People v. Johnson

Defendant appeals from the judgment entered upon his conviction of possession of marijuana. He contends that the conviction was the result of an illegal search and seizure.

Thomas Harvey and Officer David Bailey testified for the

Harvey did not approach defendant but remained with his wife at their ear about 20 or 30 feet away. After informing the officers that defendant was the hit-run driver, Harvey asked them if they were going to arrest him. They responded that, since Harvey was not hurt in the accident, the offense committed by defendant was a misdemeanor, and they could not arrest defendant for a misdemeanor. Harvey told the officers that he wanted defendant arrested. The officers then handcuffed defendant and placed him in the back seat of their police car.

About 20 minutes later Officer Bailey (the officer who had taken the initial accident report) drove up. Bailey was informed that defendant had been placed under arrest; that it was a citizen’s arrest for misdemeanor hit and run which had been effected by the citizen with the assistance of the two officers. Bailey then removed defendant from the police car and, preparatory to putting him in his own vehicle, conducted a patdown of his person. He felt a round, hard object in defendant’s right front pants’ pocket which he thought might be a knife. He withdrew the object. It was a tightly wrapped paper bag containing marijuana (which was subsequently introduced against defendant). After making this

Defendant's contention that an illegal search and seizure occurred is predicated solely on the argument that he was illegally arrested. He correctly points out that the officers could not lawfully arrest him for the hit and run misdemeanor offense, since it was not committed in their presence. (Pen. Code, § 836.) He argues that the facts do not establish that a valid citizen's arrest took place.

A private person may arrest another for a public offense—i.e., a misdemeanor—committed or attempted in his presence. (People v. Sjosten, 262 Cal.App.2d 539 , 543 [ 68 Cal.Rptr. 832 ]; Pen. Code, § 837.)

In Sjosten, supra, the defendant was observed by a woman from her window prowling around the premises of her neighbors late at night. She promptly called the police. When the officers arrived they observed defendant walking on the street. They brought him over to the woman’s house. Because she was dressed only in bed clothes, she did not go outside but identified defendant through the window. When the officers explained that they could not arrest him since they did not see him prowling, but that she could make a citizen’s arrest, the woman said she wanted him arrested but asked the officers to arrest him "for her. The court, concluding that a valid citizen’s arrest took place, stated (at p. 544): “The fact that she did not physically confront appellant is not significant. It is sufficient that she directed the officer to make the arrest and observed him doing so from her window. ’ ’

In People v. Harris, 256 Cal.App.2d 455 [ 63 Cal.Rptr. 849 ], a witness observed the defendant commit a misdemeanor hit and run violation. He pursued and overtook defendant and forced him to pull to a stop. He then detained defendant and sent for a policeman who took defendant into custody. The .court held that the evidence supported a finding, that the witness had made a legal citizen’s arrest despite the fact the witness never stated to defendant that he was under arrest.

As in the Harris and Sjosten cases, the evidence in the case at bench supports the conclusion-that a lawful citizen’s arrest had been made, with the officers making-the arrest for and at the direction of Mr. Harvey.

Contrary to the argument of defendant, a different' finding is .not.required because- of Mr. .Harvey’s testimony-on' cross-examination that he did not make the arrest. Harvey; testified that, after the officers explained that they could not arrest.

The judgment is affirmed.

Files, P. J., and Kingsley, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied May 21, 1969.