People v. Waller

—Defendant has appealed from a judgment sentencing him to state prison following a jury verdict which found him guilty of possession of marijuana in violation of section 11530 of the Health and Safety Code. He asserts as error-. (1) that there was a prejudicial use of evidence obtained through an illegal arrest, search and seizure because there was no probable cause for his arrest; (2) that there was a prejudicial use of evidence obtained through an illegal search of the vehicle he was operating because it was searched without a search warrant at a time and place remote from the arrest; (3) that there was a failure to establish a proper foundation for the use of that evidence because of discrepancies in the testimony concerning the chain of possession; (4) that the court improperly permitted the prosecution to cross-examine the defendant regarding’ the details of Lis prior conviction; and (5) that there was no substantial evidence to indicate that defendant had knowledge of the presence of the substance found in the vehicle.

An examination of these contentions in the light of the record and the applicable law fails to reveal any prejudicial error, and the judgment must be affirmed.

The Facts

On the evening of September 16, 1966, defendant, Doyle Waller, Dennis Stenisrud and Candice Rice began a trip from San Francisco to Big Sur in defendant’s employer’s white Dodge truck.

Prior to leaving for Big Sur, they drove to Stenisrud’s apartment. Stenisrud and Miss Rice went upstairs, while defendant waited in the truck. At the apartment, they were joined by one David Krstich. They brought down camping gear for the trip. Miss Rice had a large leather purse, a

On the trip down to Big Sur, Miss Rice became aware that there was marijuana, in addition to her own, in the truck. The defendant, who did all the driving on the trip, picked up a can that was in front of the truck, and “took a joint out of it.” According to Miss Rice, he then lit it, and passed it to her. Miss Rice did not know to whom this marijuana belonged. She had not seen the defendant bringing any marijuana into the car. During the trip down, the four people apparently smoked the marijuana, without concern for its source.

The group spent the night of September 16, 1966 camping in the truck at Big Sur. The next morning, thejr drove to Monterey, for breakfast, arriving there at about 11 a.m. On the trip to Monterey, the group smoked marijuana.

Shortly after breakfast, the group went to a pipe shop to purchase some pipes. Defendant purchased a black, fish-shaped pipe. They all returned to the van and filled their pipes. Defendant filled his pipe from what Miss Rice thought was the little can in the front of the truck. However, since she was busy filling her own pipe she could not be sure of this. The group smoked the pipes, and defendant was smoking his until some time prior to his apprehension by the police.

At approximately 12:30 p.m., one of the members of the group offered a ride to two young hitchhikers, Layne McGraw and Dennis Johanson. During the course of the ride, from Monterey to Pacific Grove, one of the group offered the hitchhikers some “pot.” Dennis Johanson observed the defendant take a puff from a pipe that Miss Rice passed around.

Some four or five minutes after being dropped off at Pacific Grove, the hitchhikers located a police officer, and described to him what had occurred in the van. Shortly after the conversation with the hitchhikers the officer saw the white van. He stopped it and searched it under circumstances reviewed below. The contraband found was admitted in evidence at the trial over the objection of defendant.

Defendant testified in his own behalf. He indicated that Stenisrud and Miss Rice had “sleeping bags and long white cushions and box and they had some extra clothing and some

The evidence shows that the police officer was contacted by the boys while he was on routine patrol. The Johanson boy lived near the police station. The officer testified that he knew the Johanson boy “fairly well.” He had known him for about a year and a half, “generally as a person that had never been in trouble.” The officer had never before received information from the boy upon which he had acted.

The boys told the officer of the incident described above. They indicated that they had been offered a ride in a white van; that three men and a woman were in the van; that during the course of the ride they were offered “pot”; that the odor emanating from the pipe that was passed around was “unusual,” unlike any tobacco; that the girl in the van had long stringy hair and was wearing an “orangish” sweatshirt, brown cord pants and sunglasses; and that the van proceeded on toward Asilomar after they got out.

When the officer saw a white van he followed it. As he pulled behind it, he was able to see four people, three males in front, and the girl in the rear. The girl’s hair and blouse matched the description given by the boys. The officer stopped the vehicle, and as he was walking toward the driver’s side he noticed the girl rummaging around the right hand corner, and the man in the front center seat putting something under the seat. The officer requested identification from the occupants, and asked the defendant, who was driving, for the vehicle registration. The defendant presented an expired license, and according to the officer “that was the only identification I was able to get from him or anyone in the vehicle,” No registration was produced for the vehicle.

Since the arrest was made without a warrant, the burden rested upon the prosecution to show proper justification. (Tompkins v. Superior Court (1963) 59 Cal.2d 65 , 67 [ 27 Cal.Rptr. 889 , 378 P.2d 113 ]; People v. Rodriquez (1966) 242 Cal.App.2d 744 , 747 [ 51 Cal.Rptr. 873 ].)

Where information is received from an informer of unknown relaibility, that information alone will not serve to establish probable cause for a subsequent arrest. (People v. Goodo (1956) 147 Cal.App.2d 7 , 9-10 [ 304 P.2d 776 ]; and see People v. Amos (1960) 181 Cal.App.2d 506 , 508-509 [ 5 Cal.Rptr. 451 ].) On the other hand, “In dealing with the problem of informants whose information may or may not be sufficient to create probable cause, it should be noted that a citizen who purports to be the victim of or to have witnessed a crime is a reliable informant even though his reliability has not theretofore been proved or tested. (See People v. Lewis (1966) 240 Cal.App.2d 546 , 550 [ 49 Cal.Rptr. 574 ]; People v. Griffin (1967) 250 Cal.App.2d 545 , 550 [ 58 Cal.Rptr. 707 ].)” (People v. Gardner (1967) 252 Cal.App.2d 320 , 324-325 [ 60 Cal.Rptr. 321 ], In addition to the cases cited, see People v. Livingston (1967) 252 Cal.App.2d 630 , 635 [ 60 Cal.Rptr. 728 ]; People v. Pressley (1966) 242 Cal.App.2d 555 , 558-559 [ 51 Cal.Rptr. 563 ]; and People v. Miller (1967) 248 Cal.App. 2d 731 , 734-735 [ 56 Cal.Rptr. 865 ]; and cf. People v. Coleman (1968) 258 Cal.App.2d 560 , 564 [ 65 Cal.Rptr. 732 ].)

In the instant ease the two boys were more than mere informers. The boys furnished eyewitness accounts of the crime, as well as identification of the criminals and the place of the crime. They were citizens, who were, by contacting the police, acting openly in aid of law enforcement. The trial court properly applied the latter rule in upholding the validity of the arrest and attendant search.

In any event, even if there Avere a requirement of corroboration because of the unreliability of the informants, such corroboration Avas present in this case. After the ear was stopped, the officer observed what appeared to be attempts to secrete objects Avithin the van. Such circumstances, when combined with what is otherwise considered insufficiently reliable information may Avarrant an arrest. (People v. Webb (1967) 66 Cal.2d 107 , 112 [ 56 Cal.Rptr. 902 , 424 P.2d 342 ]; People v. Melchor (1965) 237 Cal.App.2d 685 , 693 [ 47 Cal.Rptr. 235 ]; People v. Ausbie (1965) 232 Cal.App.2d 724 , 727 [ 43 Cal.Rptr. 137 ]; People v. Landry (1964) 230 Cal.App.2d 775 , 780 [ 41 Cal.Rptr. 202 ].) Also, the failure to produce evidence of registration or identity gave further justification to the officer’s action. (See People v. Valdez (1966) 239 Cal.App.2d 459 , 462 [ 48 Cal.Rptr. 840 ] [overruled on other grounds People v. Doherty (1967) 67 Cal.2d 9 , 15 [ 59 Cal.Rptr. 857 , 429 P.2d 177 ]].)

The arrest and attendant search Avas sustained by probable cause.

II. Subsequent Search of the Vehicle

The evidence first observed at the scene of the arrest remained in the van. The van was locked, and driven to a

Defendant’s reliance upon the principles expounded' in Preston v. United States (1964) 376 U.S. 364 , 367 [ 11 L.Ed. 2d 777 , 84 S.Ct. 881 ] and in People v. Burke (1964) 61 Cal.2d 575 , 580 [ 39 Cal.Rptr. 531 , 394 P.2d 67 ], vanishes with the qualifications imposed on those decisions by Cooper v. California (1967) 386 U.S. 58 , 61 [ 17 L.Ed.2d 730 , 87 S.Ct. 788 ]: and People v. Webb, supra, 66 Cal.2d 107 , 126 and 126-127. The search at the garage did not reveal objects not discovered at the scene of the arrest. In any event, it was justified either as a continuation of the existing search, or as a search attendant to the lawful possession of a vehicle in which contraband had been found. (See former Health & Saf. Code, § 1161, repealed Stats. 1967, ch. 280, § 1, effective June 7, 1967, and eases last cited.)

Defendant contends that the prosecution failed to establish a foundation for the introduction of the marijuana found in the van. He bases his argument on the testimony which indicated that the evidence taken from the van was placed in the chief of police’s office on September 17, 1966, that the evidence was removed and placed in envelopes on September 18, 1966, and that these envelopes were not mailed until September 19, 1966, which is contradicted by other evidence that the envelopes were mailed on September 20, 1966.

As the People point out, it is immaterial whether the envelopes were mailed on September 19th or 20th. The evidence indicates that these samples were in a sealed box in a safe in police custody until mailed, and were not removed until they were mailed. This is all that is necessary to demonstrate.

Moreover, although the defense attorney objected to the introduction of the actual box in which the evidence was mailed, he did not object to the receipt into evidence of the narcotics contained in the box. Defendant’s objection, for the first time on appeal, cannot be sustained. (People v. Richardson (1959) 51 Cal.2d 445 , 447 [ 334 P.2d 573 ].)

The following occurred on cross-examination of the defendant: “Q. Now, isn’t it true, Mr. Waller, that you were convicted of a felony? A. Yes.-Q.-And what-was that felony?

Defendant contends that the mere fact that he was in the van is not sufficient to show that he had knowledge of the presence of marijuana in it. (See People v. Antista (1954) 129 Cal.App.2d 47 , 51-53 [ 276 P.2d 177 ]; People v. Foster (1953) 115 Cal.App.2d 866 , 868 [ 253 P.2d 50 ]; and People v. Bledsoe (1946) 75 Cal.App.2d 862 , 863-864 [ 171 P.2d 950 ].)

There is direct evidence from which this knowledge can be found in the testimony of one of the boys, and that of Miss Rice. Moreover, “the true rule is that when narcotics are found concealed in or about an automobile, at least where such automobile is in the possession of the owner or his entrustee, the trial court may infer knowledge on the part of the owner. Such facts are sufficient to cast the burden of going forward with an explanation on the owner. The sufficiency of such explanation is for the trial court.” (People v. One 1940 Chrysler (1946) 77 Cal.App.2d 306 , 314 [ 175 P.2d 585 ]. See also Rideout v. Superior Court, supra, 67 Cal.2d 471 ,474.)

Sufficient evidence of defendant’s knowledge of the nature of the substance is found in the admission in his testimony, and in his prior conviction. (See People v. Horn, supra, 187 Cal.App.2d 68 ,74-76.)

The judgment is affirmed.

Molinari, P. J., and Elkington, J., concurred.

A petition for a rehearing was denied April 12, 1968, and appellant’s petition for a hearing by the Supreme Court was denied May 15,1968.