertheless reasonable investigatory techniques may be pursued by the police indoors as well as outdoors. "[I]t is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes." (People v. Michael (1955)
[4] In the instant case, the officers had just arrested the two occupants of the apartment for possession of a marijuana cigarette. Inspector Martin was informed by one of them that the cigarette had been left there by a person who Martin *46 concluded was defendant and concerning whom he had information as stated above. Among this was information from police records that defendаnt had a narcotics record and a prior conviction. These circumstances could give the officer good reason to suspect that defendant might be delivering an additional quantity of marijuana cigarettes. Certainly such suspicions would be increased by defendant's conduct at the time when Martin first confronted him his suddenly becoming very pale and retreating towards the main door of the apartment house. All this warranted investigation by the officer. A temporary stopping of a pedestrian, whether outdoors or indoors, is implicit in any effective investigation. It would be absurd to recognize an officer's right, indeed duty, to investigate and at the same time require him to do so "on the run" should his suspect be so disposed. This is not a case where the police either had made or were in the process of making an unlawful entry upon the premises in order to reach the subject of the investigation. The record discloses, and defendant does not dispute, that they were lawfully in the apartment house. Unlike People v. Cove, supra, this is not even a case where the subject of the investigation was in his own dwelling house and the investigatory acts themselves raised the critical question as to whether "Lawful entry, `the indispensable predicate of a reasonable search,' had been established. [Citation.]" (People v. Cove, supra,
[5] Aftеr stopping defendant in the hallway and detaining him in the apartment (to which he was going anyhow) the officers were justified in making a superficial ("pat") search for concealed weapons. (People v. Mickelson, supra,
*47 [7] A reasonable search without a warrant is valid where it is incidental to a lawful arrest and a seizure, during such a search, of evidence being used in the commission of the crime for which the arrest is made, is permissible. (People v. Winston (1956)
*48 [6b] What information did Inspector Martin have at the time of the arrest? As already stated, he had been told by Nadine Sweem that the marijuana cigarette had been left in the apartment on the preceding evening by a person who, as we have explained, Martin concluded to be defendant. While Nadine Sweem was an unreliable informer and her information of itself did not constitute probable cause for arrest (Willson v. Superior Court (1956)
The subsequent developments however are highly significant. In the course of the "pat" search, the inspector felt articles in defendant's pocket which from his past experience made him suspicious that they were perhaps marijuana cigarettes. As set forth previously, Martin explained his past knowledge as to how mаrijuana cigarettes are carried. The inspector then asked defendant what was in his pocket whereupon the latter "began to sweat very profusely and he remained very pale." We are satisfied that these developments taken together with the other information previously acquired by Martin gave him reasonable cause to believe that defendant had marijuana cigarettes in his pocket and was then committing a felony.[6]
*49 Defendant relies on People v. Ross (1963)
In Perez the court affirmed the dismissal of an indictment because the police had no reasonable cause to believe that defendant (who was arrested for a violation of Health and Safety Code section 11556) had visited a place where narcotics were being unlawfully smoked or used, knowing that such was actually occurring. The evidence showed that defendant could not have possibly known about such activity because it was not going on when he entered the place involved.
[12a] We next turn to defendant's contention that the admission in evidence of incriminating statements made by *50 him constitutes reversible error under the rule announced in People v. Dorado, supra,
The pertinent facts are as follows: Inspector Martin testified that аfter he removed the marijuana cigarettes from defendant's pocket, he showed them to defendant and asked him where he had obtained them. According to Martin "He [Machel] then continued to perspire and remained very pale completed, and he said, `Can't you give me a break?' He said, `My wife is away; she has been in Texas visiting friends or relations and she's expected back very shortly,' and that him becoming involved in something like this might complicate his family matters."
The inspector then had a subsequent conversation with defendant in the apartment. "I asked him where he got the joints or the cigarettes and he stated that he had got them a short time before, a few days before, from a male by the name of Rudy around the Mission district, and that he had gotten eight from him and that these were the remaining three that I had taken out of his pocket. He subsequently changed his story and said that he had gotten them from a woman by the name of Sylvia, who lived up on Bush street."
Following the decision of the Supreme Court of the United States in Escobedo v. Illinois (1964)
The record clearly establishes that when defendant made the above statements, Martin's questioning was no longer investigatory but had focused on defendant as a particular suspect. It is simply beyond argument that after the inspector removed the cigarettes from defendant's pocket there was no doubt in his mind that defendant was guilty. It was at this time that defendant was handcuffed, arrested and thus placed in custody. The interrogation productive of the foregoing statements thereupon followed. Defendant's arrest therefore satisfied the first two conditions of the Dorado rule. *51 "[T]he arrest encompasses two of the circumstances which produced the accusatory stages in the Escobedo and Dorado cases: (1) the investigation is no longer a gеneral inquiry into an unsolved crime but has begun to focus on a particular suspect, and (2) the suspect is in custody." (People v. Stewart (1965)
Has the third condition of the Dorado rule been satisfied? Were the above statements made while the officers were carrying on a process of interrogations that lent itself to eliciting incriminating statements? We recognize that defendant's arrest does not of itself compel a conclusion that the third condition of the rule has been met. [13] As was said in People v. Stewart, supra,
[12b] While the pertinent part of the record is meager, our analysis of it convinces us that although Martin then knew defendant possessed contraband, he was attempting to extract from him information concerning his involvement with it. The entire incident bespeaks a persistence of inquiry on Martin's part. It will be recalled that in the course of the pat search, the inspector repeatedly asked defendant what he had in his pocket. After removing the marijuana cigarettes, "I then showed them to Machel and asked him where he got them." The witness recounted defendant's reaction to the question, his plea for a "break" and his fears as to family complications arising from his involvement "in something like this." The officer pressed the inquiry in a subsequent conversation in thе apartment although the record does not disclose the interval of time between the two. A fair reading of the record induces the conclusion that there was some continuity to the second conversation because defendant gave one answer and "subsequently changed his story." While the questioning sought the source of the contraband, it is clear that it lent itself to establishing defendant's awareness of what he had had in his pocket and his full knowledge of *52 the character of such articles. The interrogation was not casual or merely curious but sustained, dеliberate and meaningful. Assuming that the first inquiry made by Martin after removing the cigarettes from defendant's pocket, as to where the latter obtained them, was not in itself a process of interrogation, nevertheless we conclude that when the inspector pressed the inquiry in the subsequent conversation he carried out a process of interrogations which lent itself to eliciting incriminating statements.
Finally the record fails to show that defendant was advised of his right to counsel or of his absolute right to remain silent or that defendant waived these rights. Since the decision in People v. Stewart, supra,
[12c] We therefore conclude that at least with respect to the defendant's statements in the second conversation, all of the conditions of the Dorado rule have been met and that the admission in evidence of such statements was error. The statements admitted were clearly incriminating in character. Dеfendant in answering the inspector's inquiries in the subsequent conversation as to where he got the cigarettes in each instance admitted not only that he had marijuana in his possession but also that he had been in possession of these and other marijuana cigarettes for some time prior to the time of his arrest. These statements given in response to inquiries using the term "joints" from the addict's argot supported the conclusion not only that defendant knowingly had possession of the cigarettes but that he had knowledge of their narcotic character. These were essential elements of the offense with which he was subsequently charged. (People v. Groom (1964)
In our view the second series of statements constituted a complete acknowledgment of guilt of the crime charged (People v. Ferdinand (1924)
The judgment is reversed.
Molinari, J., and Sims, J., concurred.
Respondent's petition for a hearing by the Supreme Court was denied June 23, 1965. McComb, J., and Mosk, J., were of the opinion that the petition should be granted.
NOTES
Notes
[1] A second count of the information charging defendant with transportation of marijuana (Health & Saf. Code, § 11531) was dismissed by the court prior to trial upon the motion of the district attorney. After appropriate proceedings conducted upon defendant's conviction, the court found defendant not to be a narcotic addict within the meaning of Penal Code section 6451 and thereupon sentenced him to prison for the term prescribed by law.
[2] People v. Mickelson, supra,
[3] People v. Mosco (1963)
[4] People v. One 1960 Cadillac Coupe, supra,
[5] In Ker, supra, after stating that in cases involving federal constitutional rights state court findings are by no means insulated against examination by the Supreme Court for the purpose of determining whether federal criteria as to reasonableness have been respected, the court said: "The States are not thereby precluded from developing workable rules governing arrests, searches and seizures to meet `the practical demands of effective criminal investigation and law enforcement' in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures..." (
[6] The instant case is therefore another example of reliance by an arresting officer on information supplied by an untested and presumably unreliable informer which is justified because of corroborating knowledge acquired from other sources or from the personal observations of the officer. (People v. Prewitt (1959)