People v. Cockrell

Ivy and Leroy Cockrell, husband and wife, waived a jury trial and were found guilty by the court of sale of marijuana on January 29, 1963, possession of marijuana for sale on February 18, 1963, and conspiracy to sell marijuana. In addition Ivy but not Leroy was found guilty of sale of marijuana on February 18, 1963. Other co-defendants were convicted of various offenses, but the Cockrells alone appeal from the judgments.

They contend that evidence was obtained by an unlawful search of their home and car, that the evidence is insufficient to support their conviction of conspiring to sell marijuana, that statements by Mrs. Cockrell were inadmissible under Escobedo v. Illinois, 378 U.S 478 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ], and that it was error to admit evidence of an accusatory statement and Mr. Cockrell’s response thereto. We have concluded that none of these matters warrants a reversal of the judgments.

Thomas Greene, an undercover narcotics agent, was introduced to codefendants Leslie Foreman and Willie Goodjohn by an informant, and Greene told them that he was interested in buying narcotics. Several days later Greene saw Foreman and another codefendant, Bernice Phillips, and Greene asked Foreman, “What about this deal?” Foreman replied, “It is a $140 for a brick [a term used in narcotics terminology to refer to 2.2 pounds].” Greene said that he did not have $140 and wanted to buy a pound. Miss Phillips said that “he wouldn’t go for a pound,” that she had made the deal for $140 for a brick, and that “he might get hinky” if she changed. After further discussion it was agreed that Greene would pay $100 and Miss Phillips would add to this

Following the search at the Cockrells’ home Burley and other officers arrested Mr. Cockrell in the county courthouse. They then Avent with him to his ear, which was parked in a lot nearby. He denied having any contraband in the car and Avhen asked by the officers if they could look he replied, “Yes.” Inside the ear underneath the back seat the officers found marijuana seeds.

Mr. Cockrell, testifying in his own behalf, denied selling marijuana to anyone on January 29, 1963, and in general denied knowledge of the marijuana found at his home and in his ear. He further testified to the following effect: He and his wife lived alone in their home. The trash cans in which marijuana was found were also used by a tenant, who lived on the rear of their property. Mr. Cockrell had seat covers put on his car in January 1963 and from the time this work was done until the officers removed the back seat of his car so far as he knew the seat had not been moved. He had known Miss Phillips about six years but had not seen her for over two years before his arrest.

Defendants contend that the court erred in admitting, over objection, the evidence found in the search of their house and yard. It does not appear that the law enforcement officers had a search warrant, and in the absence of such a shoAving we

The arrest of Mrs. Cockrell was lawful, and it is necessary to consider whether the search was incident thereto. It appears that part of the search was conducted before she was placed under arrest. Cases in this state have held that if before making a search and seizure officers are justified in making an arrest it is immaterial that the search and seizure preceded rather than followed the arrest. (E.g., People v. Torres, supra (1961) 56 Cal.2d 864 , 866; Willson v. Superior Court (1956) 46 Cal.2d 291 , 294 [ 294 P.2d 36 ]; People v. Simon (1955) 45 Cal.2d 645 , 648-649 [ 290 P.2d 531 ].)

The United States Supreme Court stated in Ker v. California (1963) 374 U.S. 23 , 43 [ 83 S.Ct. 1623 , 10 L.Ed.2d 726 ], that it was unnecessary to reach the question of the status of this rule under the federal Constitution in view of certain circumstances there present, and subsequent decisions by that court have not decided the question. Decisions by the United States Supreme Court before and after Ker have stated that a search may be incident to an arrest where, among other things, it is “contemporaneous” or “substantially contemporaneous” with the arrest. (Agnello v. United States (1925) 269 U.S. 20 , 30 [ 46 S.Ct. 4 , 70 L.Ed. 145 , 51 A.L.R. 409 ]; United States v. Rabinowitz (1950) 339 U.S. 56 , 61 [ 70 S.Ct. 430 , 94 L.Ed. 653 ]; Stoner v. California (1964) 376 U.S. 483 , 486-487 [ 84 S.Ct. 889 , 11 L.Ed.2d 856 ]; Preston v. United States (1964) 376 U.S. 364 , 367 [ 84 S.Ct. 881 , 11 L.Ed.2d 777 ].) This language clearly does not preclude the possibility that a search preceding an arrest may be incident thereto.

At least two lower federal courts have concluded that a search preceding an arrest may be incident thereto where probable cause existed at the outset and the arrest and search are nearly simultaneous and constitute for all practical purposes but one transaction. (Holt v. Simpson (1965) 340 F.2d 853 , 856; see United States v. Cangelose (1964) 230 F.Supp. 544 , 550; but see Lee v. United States (1956) 232 F.2d 354 , 355-356 [ 98 App.D.C. 97 ]; Hurst v. California (1962) 211 F.Supp. 387 , 392 [reversed on other grounds 381 U.S. 760 [ 85 S.Ct. 1796 , 14 L.Ed.2d 713 ]; United States v. Royster (1961) 204 F.Supp. 760 , 762-763.) Holt pointed out that “To

In our opinion the search of the Cockrells’ house and yard was “substantially contemporaneous” with Mrs. Cockrell’s arrest, and the fact that she was not formally placed under arrest until after the search was commenced is immaterial.

In order to be incident to an arrest a search must also be limited to the premises where the arrest is made, have a definite object, and be reasonable in scope. (People v. Cruz, 61 Cal.2d 861 , 866 [ 40 Cal.Rptr. 841 , 395 P.2d 889 ].) Here the search was limited to the premises where the arrest was made, appears to have had a definite object, namely the finding and seizure of contraband and fruits or instrumentalities of the crime, and was reasonable in scope. (Cf. Harris v. United States, 331 U.S. 145 , 148 et seq. [ 67 S.Ct. 1098 , 91 L.Ed. 1399 ].) We are satisfied that the court did not err in admitting the evidence found at defendants’ home.

Defendants’ claim that the judgment should be reversed because the marijuana in the car was obtained by an unlawful search is without merit. At the trial no objection on this ground was made to the marijuana found in the car, and ordinarily the ad3nissibility of evidence will not be reviewed on appeal in the absence of a sufficient objection in the trial court. (People v. Robinson, 62 Cal.2d 889 , 894 [ 44 Cal.Rptr. 762 , 402 P.2d 834 ]; People v. Richardson, 51 Cal.2d 445 , 447 [ 334 P.2d 573 ].) Moreover, Mr. Cockrell consented to the search of the ear, and the fact that he was then under arrest does not show as a matter of law that his consent was not voluntarily given. (People v. Fischer, 49 Cal.2d 442 , 448 [ 317 P.2d 967 ].)

We do not agree with defendants’ contention that the evidence is insufficient to support their conviction of conspiring to sell marijuana. A criminal conspiracy exists when two or more persons agree to commit a crime and do some overt act in furtherance of the agreement. (Pen. Code, §§ 182, 184; People v. Van Eyk, 56 Cal.2d 471 , 478 [ 15 Cal.Rptr. 150 , 364 P.2d 326 ].) It need not be shown that the parties met and actually agreed to jointly undertake criminal action. (People v. Calhoun, 50 Cal.2d 137 , 144 [ 323 P.2d 427 ].) The agreement may be inferred from the conduct of the defendants in mutually carrying out a common purpose in violation of a penal statute. (People v. Causey,

The court admitted against Mr. Cockrell, over objection, testimony by Officer Burley regarding an accusatory statement and Mr. Cockrell’s response thereto. Burley’s testimony was to the following effect: At the station Miss Phillips stated in Mr. Cockrell’s presence that around January 29 she went to his residence and asked him if she could buy marijuana from him, that he said that she could, that she told him she would return about 6 p.m., that he said that he would not be there but his wife would give it to her, that she thereafter returned and purchased marijuana from Mrs. Cockrell, and that she again went to the residence on February 18 and bought more marijuana from Mrs. Cockrell. Burley asked Mr. Cockrell what he had to say about “that,” and Mr. Cockrell remained silent.

Later in the trial, after Burley had given the foregoing testimony, Mr. Cockrell testified that the reason he had remained silent in response to the accusatory statement was that his attorney in another matter had told him never to say anything when he was in trouble until he had legal advice. Thereafter defense counsel did not renew his objection to Burley’s testimony relating to the accusatory statement and made no motion to strike it.

At the time of the trial the United States Supreme Court had not rendered its decisions in Malloy v. Hogan (1964) 378 U.S. 1 [ 84 S.Ct. 1489 , 12 L.Ed.2d 653 ], and Griffin v. California (1965) 380 U.S. 609 [ 85 S.Ct. 1229 , 14 L.Ed.2d 106 ]. Griffin held that the California constitutional provision permitting comment on the failure of the defendant to testify (Cal. Const., art. I, § 13) was unconstitutional because it violated the Fifth Amendment privilege against self-incrimination made applicable to the states in Malloy by the Fourteenth Amendment. Griffin declared (at p. 614) that such comment “is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. ’ ’

The rationale of Griffin implicitly proscribes drawing an inference adverse to the defendant from his failure to reply