People v. Blodgett

293 P.2d 57, 46 Cal. 2d 114, 1956 Cal. LEXIS 159

• Court: California Supreme Court
• Decided: February 3, 1956
• Docket: Crim. 5759
• Status: Published

Opinions

TRAYNOR, J.

Defendant was found guilty by a jury of one count of possessing marijuana in violation of Health and Safety Code, section 11500. His motions for probation and for a new trial were denied, and he was sentenced to serve three months in the county jail. He appeals from the judgment and the order denying his motion for a new trial.

At approximately 8 p. m. on August 4, 1954, Nowlin Sanders and Mrs. Jacqueline Grundy met defendant on the street near the Willow Hotel at 7th and Willow in Oakland. Sanders had known defendant for about three months. The three went into the restroom of the hotel where they stayed for five or ten minutes. Defendant gave Sanders $10 to make some kind of purchase. Sanders left the hotel, made the purchase, and returned, and the three spent another ten minutes in the restroom. They then visited a friend in another hotel, and after they left and were walking on the street defendant told Mrs. Grundy and Sanders that he had bought five “joints of pot” i.e., marijuana. Defendant and Sanders shared a marijuana cigarette, and the parties separated. At approximately 3 a. m. the following morning Mrs. Grundy and Sanders were together at the Willow Hotel. Sanders left to get a cab, found one at a taxi stand a block away, got in the front seat and asked the driver to drive to the hotel. The cab double parked in front of the hotel and Sanders went in. Shortly thereafter Mrs. Grundy came out of the hotel, got in the cab, and sat on the right side of the rear seat. At about the same time defendant approached the cab and told the driver that he wished to go to 12th and Broadway. The driver told him that if his other fare was going in the same direction, he could go along. Defendant then entered the cab and sat on the left side of the rear seat. In the meantime, Officers Barker and Taraboehia of the Oakland Police Department had been observing the cab as it stood in front of the hotel and decided to investigate it. They approached and ordered the occupants to get out. As Officer Barker opened the left rear door he saw defendant withdraw his left hand from behind the seat at the juncture of the seat and back cushion. After defendant and Mrs. Grundy got out, the officer removed the rear seat and found three marijuana cigarettes where defendant had withdrawn his hand. The driver testified that earlier in the evening he had to clean out the back of his cab because a passenger had been ill. He had taken the seat out and at that time there were no cigarettes in the back of the cab. No one had been in the back seat thereafter until Mrs. Grundy and defendant sat there. After the officers had ordered Mrs. Grundy and defendant out of the cab, Sanders came out of the hotel. The officers then asked the cab driver to take all of them to the police station. Sanders asked defendant why they were being arrested and defendant replied that the police had found some “pot.” Defendant told the interviewing officer at the police station that at the time he was ordered out of the cab he had his left hand in his pocket and took it out to push back on the seat to raise himself. He stated that he had not smoked marijuana for about a year. At the trial he denied having smoked marijuana with Sanders and denied placing the marijuana cigarettes in the cab. Mrs. Grundy, Sanders, and the driver also denied placing the cigarettes in the cab.

Defendant contends that the search of the cab was unlawful and. that the evidence obtained thereby was therefore inadmissible. The search was made without a warrant. Although the cab driver could have been arrested for double parking, the search of his cab cannot be justified on that ground, for it had no relation to the traffic violation and would not have been incidental to an arrest therefor. (Cf. People v. Gorg, 45 Cal.2d 776 [291 P.2d 469]; Elliott v. State, 173 Tenn. 203 [116 S.W.2d 1009, 1012-1013]; United States v. Lefkowitz, 285 U.S. 452 [52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775].) It was justified, however, on another ground. There is nothing unreasonable in an officer’s questioning persons outdoors at night. (People v. Simon, 45 Cal.2d 645, 650-651 [290 P.2d 531]; Gisske v. Sanders, 9 Cal.App. 13, 16-17 [98 P. 43]), and in view of the hour and the unusual conduct of the occupants of the cab it was not unreasonable for the officers to order them to get out of the cab for questioning. Since Officer Barker saw defendant’s furtive action in getting out, he had reasonable grounds to believe that he was hiding contraband and the search of the cab was therefore reasonable. (Carrol v. United States, 267 U.S. 132, 149 [45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790]; Rusty v. United States, 282 U.S. 694, 701 [51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407]; Scher v. United States, 305 U.S. 251, 255 [59 S.Ct. 174, 83 L.Ed. 151]; Brinegar v. United States, 338 U.S. 160, 165-171 [69 S.Ct. 1302, 93 L.Ed. 1879]; United States v. One 1946 Plymouth Sedan Automobile, 167 F.2d 3, 7.)

Defendant also contends that he did not have a fair trial because of misconduct of the prosecuting attorney in attempting to suggest to the jury that defendant had taken heroin the evening before his arrest.

During his opening statement the prosecuting attorney told the jury that defendant, Sanders and Mrs. Grundy had gone into the restroom of the Willow Hotel, and that while there had “talked about the purchasing of some heroin.” Upon defendant’s objection the prosecuting attorney told the court that he was merely stating what he expected to prove and that he would not prove it if the court ruled the matter out. He was instructed to proceed. He then stated that defendant had given Sanders a $10 bill, that Sanders departed and returned a few minutes later with something in his hand, and that the three had “stayed in there for fifteen or twenty minutes and then departed.”

Mrs. Grundy testified as a witness for the People. On direct examination, in answer to the question “And what did you do while you were in the restroom at the Willow Hotel,” she said, “He [Sanders] put a paper which was believed to be heroin-” Defendant objected and the matter was taken up in chambers. The court ruled that testimony concerning the conduct of the parties in the restroom was admissible solely to show their relationship, but struck from the record the reference to heroin as “immaterial and as a volunteer statement and not responsive.” A later objection was also sustained when, upon cross-examination, defendant was asked, “And you know the effects [of heroin] because you yourself have been the recipient of a shot ? ’ ’ It was immaterial to the one-count charge of possession of marijuana whether or not defendant had taken heroin the evening preceding his arrest (see People v. Perez, 128 Cal. App.2d 750, 756 [276 P.2d 72]; cf. People v. Le Beau, 39 Cal. 2d 146, 148 [245 P.2d 302]), and the trial court therefore properly sustained these objections.

No further direct reference was made to heroin, but Mrs. Grundy and Sanders were questioned in detail concerning the activities of the three in the restroom. During the questioning it was brought out that they had partaken of Sanders’ purchase. It is apparent from the repeated references to the restroom and the conduct therein that the purpose of the questions was to keep constantly before the jury the suggestion in the opening statement that could not properly be proved. (Cf. People v. Mullings, 83 Cal. 138, 145-146 [23 P. 229, 17 Am.St.Rep. 223].) A careful review of the entire record convinces us, however, that this misconduct did not result in a miscarriage of justice. (Cal. Const., art. VI, § 4½.)

The judgment and order are affirmed.

Gibson, C. J., Shenk, J., Schauer, J., Spence, J., and McComb, J., concurred.