NOEL WILLIAM VIRGIL et al., Petitioners, v. THE SUPERIOR COURT OF PLACER COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Civ. No. 12026
Third Dist.
Dec. 12, 1968
268 Cal. App. 2d 127
Among the many things appellant says the People did not prove is the falsity of his claim that he went to the apartment solely to give Alvarado a ride. The fact is that the trial judge did not believe defendant‘s testimony which included his further claim that Alvarado gave him the package to hold. No citation of authority is required to support the basic rule that the trial judge may reject the testimony of a witness if he does not believe that he is telling the truth. Here defendant‘s testimony conflicted with the circumstantial evidence pointing to the fact that defendant went to the apartment to buy marijuana and left there with the narcotic. The judge resolved the factual conflict against defendant and under the circumstances of this case we are bound by his determination. The judgment is affirmed.
Wood, P. J., and Fourt, J., concurred.
Boon, Coffield & Burford, Lyle H. Shattuck, and Roland E. Iverson for Petitioners.
Thomas C. Lynch, Attorney General, Doris H. Maier, Assistant Attorney General, Edward A. Hinz, Jr., and Edward W. Bergtholdt, Deputy Attorneys General, for Real Party in Interest.
PIERCE, P. J. — Petitioners Virgil, Hinegardner and Leggett were charged in two counts for violation of
The sole evidence upon which petitioners were held to answer and upon which both counts of the information rest is certain contraband found and seized during a search (or, as the People contend, during the “taking of an inventory” of the contents) of petitioner Virgil‘s automobile. The question before us is: Did law enforcement officers come by that evidence legally or in violation of petitioners’ constitutional rights? The circumstances which we will relate compel us to reach the latter conclusion.
At approximately 4:40 p.m., March 8, 1968, Officer Ewing of the California Highway Patrol was standing near his patrol car on the eastern outskirts of Loomis, near Taylor Road. Taylor Road is narrow with rises and dips (normal to older county roads in the foothill areas). In the vicinity of the point where Ewing stood, there are a church, a high school and numerous businesses. The officer‘s attention was drawn to the sound of a speeding automobile. He observed a Chevrolet traveling along Taylor Road. It was in view for about a second and a half. During that interval it traveled a distance of from 90 to 100 feet. Ewing estimated its speed at 70 miles per hour. At this point the posted speed limit is 35 miles per
Officer Ewing then commenced an examination of the inside of the Chevrolet. At the preliminary hearing he was asked what his purpose was. He said: “Well, I was inventorying. Q. Did you have a note pad and pencil and . . . [were you] writing down the list of contents? A. No.” That statement should be compared with one made earlier by the officer that he was equipped with “check-off list forms” for inventory purposes.
The officer first opened the glove compartment. There is no evidence that he noted (or inventoried) anything therein. He next examined the bare floorboard of the driver‘s compartment. There he discovered a single seed which Ewing stated he thought was a marijuana seed. Next a pan containing approximately fifteen growing plants was discovered on the
Ewing testified that when he had opened the car door to commence taking his “inventory” Virgil said “I didn‘t have the right to go in his car.” He “challenged” Ewing‘s right. There was no further conversation.
The authority under which Officer Ewing purported to act in “inventorying the contents” of Virgil‘s automobile was the right under
The officer misunderstood the nature and extent of his authority. Although there are cases, to be discussed below, which authorize under proper circumstances the taking of an automobile into custody, after its removal from the highway, and also the taking of an inventory of its contents, the facts above do not describe such a situation.
There is no dearth of case law covering the legality of searches of impounded vehicles. Decisions follow two lines, seemingly parallel, destined, with one noteworthy exception, People v. Upton (1968) 257 Cal.App.2d 677 [65 Cal.Rptr. 103], to meet only at infinity. Since our concern here with either line is somewhat cursory, citation of the cases will be illustrative rather than exhaustive. Both groups pay homage, at least by statement, to the rule that there must be compelling reasons and exceptional circumstances to justify a search in the absence of a search warrant. A warrantless search may be made only when the search is incident to a lawful arrest and is a reasonable search with probable cause. We mention first some of the decisions following a somewhat simplistic
The other group of cases (see e.g., Preston v. United States (1964) 376 U.S. 364 [11 L.Ed.2d 777, 84 S.Ct. 881]; Cooper v. California (1967) 386 U.S. 58 [17 L.Ed.2d 730, 87 S.Ct. 788]; People v. Harris (1967) 67 Cal.2d 866, 871 [64 Cal.Rptr. 313, 434 P.2d 609]; People v. Webb (1967) 66 Cal.2d 107, 114 [56 Cal.Rptr. 902, 424 P.2d 342, 19 A.L.R.3d 708]; People v. Burke (1964) 61 Cal.2d 575, 580-581 [39 Cal.Rptr. 531, 394 P.2d 67]) recognize that custodial possession of an automobile is not an inevitable concomitant of an arrest of the driver. (See particularly the comparison in Cooper v. California, supra, distinguishing its facts from Preston v. United States, supra, and where it is said (at p. 732 of 17 L.Ed.2d): “. . . The search [in Preston] was therefore to be treated as though his [i.e., defendant‘s] car was in his own possession, safe from intrusion by the police or anyone else.“) The decision in People v. Upton, supra, 257 Cal.App.2d 677, is the “noteworthy exception” mentioned above which attempts expressly to draw together the lines of cases cited. Of the former group it says that the court is not “unmindful” of the cases expressing what we will call the “lawful arrest equals the right of removal, equals the right to take into custody, equals the right to take an inventory, equals the right to search” doctrine. It says (on p. 682 of 257 Cal.App.2d)
We go farther. We hold that the Constitution does not permit an otherwise unreasonable search of a car simply because the police have statutory authority to arrest and take an accused before a magistrate plus the right to cause the car to be removed from the highway. To the extent that our earlier holding in Garcia, supra, may indicate an absolute right to take the car into custody it is disapproved.
We are now ready to apply the rules to the facts of the case before us. We will not challenge the bona fides of the decision of Officer Ewing to arrest petitioner Virgil for reckless driving and to take him before a magistrate. We do not even challenge the officers’ right to cause the Chevrolet to be removed from the highway (assuming the car then to have been on a highway). We do challenge and we negate the necessity or the legality of taking the Virgil car into custody. Just as in Preston, supra, the arrest of the defendant (for vagrancy) had no connection with a necessity to take the accused‘s car into custody so there was no necessity here. Virgil had been arrested for a traffic violation; nothing more. Such an arrest alone could “not have justified a search of the car for such search could have had no relation to the traffic violation. (See People v. Blodgett, 46 Cal.2d 114, 116-117 [293 P.2d 57].)” (People v. Moray (1963) 222 Cal.App.2d 743, 746 [35 Cal.Rptr. 432]; see also People v. Molarius (1956) 146 Cal.App.2d 129, 130-131 [303 P.2d 350].) The traffic violation did not involve any forfeiture of the automobile nor was there anything else that had happened which would reasonably justify a search. There was no furtive conduct. Virgil‘s voiced opposition to the searching of his car was natural. It gave no cause for suspicion. (See People v. Gil, supra, 248 Cal.App.2d at p. 193.) The burden was upon the prosecution to justify the search. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [294 P.2d 23].) It was therefore its burden to explain that an impounding of the car was necessary. Virgil was not alone. No reason appears why his friends could not have taken charge of the vehicle. The officers did not consult Virgil‘s wishes or the willingness of his companions to drive the car to a place of safekeeping (the only legitimate purpose under the facts known at the time for which custody could have been taken). In view of the protests of Virgil and the presence of the contraband in the car which the search
Let a peremptory writ of prohibition issue restraining the trial court from any further proceedings in this matter.
Friedman, J., concurred.
REGAN, J.—I dissent.
The preliminary examination in this case was before the Justice Court of the Auburn Judicial District, Placer County. The judge thereof found there was sufficient cause to believe the petitioner‘s guilty of a violation of
After the pursuit by Officer Ewing of the California Highway Patrol, during which he called in two other patrol units to converge on the City of Penryn, the automobile of petitioners was located, stopped and petitioner Virgil, the driver, was placed under arrest for a violation of
Ewing testified that if the driving of a person is reckless, most of the time he takes the driver into custody and then inventories the vehicle; that this action is taken pursuant to a policy adopted by the California Highway Patrol, which its officers are required to follow, and that he followed that policy in the case before us. He testified:
“Q. And what did you do in that connection?
“A. Well, we had the three gentlemen out of the vehicle,
“Q. Will you state to us how you made that inventory?
“A. Yes. I opened the right front door, looked in the glove box, looked in the front seat, and I noticed a marijuana seed on the right front floorboard. There is no carpeting on the floor. I picked up the seed, and I noticed under the right front seat was a small pan containing 15, 12 or 15 small, what appeared to be marijuana plants. And on closer examination I found a charred marijuana seed in the ashtray in the rear of the vehicle.
“Q. Did you take possession at that time, Officer, of the plant[s] that appeared to you to be a marijuana plant[s]?
“A. Yes, I did.”
In People v. Ortiz, 147 Cal.App.2d 248, 250 [305 P.2d 145], the court states:
“Defendant does not question the validity of his arrest. His thesis is that the search was unreasonable and therefore illegal. Hence the contraband that was found was inadmissible in evidence.
“From defendant‘s position in the car, his physical condition, the manner in which the car was parked, and the earliness of the morning hour, the officer could reasonably conclude that defendant was ‘in control of’ the vehicle, and not just a passenger, at the time of the arrest. Hence the officer was entitled to impound the car (
Veh. Code, §§ 585(b)(5) and585.2 ;Pen. Code, § 849 ), and thus take possession of it.“In the circumstances of this case it was not unreasonable for the police officer to make an inventory of the contents of the automobile prior to impounding it. Such inventory was a protection to the owner of the vehicle, the garage owner, and the officer. Since the marijuana was found during the course of making the inventory, it was not discovered as a result of an unreasonable search and therefore it was not inadmissible in evidence.”
In People v. Gil, 248 Cal.App.2d 189, 191-192 [56 Cal.Rptr. 88] (hearing by the Supreme Court denied), the court states:
“The search, which is here attacked as being constitutionally unreasonable, was made incident to a lawful arrest (
“Of course, the search under attack cannot be constitutionally justified by the fact that it did uncover marijuana. (People v. Brown, 45 Cal.2d 640, 643 [290 P.2d 528].) On the other hand it is not necessarily constitutionally vulnerable because it turned up evidence of a crime different from the one which occasioned the search. (People v. Galceran, 178 Cal.App.2d 312, 317 [2 Cal.Rptr. 901].)”
In People v. Garcia, 214 Cal.App.2d 681, 684 [29 Cal.Rptr. 609], this court states:
“’ . . . A police officer is authorized to remove a vehicle from the highway to the nearest garage when he arrests any person driving, or in control of a vehicle for an alleged offense, or where such officer is, by the Vehicle Code or other law, required to take the person arrested immediately before a magistrate.’ (People v. Simpson, 170 Cal.App.2d 524, 530 [339 P.2d 156].) Thus, the officers had a lawful right to impound the car, and they, after Smith and defendant were removed therefrom, took possession of the same for that purpose. At that time, as is the standard practice, the officers proceeded to make an inventory of personal items in the vehicle (People v. Ortiz, 147 Cal.App.2d 248 [305 P.2d 145], wherein defendant was arrested for ‘drunk auto‘). ‘In the circumstances of this case it was not unreasonable for the police officer to make a[n] inventory of the contents of the automobile prior to impounding it. Such inventory was a protection to the owner of the vehicle, and the garage owner, and the officer. Since the marijuana (found by officers in the glove compartment) was found during the course of making the inventory, it was not discovered as a result of an unreasonable search and therefor it was not inadmissible in evidence.’ (P. 250.)” (See also People v. Nichols, 196 Cal.App.2d 223 [16 Cal.Rptr. 328]; People v. Myles, 189 Cal.App.2d 42 [10 Cal.Rptr. 733]; People v. Odegard, 203 Cal.App.2d 427, 431-432 [21 Cal.Rptr. 515].)’
In People v. Moore, 69 Cal.2d 674, 682 [72 Cal.Rptr. 800, 446 P.2d 800], the court said:
“. . . The basic purpose of the exclusionary rule is to deter unconstitutional methods of law enforcement. (Elkins v. United States, 364 U.S. 206, 217 [4 L.Ed.2d 1669, 1677, 80 S.Ct. 1437]; Mapp v. Ohio, supra, 367 U.S. 643, 656 [6 L.Ed.2d 1081, 1090, 81 S.Ct. 1684]; People v. Parham, 60 Cal.2d 378, 385 [33 Cal.Rptr. 497, 384 P.2d 104];
In the circumstances of this case I find nothing unreasonable in the action of the officer in arresting petitioner Virgil and the impounding of the automobile nor in the commencement of the inventory which immediately disclosed contraband. The automobile was in valid police custody and to inventory its contents was lawful and proper. If the majority opinion is saying that the inventory was in fact a search then the holding in People v. Webb, 66 Cal.2d 107, 128 [56 Cal.Rptr. 902, 424 P.2d 342, 19 A.L.R.3d 708], is applicable where, in the concurring opinion, Peters, J., states:
“. . . I feel bound by the rules announced by the Supreme Court . . . in Cooper v. California, 386 U.S. 58 [17 L.Ed.2d 730, 87 S.Ct. 788] . . . [a] search is now permissible without a warrant if the vehicle is in valid police custody. In the instant case the vehicle was undoubtedly in the valid custody of the police. A search was, therefore, proper under Cooper, supra.”
I would deny the writ.
A petition for a rehearing was denied January 6, 1969. Regan, J., was of the opinion that the petition should be granted. The petition of the real party in interest for a hearing by the Supreme Court was denied February 5, 1969.
Notes
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“(h) When an officer arrests any person driving or in control of a vehicle for an alleged offense and the officer is by this code or other law required or permitted to take and does take the person arrested before a magistrate without unnecessary delay.”