Opinion
Rehearing Denied July 27, 1964.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for appellant.
Sam Bubrick, Los Angeles, for respondent.
Retired Justice of the District Court of Appeal sitting pro tempore under assignment by the Chairman of the Judicial Council.
The People appeal from a judgment denying forfeiture of an automobile alleged to have been used in unlawful transportation or to facilitate unlawful possession of a narcotic, marijuana, by an occupant thereof. The ruling was based upon a finding that the incriminatory evidence introduced by plaintiff was the product of an unlawful search and seizure.
The registered owner was William Reulman, notice of seizure and intended forfeiture was given him as required by statute (section 11613, Health and Safety Code) and he answered, denying the charge. The only witness at the trial was Officer Charles Balf of the Pasadena Police Department. Reulman did not testify nor did he appear in person nor was there any explanation of his absence.
On June 7, 1963, one Vroman reported to the police department that he had found a 'fit' consisting of hypodermic needle, spoon, cotton, eye dropper and piece of Reulman, whom we will call defendant, was driving a 1960 Cadillac Coupe (the subject matter of this proceeding) and the officer's reaction was that the man and car did not belong together. The witness was dressed in civilian clothes and using an unmarked police vehicle. Defendant apparently had some reactions of his own for he appeared to be very nervous and Balf saw him looking in his rear view mirror as he drove along.
'THE WITNESS: Well, this subject drove by. Like I stated prior, he looked at me. It was apparent in my mind's eye that he knew I was a police officer. He was very, you might say, jumpy or jittery, even though it was a fleeting moment that he was observed.'
When he arrived at 3207 East Foothill he parked the Cadillac immediately in front, walked around the rear and started east on Foothill. He looked in the window of a barber shop that was in the same block, then he turned and walked back toward the police who were on or near Foothill. They stopped him and asked for an identification and he produced an expired driver's license. When that fact was mentioned he said he knew it but was eligible to re-apply. Defendant was very nervous and was evasive in answering questions. Asked if he was ever arrested, he said 'No.' The police made a record check and found he had been arrested previously; confronted with this fact he said it was approximately ten years ago, and he was arrested by a vice officer. Asked where he was going down the sidewalk he said he was just taking a walk. Later he was asked the same question and said he was doing to the barber shop to see if a friend of his was there.
The witness 'asked him if he had ever been arrested for narcotics' and he said 'no'; shown the 'fit' he said it did not belong to him. Balf asked for 'permissive search of his arm.' 'Well, I would like to look at your arm.' He was wearing a sweater; said, 'O.K.'; 'Would you roll your sweater up on your right arm'; he did so. The witness saw five puncture marks on the inside of the arm at the elbow, which '[i]n many instances * * * is an illegal injection of narcotics * * * a mark commonly found on subjects illegally using narcotics.' The witness had been on the police force for eleven years and had specialized in narcotics for three years of that period, making several hundred such arrests; had had courses of study in the Pasadena Police Department, a course at the Los Angeles Police Department, and extra curricular literature; no objection to his qualification as an expert was voiced by defense counsel. He said that two marks appeared to be two days old and the others a week or two weeks old; later, that the freshest one 'would be very possible within the past 24 hours.' Most addicts use He was then searched and the police found in his right front pocket a small glass bottle containing marijuana. 'What is this?' 'Well, you can't blame me for trying.' He made a confusing statement about obtaining it in Tijuana, taking it thence to Sunnyvale, then 'came down here to attend a funeral and brought this marijuana with him, and he said the day prior to this, his arrest, that he had hidden this bottle of marijuana in a vacant lot on another street.'
From the time defendant left the Cadillac until the bottle was found in his pocket he was never out of sight of the police and he did not pick up a bottle during that period.
Defendant was arrested for possession after making the confusing statements above mentioned.
Though Reulman was arrested, held to answer the charge of possession and procured a dismissal under section 995, Penal Code on the ground that the incriminatory evidence was the fruit of an unlawful search and seizure, that constitutes no bar to recanvassing the same facts in this subsequent proceeding though the real party in interest is the same person. (People v. Joseph, 153 Cal.App.2d 548, 551-552, 314 P.2d 1004; People v. Prewitt, 52 Cal.2d 330, 340, 341 P.2d 1; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23; People v. Van Eyk, 56 Cal.2d 471, 477, 15 Cal.Rptr. 150, 364 P.2d 326.)
The decisive question here is whether the officer had reasonable cause to believe and did believe that defendant had committed a felony at the time of the search--not whether the judge found such cause actually to have existed but whether, upon the information possessed by him, the officer himself had reasonable ground to so believe. 'Reasonable cause has been generally defined to be 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 person is guilty of a crime. [Citations.] Probable cause has also been defined as having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt. [Citations.] It is not limited to evidence that would be admissible at the trial on the issue of guilt. [Citation.] The test is not whether the evidence upon which the officer acts in making the arrest is sufficient to convict but only whether the person should stand trial. [Citation.]' (People v. Crowley, 193 Cal.App.2d 310, 313-314, 14 Cal.Rptr. 112, 114.) An 'honest and strong suspicion' based upon the facts in hand is adequate basis for a search.
Section 836 Penal Code says that an arrest may be made by an officer without a warrant (there was none here):
'3. Whenever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.' As will be seen, the officer at the time of arrest had reasonable cause to believe that defendant had committed a felony, i. e., possession of heroin.
There were two steps leading to this search which should be differentiated and the difference kept in mind--first, the interviewing of defendant and, second, the examination of his person, the search.
Circumstances short of probable cause may afford adequate basis for questioning a pedestrian, either at night or in the daytime. In Hood v. Superior Court, 220 A.C.A. 241, 244, 33 Cal.Rptr. 782, 784, the court said: 'The California rule, that merely stopping a car in the course of a criminal investigation does not require that there be reasonable grounds for the arrest of the occupants, was recently reaffirmed in People v. Mickelson,
People v. Mickelson,People v. Cowman, 223 A.C.A. 110, 118, 35 Cal.Rptr. 528, 534: 'The rationale of all these decisions is that an officer of the law, employed to maintain the peace and to prevent crime, as well as to apprehend criminals after the fact, has both the right and the duty to make reasonable investigation of all suspicious activities even though the nature thereof may fall short of grounds sufficient to justify an arrest or a search of the persons or the effects of the suspects. Experienced police officers naturally develop an ability to perceive the unusual and the suspicious which is of enormous value in the difficult task of protecting the security and safety of law-abiding citizens. The benefit thereof should not be lost because the cold record before a reviewing court does not contain all the particularized perceptions which may have been so meaningful at the scene.'
People v. Gonzales, 214 Cal.App.2d 168, 172, 29 Cal.Rptr. 318, 321: 'Under such circumstances the information was not sufficient to constitute reasonable cause for entering appellant's apartment. The information was sufficient, however, to justify the officers in making an investigation by going to the apartment and seeking an interview with defendant.'
People v. Mickelson, 59 Cal.2d 448, 450, 452, 30 Cal.Rptr. 18, 20, 380 P.2d 658, 660: 'We do not believe that our rule permitting temporary detention for questioning conflicts with the Fourth Amendment. It strikes a balance between a person's interest in immunity from police interference and the community's interest in law enforcement. It wards off pressure to equate reasonable cause to investigate with reasonable cause to arrest, thus protecting the innocent from the risk of arrest when no more than reasonable investigation is justified.'
See also People v. One 1955 Ford Victoria, 193 Cal.App.2d 213, 215, 13 Cal.Rptr. 910; People v. Davis, 188 Cal.App.2d 718, 721, 722, 10 Cal.Rptr. 610; People v. King, 175 Cal.App.2d 386, 390, 346 P.2d 235; People v. Symons, 201 Cal.App.2d 825, 830, 20 Cal.Rptr. 400.
When Officer Balf, apprized of the recent hiding of familiar aids to injection of heroin, saw defendant driving down the alley adjoining the premises where the cache was hidden, nervously looking back at the officers in Vroman's yard, driving around the block in order to park in front of that same property, immediately in front of the 'fit' which someone had concealed there, walking up the street a little way and then back again they certainly had 'some suspicions or unusual circumstance to authorize' the slight interference with defendant's privacy which would be involved in an interview with him. Such an interview as was had here falls substantially short of an arrest or a search. (See People v. King, 175 Cal.App.2d 386, 390, 346 P.2d 235.) During its progress further facts developed which warranted a search, though in fact no search of the arm was People v. Burke,
The judge remarked: 'This Court doesn't place too much credence in the testimony of the officer with reference to his observations as to what happened in the rear view mirror or how the individual impressed the officer as he was walking in the direction toward his car.' We suggest that the posture of the body and head of one who is looking through the mirror to see what is happening behind may readily suggest what he is doing without his eyes being actually seen by the observer. Of course, it was within the province of the trial judge to reject this part of the testimony, but when that was done there was ample remaining evidence sustaining the propriety of the officers' seeking an interview with defendant.
When, in addition to other information possessed by the officer, the tell-tale injection marks were discovered, indicating recent injections of heroin into defendant's arm, sufficient basis for a search existed to the knowledge of the officer. He now has a well grounded suspicion of recent possession of heroin by defendant, a felony (Health and Safety Code, section 11500) and the conditions of section 836, subdivision 3 have been met fully. (See People v. Elliott, 186 Cal.App.2d 178, 182, 8 Cal.Rptr. 795; People v. Rios, 46 Cal.2d 297, 298-299, 294 P.2d 39.)
In People v. Elliott, supra, 186 Cal.App.2d at page 182, 8 Cal.Rptr. at page 798, it is said: 'Upon entering the room, the officer observed 'fresh hypodermic needle marks' on the appellant's left arm. The appellant, upon inquiry, said that he was not using narcotics, although he formerly did, and that his 'last fix was about two weeks ago.' In the light of such facts, there was probable cause for the arrest which then ensued.'
In People v. Rios, 46 Cal.2d 297, at pages 298-299, 294 P.2d at page 41, Mr. Justice Traynor stated: 'From defendant's admission that he had taken an injection of heroin two weeks before it could be inferred that he had possessed heroin in violation of Health and Safety Code section 11500. Moreover, since the validity of an arrest does not depend on whether the defendant may in fact be found guilty of the offense for which he is arrested [citations], and since in determining its validity the court is not limited to a consideration of evidence that would be admissible at the trial on the issue of guilt [citations], it is immaterial that defendant could not be convicted of possessing heroin without independent proof of the corpus delicti.' [Citations.]'
In People v. Symons, 201 Cal.App.2d 825, 830, 20 Cal.Rptr. 400, 404: 'As stated in People v. Williams, 196 Cal.App.2d 726, 728, 16 Cal.Rptr. 836, 837: 'The rule should not be understood as placing the ordinary man of ordinary care and prudence and the officer experienced in the detection of narcotics offenders in the same class. Circumstances and conduct which would not excite the suspicion of the man on the street might be highly significant to an officer who had had extensive training and experience in the devious and cunning devices used by narcotics offenders to conceal their crimes.''
The search revealed an aspirin bottle containing marijuana, found in defendant's pocket. Asked 'What is this', he said, 'Well, you can't blame me for trying.' That the marijuana had been transported in the Cadillac follows inevitably from the fact that the defendant was not out of sight of police from the time he drove into Foothill Boulevard until after he had descended from the car and it was discovered in his pocket.
In effect the trial judge held that the arresting officer did not act reasonably in concluding that he had good ground for a search. The formal finding so implies: 'That said vehicle was seized incident to an unlawful arrest in that there was a lack of probable cause for the arrest of the owner WILLIAM L. REULMAN.' (See People v. Diggs, 161 Cal.App.2d 167, 171, 326 P.2d 194; People v. Sanson, 156 Cal.App.2d 250, 254, 319 P.2d 422; People v. Bruno, 211 Cal.App.2d Supp. 855, 862-863, 27 Cal.Rptr. 458; People v. Cedeno, 218 Cal.App.2d 213, 220, 32 Cal.Rptr. 246.) But the real question, as above indicated, is whether the officer acted reasonably in his weighing the facts in hand even though he was mistaken, rather than whether in fact, viewing the evidence as the trial judge viewed it, probable cause for search existed. This is implicit in the established rule that reasonable cause for search is a question of fact for the jury in cases where
People v. Paul, 147 Cal.App.2d 609, 619, 305 P.2d 996, 1002: 'Appellant concedes that as a general proposition of law, 'it is correct to state that probable cause is a question of law to be decided by the trial court rather than the jury', but contends, and rightly so, that this rule is applicable only where there is no conflict to be decided by the court. [citations] As was said by this court in Aitkin v. White, supra, 93 Cal.App.2d at page 141, 208 P.2d at page 791: 'When the facts are controverted or the evidence conflicting, then the determination of their legal effect by the court is necessarily hypothetical, and the jury are to be told that if they find the facts in a designated way, then such facts do or do not amount to probable cause. (Citing cases.)' * * *
'In determining whether the issue of probable cause is one for the court or for the jury care must be taken to consider what types of conflicting evidence regarding probable cause require submission to the jury for determination of the facts upon which probable cause for arrest is based. This, because it is well established in our law that in determining this question, the court looks only at the facts and circumstances presented to the officer at the time he was required to act [citations]. The conflict must concern the existence of the facts and circumstances upon which the officer based the arrest, and not such conflicts as are created by subsequent events.'
The trial court, whether the hearing be with or without a jury, weighs the evidence upon this issue (People v. Lindogan, 212 Cal.App.2d 466, 469, 27 Cal.Rptr. 905) but only to the end of determining whether it is sufficient to warrant a holding that the officer entertained the sort of suspicion which is equated with reasonable cause and hence was justified in acting upon it.
See also People v. Mateo, 171 Cal.App.2d 850, 856, 341 P.2d 768; People v. Silvestri, 150 Cal.App.2d 114, 117, 309 P.2d 871; People v. Brown, 147 Cal.App.2d 352, 356, 305 P.2d 126.
In the instant case the evidence upon this question of probable cause was without conflict; one witness only. Defendant's failure to appear and testify raised an inference that if he had done so his testimony would have emphasized that of his opponent, the People. (Bertelsen v. Bertelson, 49 Cal.App.2d 479, 483, 122 P.2d 130; People v. Adamson, 27 Cal.2d 478, 489, 165 P.2d 3; 18 Cal.Jur.2d, section 99, page 530; 14 Cal.Jur.2d, section 116, page 332.) In holding that there was no reasonable cause for the search here involved the trial court erred as a matter of law.
It well may be that the trial judge subconsciously rebelled against imposing the harsh penalty of forfeiture of a Cadillac automobile as punishment for transporting in it marijuana of volume which could be contained in an aspirin bottle. With this reaction we are in sympathy. But the law is clear. As said in People v. One Ford Coupe etc., 10 Cal.App.2d 321, 323, 51 P.2d 882, 883: 'If a forfeiture for the transportion of such a small quantity of narcotics seemed a drastic penalty, it nevertheless was a matter within the domain of the Legislature, and was not a matter to guide the judgment of the court.'
See also People v. One 1940 Buick 8 Sedan, 70 Cal.App.2d 542, 546, 161 P.2d 264; People v. One 1940 Buick Sedan, 71 Cal.App.2d 160, 164, 162 P.2d 318; People v. One 1959 Plymouth Sedan, 186 Cal.App.2d 871, 874, 9 Cal.Rptr. 104.
The judgment is reversed.
FOX, P.J., and HERNDON, J., concur.