*1 Apr. No. 7295. Bank. [Crim. 1963.] PEOPLE, Appellant, THE Plaintiff and v. CURTIS RAY
MICKELSON, Defendant and *2 Stanley Attorney Mosk, General, James, William As- E. Attorney McKesson, William General, sistant B. District At- Harry torney, Harry Deputy Sondheim, Wood and District Attorneys, Appellant. Plaintiff Gladys Eugene Philip Root, McPherson Towles V. C. for Defendant and Greenwald
TRAYNOR, J. charged in Defendant was two counts of committing burglaries an information telephone with booths, Code, in violation of Penal section His motion 459. to set granted (Pen. aside information 995), was Code, § People appeal. Attorney The concedes General that there hearing no preliminary support evidence at the to count I only and seeks reversal II. as count A physical Burbank officer discovered the evidence supporting searching overnight count II in the an course bag under the found front seat of automobile in an which riding had Zauzig defendant been and which Don driving. bag nickels, dimes, contained quar- $85.90 preliminary hearing, bag ters. At defendant’s and its contents in evidence, were introduced testified to his burglary. Zausig’s and defendant’s commission availability arrest and his as a witness were direct results physical the search that burglary. disclosed the evidence of the illegal, physical If search was neither the evidence nor Zauzig’s testimony competent support the information.
450 385, States, 392 251 U.S. v. United (Silverthorne Lbr. Co. 1426, ; 321, 24 A.L.R. 319, 182, 1428] 64 L.Ed. S.Ct. [40 269, States, 321, 330-331 S.Ct. 308 v. [60 Weiss United States, 338, 308 U.S. Nardone v. United 303];
84 L.Ed. Wong v. ; Sun 84 L.Ed. 311-312] 341 S.Ct. [60 407, 417, 9 L.Ed.2d U.S. 471 United [83 ; People Berger, P.2d ; 509] v. [282 441] People Dixon, People 557]; P.2d v. 46 Cal.2d [296 96, 101-102 P.2d Schaumloffel, 53 Cal.2d [346 Cal.Rptr. 165, 369 415, 439 People Ditson, 57 Cal.2d however, contends, Attorney General Zauzig for a recent rob- to arrest had reasonable cause the car was neighborhood the search of bery in and that Before the de- justified incidental to arrest. therefore as Mapp of the States cision 1081], we Ohio, 6 L.Ed.2d an under the California determine such issue were free to police investiga- setting the rules forth decisions holding in that ease that the and arrests. view tions un- requires courts to exclude Amendment Fourteenth evidence, determine at the we must obtained investiga- governing police rules whether the federal outset *3 There are superseded our own. and arrests have tions respective rules that are significant differences between the to this ease. relevant Henry States, 168, 98, 361 103 S.Ct. v. United U.S. [80 Supreme held 134, 139], the States 4 L.Ed.2d United stopped during when an an arrest occurs automobile that if investigation, the officer does criminal the course occupant time, reasonable cause to arrest not have Anything the officerlearns as result arrest is unlawful. stopping is inadmissible in evidence and the automobile (See Brinegar States, v. justify a search. also United cannot 1302, 1879, ; 160, L.Ed. Rios 166 S.Ct. 93 338 U.S. 1885] [69 States, 253, 1431, 4 364 261-262 S.Ct. v. United U.S. [80 1688, 1693-1694].) state, however, In this L.Ed.2d prob consistently held that circumstances short of we have may justify an an cause to make arrest still officer’s able pedestrians question stopping or motorists on the streets for may self-protection warrant ing. it, If the circumstances suspect alight from automobile or to request an submit weapons. superficial for concealed search Should the probable arrest, an investigation then reveal cause to make
451 may suspect officer arrest the and conduct inci reasonable (People Simon, 645, dental search. v. 45 Cal.2d 650 [290 People ; Martin, P.2d v. 46 Cal.2d 108 P.2d 531] [293 People 52]; Blodgett, 46 ; v. 117 P.2d [293 57] People Beverly, Cal.App.2d 200 Cal.Rptr. v. 125 [19 People 67]; King, Cal.App.2d 386, 175 390 [346 People Anushevitz, Cal.App.2d 752, 183 755 Cal. [6 Rptr. 785].) Mapp ease did determine whether or not the states must all the federal follow rules. Neither did Elkins v. States, 1437, 1453, United 4 L.Ed.2d 1669], only which on this matter held the conduct of against state officers would be measured the federal rules when state-secured evidence prose- was offered federal cutions. governing police A procedure state rule is not uncon merely permits
stitutional because it conduct which a fed may lawfully engage. eral The Fourth Amendm ent1 itself forth sets no more than the basic outlines of meaningful lawful law It enforcement. becomes specific only by situations reference to statutory the common law and law the issuance of warrants, authority power officers, Illegally to arrest. obtained evidence may by be excluded the federal courts for various reasons. may It be excluded because it way obtained could not be may authorized. It be excluded because it was obtained in violation of a federal statute or applicable common-law rule a state rule to federal may by officers. It be Supreme excluded virtue Court’s monitorship of the federal administration of justice. criminal (Fed. Proc., 3, 4, 26, R. 41; Crim. pp. App., U.S.C. 3407- (1958).) United interpreted States Court has not Fourth requiring Amendment as dtay that court to down as a matter of precise constitutional law rules of conduct. Indeed, allowing its rule a search a federal officerwithout a warrant permits as incident to a lawful arrest reference to validity law to (Johnson determine the of the arrest. 92 L.Ed. *4 1 ‘ right people persons, houses, papers, to be secure their effects, against seizures, unreasonable searches and shall not be violated, issue, upon probable cause, supported and no Warrants shall but by affirmation, particularly describing Oath place or the to be ’’ searched, persons things or to be seized. Re, Di United States Accordingly, "before state rule 92 L.Ed. appear may down, it must police be struck governing conduct legislature authorize Congress nor a state could that neither police adopts conduct consistent with rules it. If and if its officers requirements the Fourth Amendment unreasonably rules, they not do act within the
follow those meaning although may different rules of the amendment govern federal officers. permitting temporary rule
We do believe our questioning with the Fourth Amend for conflicts detention person’s in im between interest ment. It strikes balance community’s munity from interest interference pressure equate to law enforcement. It wards off reason investigate arrest, to to thus able with reasonable cause cause when protecting risk of arrest no more the innocent (See Barrett, Per justified. than reasonable Amendment, Rights, Property Rights, sonal and The Fourth Sup.Ct. 46, 65-66,69-70.) Rev. apparently The United States concluded that presented Henry, Rios, the situations in the Brinegar ground (see dissenting opinion cases allowed no middle Brinegar Jackson, J. 1894]), 93 L.Ed. and hence justified stopping officers were the defendants’ auto- they probable unless had make mobiles cause to arrests. It does not conclusion was com- follow its legislation, the had pelled. court Given absence compliance rule articulate and enforce with it. thereby Congress It states from did not foreclose artic- ulating other rules with the reasonable consistent Fourth Amendment. the search in this case to determine whether remains It complied of this state. The with the rules Zauzig shortly defendant and before that he arrested
testified gone after to a market on 20 minutes he had 2 a.m. about reported. just Road where Fernando San officers the market that the robber other He told large with dark hair fairly white man of tall build was a with a auto wearing armed .45 red sweater who was on foot about 10 area officer searched the matic. area. wider returned to his ear search minutes and then from the blocks driving on about six west Providencia While him wagon coming with two a station market he saw *5 large appeared a man persons in The driver to be white it. wearing jacket. a sweater or The officer hair red with dark wagon turn south on station San Fernando toward saw the the alley market, south into an and then and he turned west turn west wagon next He then saw the station at the street. on street followed it. Fernando the same and The San wagon went to the end of the street where it came station proceeded U-turn, back deadend, to a made and right The officer circled a block to his and San Fernando. on He then a block or turned south San Fernando. was two traveling wagon, the station which south on behind was San per or 30 Fernando at about 25 miles hour. The officer over- wagon passenger took the station observed the “bend and up.” and seat, forward the forward down and raise back wagon pulled He turned on his red the station light, over parked stopped, and officer He behind it. radioed headquarters requested backup his location to for and ear got Zauzig assistance. Meanwhile out the driver’s seat of wagon the station and walked to the officer’s car. The officer Zauzig going, Zauzig him he where he was and told asked going Glendale, was home to he more or lost, that was less driving up and looking had been and down sidestreets for the freeway. He showed the officer his driver’s license. The assisting arrived, Zauzig officers and the officers and walked wagon. sitting right to the station Defendant was the front got request. out on seat and under the officer looked right front on seat and under the floorboards saw an and overnight bag right pulled front stuffed the He seat. unzipped out, it pair it, drivers, flashlight, saw four screw gloves of canvas and two socks. One sock was knotted top something jingled. at the and was filled with When bag the car, Zauzig he took out officer asked what Zauzig was, equip- it told him that it was his basketball ment. sock, Zauzig asked what was opened told him that he had some dimes. The officer nickels, quarters. dimes, sock and found He arrested suspicion Zauzig and on burglary. defendant The officer nothing also testified that there was in his conversation with Zauzig perpetrated that would indicate that he had friendly. other than he acted bit The movements of occupants the car were such that it was obvious that the were trying either to evade the officer or were confused and did very purpose examining not know area well. His bag “possibility gun being was the of a there.” After he Zauzig they and defendant was satisfied had talked to he robbery. in the had not involved been stop Zauzig’s not unreasonable for the officer to It was car precautions for to take reasonable his for safety. probable cause, however, own did not have He robbery. arrest There could have more than wearing man one tall with dark hair red sweater white night metropolitan Although in such a area. Zau- abroad zig vicinity robbery, was was not observed driving when he until 20 minutes after it occurred about *6 away crime, of the from it. the scene The officer no that the had an information robber automobile or erratic car confederate. The route of the and defendant’s suspicious movement the seat were at most circumstances. upon request elicited identification officer’s story and a consistent with the movements of the and car the officer’s own assessment of movements. Both those occu- pants away any weapons might were car out interrogating have been concealed Zau- Instead therein. zig respect requesting defendant with to the accompany them to the officers the few to the market blocks possible for through identification, rummage the officer elected to baggage hope closed found in ear turn- ing up might robbery. evidence that with connect investigation. That search exceeded the of reasonable bounds justified by probable It was an arrest, to make cause justified by Brown, up. (People it cannot be what it turned 643-644 The order is affirmed. Schauer, Gibson, Tobriner, J., J., O. J., Peek, J., con- curred.
PETERS, J.I
concur.
agree
I
that the search here
illegal,
involved was
both under
Therefore,
agree
federal
law.
state and
I
the order
appealed
But,
from must be
my
opinion,
affirmed.
such
unnecessary
holding
scope
makes it
impact
to discuss the
Mapp Ohio,
on state
of the decision of
law
P. J. BREWSTER, Defendant, Cross- E. lants, v. GERALD complainant and