People v. Roth

Defendant was charged with possession of marijuana (§11530, Health & Saf. Code). Under section 995, Penal Code, he moved to dismiss the information. The People appeal from order granting defendant’s motion and setting aside the information.

The following is a summary of the testimony taken at the

On July 25, 1967, around 9 :45 a.m., Officer Britton, California Highway Patrol, was stopped by a passing motorist who told him that a Volkswagen had rolled over; 11 almost before the dust was settled, ’ ’ he arrived at the scene on Highway 101 near San Luis Obispo. Five minutes later Officer Lee arrived to assist him. In the number one lane northbound near another vehicle was a Volkswagen resting on its wheels, facing west; three persons had been thrown from the vehicle —a baby, a woman lying on the pavement and defendant who was up but in quite a bit of pain. Officer Britton took certain registration information from the Volkswagen and a quick glance to see its position; the contents “were all messed up inside” and “there was quite a lot of personal belongings.” He watched the vehicle and saw no one enter it. The Volkswagen was registered to Robert Lund in Lakewood. All occupants were removed to an ambulance.

Officer Lee, California Highway Patrol, saw the ambulance remove the injured occupants and volunteered to diagram the accident, store the Volkswagen and make the storage report on the vehicle. The contents of the vehicle were “messed up inside, ruffled. ’ ’ He made a diagram of the accident and measured the distances, then instructed a tow truck operator to hook up the Volkswagen and take it to his shop; Officer Lee followed behind it to Jim’s Body Shop. The vehicle was not out of his sight and he saw no one place anything in it. When the tow truck reached its destination, Officer Lee began an inventory filling out official Form 180—inventory and storage report. The contents of the Volkswagen had been “bounced around a great deal and roughed up”; one by one he sorted out the items in the car and listed them on the report— suitcase containing miscellaneous clothing, wrist watch case, cloth coat, brown suede coat, red wallet with miscellaneous papers, empty leather toilet case, baby blankets, Norelco shaver, long playing record' books, car bed, stroller frame, plastic laundry bucket, various toilet articles, etc. In the course of the inventory Officer Lee removed a man’s dark coat lying loosely on the back seat of the Volkswagen. As he picked it up the coat felt “heavy on one side” so he reached in one of the pockets and found a black wallet containing defendant’s driver’s license on which was his name, San Francisco address, and photograph, and a quantity of money. Then he looked through the coat for money and found in the right top

That the discovery of the contraband was not the result of a search of the Volkswagen but of a measure taken to protect the car and its contents which were lawfully in the officer’s custody finds support in Harris v. United States, 390 U.S. 234 [ 19 L.Ed.2d 1067 , 88 S.Ct. 992 ] decided by the United States Supreme Court March 5, 1968. Harris’ automobile had been traced leaving the site of a robbery; he was arrested as he entered it near his home. The police impounded the car as evidence and a crane was called to tow it. The windows were open and the ear was unlocked and it had begun to rain. A regulation of the Metropolitan Police Department, District of Columbia, requires an officer who takes an impounded vehicle in charge to search it thoroughly and remove all valuables from it and attach to the vehicle a property tag listing certain information pursuant to this regulation. Without a warrant the arresting officer proceeded

However, if the customary protective measure used by the California Highway Patrol to safeguard the vehicle and its contents while lawfully in its custody be considered a search within the Fourth Amendment of the United States Constitution, under the conditions here presented it was not unreasonable even though at the time no arrest was made or contemplated. Analogous to the emergency conditions created by the accident and the injury and hospitalization of the occupants of the Volkswagen necessitating the taking and listing of their property for safekeeping, are those arising from the emergency hospitalization of an unconscious patient necessitating a search of his clothing and the taking and listing of the property found on his person by hospital employees for safekeeping. In People v. Gonzales, 182 Cal.App.2d 276 [ 5 Cal.Rptr. 920 ], defendant, found unconscious with a severe knife wound, was taken to the hospital for surgery; in the course of a search of his clothing for identification marijuana was found. The search was upheld as reasonable, the circumstances justifying the search even though no arrest was made or contemplated at the time; and the marijuana accidentally found in the course of a reasonable search for the purpose of identifying the patient and safeguarding his property was held to be admissible. Thus, under Penal Code, section 11160, a hospital must report to the police the facts concerning a wound of this kind; under section 10275, Health and Safety Code, it must make a patient’s record sufficient and adequate for completion of a death certificate; and under sections 1815 and 1816, Civil Code, “a hospital would undoubtedly become the involuntary bailee of property carried on the person of an

Clearly holding the inventory made by Officer Lee to be a search, the superior court concluded that it was illegal within the doctrine of Preston v. United States, 376 U.S. 364 [ 11 L.Ed.2d 777 , 84 S.Ct. 881 ], and People v. Burke, 61 Cal.2d 575 [ 39 Cal.Rptr. 531 , 394 P.2d 67 ]; and that this was a matter for a search warrant. At the outset it should be noted that there was neither reason nor necessity for Officer Lee nor anyone else to obtain a search warrant. No one had been arrested; there was no reason to suspect any occupant of the Volkswagen of having committed a crime; no one had reason to believe contraband was in the vehicle; no one requested Officer Lee to conduct a search and in making the inventory he was not looking for narcotics.

Preston v. United States, 376 U.S. 364 [ 11 L.Ed.2d 777 , 84 S.Ct. 881 ], holds that once an accused is arrested and in custody a subsequent warrantless search of his car in a police impound garage is too remote in time and place to have been incident to the arrest. On the basis of Preston, the California Supreme Court decided People v. Burke, 61 Cal.2d 575 [ 39 Cal.Rptr. 531 , 394 P.2d 67 ], Defendant was arrested because of his unexplained suspicious actions in a high frequency

Subsequent eases (Cooper v. California, 386 U.S. 58 [ 17 L.Ed.2d 730 , 87 S.Ct. 788 ]; People v. Webb, 66 Cal.2d 107 [ 56 Cal.Rptr. 902 , 424 P.2d 342 ]) have distinguished Preston and Burke and qualified language therein which suggested an inflexible requirement of a warrant unless a search of the vehicle was incident to a lawful arrest. In Cooper v. California, 386 U.S. 58 [ 17 L.Ed.2d 730 , 87 S.Ct. 788 ], upon petitioner’s arrest for a narcotic violation, the police impounded his automobile and held it in an impound garage for institution of forfeiture proceedings. A week later a search of the vehicle without a warrant resulted in the discovery of narcotics in the glove compartment; it was conceded that the search was not incident to the arrest. Petitioner contended, and the California court ruled, that the forfeiture statute (§11611, Health & Saf. Code) does not authorize a search of a vehicle. The court said: “But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one. While it is true, as the lower court said, that ‘ lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it,’ ibid., the reason for and nature of the custody may constitutionally justify the search.” (386 U.S. at p. 61 [17 L.Ed.2d at p. 733].) Preston was distinguished in that he had been, arrested for vagrancy, the custody police had of his ear was totally unrelated to the vagrancy charge, and

Thereafter, the California Supreme Court in People v. Webb, 66 Cal.2d 107 [ 56 Cal.Rptr. 902 , 424 P.2d 342 ], distinguished Burke and Preston on the ground that the search in each of those eases was general and exploratory in nature, a search for evidence of a crime police did not yet know defendant had committed and “in neither case was there any emergency which would have made it dangerous or otherwise unreasonable for the officers to have searched the entire car at the time and place of the arrest.” (Pp. 124-125.) The officers arrested defendant (for whom a warrant was outstanding) who abandoned his car which had crashed into another vehicle blocking oncoming traffic. Police began a search of the car finding heroin on the floor but because a large crowd had gathered thought it best to continue the search elsewhere; later they did so at the impound lot and found other contraband in the vehicle. The court held that the officers had the right to continue the search of the vehicle as an incident to the arrest; that under the totality of the circumstances the search was reasonable and the delay for reason of convenience did not necessarily render it unreasonable; and that a vehicle creating a hazard to traffic should immediately be removed from the highway citing People v. Grubb, 63 Cal.2d 614 [ 47 Cal.Rptr. 772 , 408 P.2d 100 ], An alternative ground of decision was the right of police to impound the car for forfeiture under section 11611, Health and Safety Code, and the rea

The conduct of defendant in Perez v. Superior Court, 250 Cal.App.2d 695 [ 58 Cal.Rptr. 635 ], was held to constitute ‘ ‘ extraordinary and exceptional circumstances ’ ’ which afforded reasonable cause for an investigation of his automobile. (P. 699.) Defendant and his companion had parked in a dark vacant lot; when the officers flashed a light on them they deserted the vehicle. In People v. Williams, 67 Cal.2d 226 [ 60 Cal.Rptr. 472 , 430 P.2d 30 ], after a burglary had been committed defendant abandoned his car in an intersection, an officer pursued and arrested Mm while the other officer opened the trunk in which he saw a number of men’s suits. The vehicle was taken to a police storage garage where the contents were inventoried. The trunk contained 29 suits bearing a label of a burglarized men’s store. The court held the subsequent inventory and seizure at the police impound as “ ‘a continuation of the search lawfully begun at the time and place of arrest.’ ” (P. 229.) The court distinguished Preston and Burke and relied on People v. Webb. A citizen in People v. Harris, 256 Cal.App.2d 455 [ 63 Cal.Rptr. 849 ], witnessed defendant hit another vehicle, pursued and stopped him and called the police. The officers arrested defendant for hit-and-run and saw articles in the vehicle which defendant identified as belonging to him. Later the officers took a burglary victim to defendant’s car where he identified the articles as having been stolen from him. Said the court at page 461: ‘ ‘ The officers had the valid custody of the automobile. As an instrumentality of the hit-run offense it was important and perhaps necessary evidence. The police had a right to seize and hold it for such purposes. [Citations.] Since defendant was under arrest it was the duty of the officers to take

In the foregoing cases it was the arrest of defendant that made the subsequent removal and custody of his automobile by police lawful. While defendant was not arrested, the removal of the Volkswagen nevertheless was authorized under section 22651 subdivisions (b), (g), Vehicle Code, as a result of which the California Highway Patrol had lawful custody of the vehicle for stoaage. (§22850, Veh. Code.) Considering the reason for and nature of the custody, it would be unreasonable to hold that the California Highway Patrol, having to retain the vehicle and its contents in custody, had no right even for its own protection to make an inventory of the contents. The circumstances created by the condition of the numerous articles of a personal nature in the vehicle and their obvious value, the inability of the injured occupants to take charge of their property and the undetermined length of time the owners would be incapacitated warrant the entry and inventory of the contents of the Volkswagen as reasonable under the Fourth Amendment.

Proceeding to the issue of whether there was sufficient cause to hold defendant to answer the charge, “it must be emphasized at the outset that the elements of an offense . . . need not be established beyond a reasonable doubt in order to hold a defendant to answer following a preliminary examination. It is provided in section 872 of the Penal Code that a defendant must be held to answer if ‘it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof. . . . ,’ and the latter phrase, ‘sufficient cause,’ is equivalent in meaning to ‘reasonable or probable cause.’ [Citation.] As we stated in Rogers v. Superior Court, 46 Cal.2d 3 , 7-8 [ 291 P.2d 929 ], ‘ “ [sufficient cause” and “reasonable and probable cause” mean such a state of facts as would. lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.’ Moreover. ‘ “ [Reasonable and probable cause” may exist although there may be some room for

On a preliminary hearing the magistrate is required to weigh the evidence and pass on the credibility of witnesses in determining whether sufficient cause has been established.

When a superior court reviews this decision under section 995, Penal Code, it may not substitute its judgment as to the weight of the evidence at the preliminary hearing nor judge the credibility of witnesses. (Perry v. Superior Court, 57 Cal.2d 276 [ 19 Cal.Rptr. 1 , 368 P.2d 529 ]; People v. Swansboro, 200 Cal.App.2d 831 , 835 [ 19 Cal.Rptr. 527 ]; People v. Akard, 215 Cal.App.2d 182 , 185 [ 30 Cal.Rptr. 69 ]; Badillo v. Superior Court, 46 Cal.2d 269 , 271 [ 294 P.2d 23 ].) If there is some competent evidence to support the information, the court will not inquire into its sufficiency. [11] The information will be set aside on the basis of insufficient cause only where there is no evidence that a crime has been committed or there is no evidence to connect defendant with the crime. (People v. Fitch, 189 Cal.App.2d 398 , 402 [ 11 Cal.Rptr. 273 ]; Weber v. Superior Court, 35 Cal.2d 68 , 69 [ 216 P.2d 871 ]; People v. Upton, 257 Cal.App.2d 677 , 686 [ 65 Cal.Rptr. 103 ].)

Applying the above standards we conclude that the evidence before the magistrate amply supports his findings that there is probable cause to believe a violation of section 11530, Health and Safety Code, has been committed and to believe defendant guilty thereof. It was established that defendant was an occupant of the Volkswagen having been thrown out of the vehicle as a result of the accident and injured; the only other occupants were a young woman and a baby; the marijuana was found in a pouch in a pocket of a man’s coat lying loosely on the back seat of the Volkswagen; in other pockets of the same coat were a passport with defendant’s photograph, name and address and a wallet containing defendant’s driver’s license. The magistrate was warranted in the undisputed inference that the coat belonged to defendant. Thus, an inference of possession of contraband by defendant may be drawn from the presence of the narcotic in his coat—among his ‘1 personal effects.” (People v. Flores, 155 Cal.App.2d 347 , 349 [ 318 P.2d 65 ]; People v. Mateo, 171 Cal.App.2d 850 , 855 [ 341 P.2d 768 ]; People v. Villanueva, 220 Cal.App.2d 443 , 450 [ 33 Cal.Rptr. 811 ]; People v. Luke, 233 Cal.App.2d 793 , 796 [ 43 Cal.Rptr. 878 ].) Inasmuch as

The order is reversed.

Wood, P. J., and Fourt, J., concurred.