HERNDON, J.
— By a jury verdict, defendants Eugene and Wesley Green were convicted of grand theft and of petty theft following prior felony convictions.1 It was found that Wesley had suffered four prior felony convictions and Eugene had two. Both defendants took appeals from the judgments, but Wesley’s was dismissed on his own motion. Hence the appeal now before us is only that of Eugene.
Our statement of facts will be related to the sole assignment of error, namely, that the court below committed reversible error in receiving in evidence the stolen property which the police officers had taken from Eugene’s automobile an hour or so after he had been arrested. Sufficiency of the evidence is not, nor could it reasonably be, challenged.
The record discloses that Eugene and Wesley were caught in the act of stealing various items of merchandise from a Sears, Roebuck store in Pasadena. Their joint operation was a crude but potentially effective device which sometimes enabled one of them to engage the attention of a clerk while the other managed to conceal selected items of property on his person and thereafter make his unnoticed departure from the store.
Following appellant Eugene’s arrest at approximately 8:20 p.m., he was asked by Mr. Skutley, a 11 Security Supervisor” employed by the store, whether he was driving an automobile. Appellant answered in the affirmative and told Mr. Skutley that he was driving a white 1956 Lincoln. Although he at once consented to a search of his car, appellant purposely misdirected Mr. Skutley to the vehicle of a [508]*508stranger. This vehicle is described as a Lincoln but the record does not reveal its color or whether or not it was of 1956 vintage. Apparently the fact that it was not appellant’s vehicle was patently obvious, for appellant failed to ask Mr. Skutley any questions in connection therewith.2
Thereafter, at approximately 9 p.m., Eugene and Wesley were turned over to the Pasadena police. After these two suspects had been incarcerated, the police immediately resumed their search for Eugene’s automobile. It was located at approximately 9 :30 p.m. on a parking lot owned by the A & P Market. The two parking lots owned and operated by Sears, Roebuck and by the A & P Market were adjoining and, from a practical standpoint, one lot was no more than a paved continuation of the other.
Clearly observable through the windows of appellant’s car were seven pairs of trousers lying on the back seat. These trousers still had their “raw cuffs,” i.e., as with all “ready made” trousers, the bottoms of the trouser legs were of extra length ending in the jagged cuts made by pinking shears so that they might be altered to fit the customer and either turned outward for cuffs or inward for cuffless trousers. In addition, they still carried the price tags and the identifying tags of Hinshaw’s Department Store, a neighboring place of business. It was obvious, of course, from the appearance of these items of merchandise that they had not been purchased because, in the course of the ordinary sale, tailoring of the trouser legs is completed and the tags are removed.
Also lying on the seat of this vehicle were seven shirts with similar identifying tags, and two “disc sanders” still in their Sears, Roebuck cartons approximately 2 feet in length and 8x8 inches in their other dimensions.3 Also there was [509]*509an electric mixer set complete with bowls and stand. This item had the appearance of “stolen fruit” because it was not contained in a box and it still carried on it the Sears, Roebuck price tag. Finally, there were a fishing line, several cartons of cigarettes, and some neckties.
Mr. Skutley testified that he did not see the registration slip on the car, but that before the officers impounded the ear, he had seen various papers which were found in the glove compartment with the names of Eugene and Wesley Green thereon.4 The doors to the car were unlocked, and, although the record is somewhat limited on the subject, it is not denied that all of these stolen items were clearly visible and identifiable from the outside.
The essence of appellant’s contention is set forth in his brief as follows: “A search at a location distant from the place of arrest, after the arrest has been completed, and when entry of the place has not been made prior to or at time of arrest, but after, is illegal in absence of a search warrant.”
The import of this contention is, to say the least, rather unclear. If appellant means to challenge the right of the officers to search for his car after his arrest, such contention clearly would be lacking in merit. In a metropolitan area the size of Los Angeles, it is most improbable that a team of department store thieves will transport their loot from urban or suburban areas on foot or by means of public transportation facilities.
When one suspect member of this acquisitive team tells the Sears, Roebuck investigator that he has driven to the store in an automobile described by him as a white, 1956 Lincoln,5 surely both the investigator and the police authorities to whom the information is relayed would be sadly derelict in the performance of their duties if they did not attempt to locate this ear as rapidly as possible. This would be an obviously necessary step in order to prevent its disappearance [510]*510and the potential loss of any previously stolen property it might contain.
Speed of discovery is particularly important in instances such as the present where the officers knew from eye witnesses, and almost to a certainty, that the two men taken into custody were operating as a team and that very possibly one or more others might have been involved. When appellant lied about knowing Wesley, a fact established by the observed conduct of the pair prior to their arrest, and then deliberately misdirected the officers to an automobile that he did not own, it obviously was a very logical assumption that Ms automobile most probably contained something that appellant desired very much to conceal.
In these circumstances a police officer of any competence naturally would regard it as his plain duty to locate this vehicle as quickly as possible. Common sense would suggest the possibility, if not the probability, that there might be other collaborators or someone who might drive the vehicle away from the vicinity or remove from it whatever stolen goods or other incriminating evidence it might contain. The officers also might reasonably apprehend that appellant could use his allowed telephone call from the jail to suggest to some friend or collaborator that the vehicle or its contents be removed. (See Pen. Code, § 851.5.)
Similarly, if appellant is challenging the right of the officers to look into his ear and observe the many large, plainly observable items with the sales tags still on them, the contention is equally unmeritorious. “Apparently the . . . [adjoining parking lot] was a common area; the officers did not commit a trespass by entering it. Nor did the officers conduct an unreasonable search by looking in the window of the car. [Citation.] ” (People v. Terry, 61 Cal.2d 137, 152 [37 Cal.Rptr. 605, 390 P.2d 381].)
As the court pointed out in Bielicki v. Superior Court, 57 Cal.2d 602, 605 [21 Cal.Rptr.
Free access — add to your briefcase to read the full text and ask questions with AI
HERNDON, J.
— By a jury verdict, defendants Eugene and Wesley Green were convicted of grand theft and of petty theft following prior felony convictions.1 It was found that Wesley had suffered four prior felony convictions and Eugene had two. Both defendants took appeals from the judgments, but Wesley’s was dismissed on his own motion. Hence the appeal now before us is only that of Eugene.
Our statement of facts will be related to the sole assignment of error, namely, that the court below committed reversible error in receiving in evidence the stolen property which the police officers had taken from Eugene’s automobile an hour or so after he had been arrested. Sufficiency of the evidence is not, nor could it reasonably be, challenged.
The record discloses that Eugene and Wesley were caught in the act of stealing various items of merchandise from a Sears, Roebuck store in Pasadena. Their joint operation was a crude but potentially effective device which sometimes enabled one of them to engage the attention of a clerk while the other managed to conceal selected items of property on his person and thereafter make his unnoticed departure from the store.
Following appellant Eugene’s arrest at approximately 8:20 p.m., he was asked by Mr. Skutley, a 11 Security Supervisor” employed by the store, whether he was driving an automobile. Appellant answered in the affirmative and told Mr. Skutley that he was driving a white 1956 Lincoln. Although he at once consented to a search of his car, appellant purposely misdirected Mr. Skutley to the vehicle of a [508]*508stranger. This vehicle is described as a Lincoln but the record does not reveal its color or whether or not it was of 1956 vintage. Apparently the fact that it was not appellant’s vehicle was patently obvious, for appellant failed to ask Mr. Skutley any questions in connection therewith.2
Thereafter, at approximately 9 p.m., Eugene and Wesley were turned over to the Pasadena police. After these two suspects had been incarcerated, the police immediately resumed their search for Eugene’s automobile. It was located at approximately 9 :30 p.m. on a parking lot owned by the A & P Market. The two parking lots owned and operated by Sears, Roebuck and by the A & P Market were adjoining and, from a practical standpoint, one lot was no more than a paved continuation of the other.
Clearly observable through the windows of appellant’s car were seven pairs of trousers lying on the back seat. These trousers still had their “raw cuffs,” i.e., as with all “ready made” trousers, the bottoms of the trouser legs were of extra length ending in the jagged cuts made by pinking shears so that they might be altered to fit the customer and either turned outward for cuffs or inward for cuffless trousers. In addition, they still carried the price tags and the identifying tags of Hinshaw’s Department Store, a neighboring place of business. It was obvious, of course, from the appearance of these items of merchandise that they had not been purchased because, in the course of the ordinary sale, tailoring of the trouser legs is completed and the tags are removed.
Also lying on the seat of this vehicle were seven shirts with similar identifying tags, and two “disc sanders” still in their Sears, Roebuck cartons approximately 2 feet in length and 8x8 inches in their other dimensions.3 Also there was [509]*509an electric mixer set complete with bowls and stand. This item had the appearance of “stolen fruit” because it was not contained in a box and it still carried on it the Sears, Roebuck price tag. Finally, there were a fishing line, several cartons of cigarettes, and some neckties.
Mr. Skutley testified that he did not see the registration slip on the car, but that before the officers impounded the ear, he had seen various papers which were found in the glove compartment with the names of Eugene and Wesley Green thereon.4 The doors to the car were unlocked, and, although the record is somewhat limited on the subject, it is not denied that all of these stolen items were clearly visible and identifiable from the outside.
The essence of appellant’s contention is set forth in his brief as follows: “A search at a location distant from the place of arrest, after the arrest has been completed, and when entry of the place has not been made prior to or at time of arrest, but after, is illegal in absence of a search warrant.”
The import of this contention is, to say the least, rather unclear. If appellant means to challenge the right of the officers to search for his car after his arrest, such contention clearly would be lacking in merit. In a metropolitan area the size of Los Angeles, it is most improbable that a team of department store thieves will transport their loot from urban or suburban areas on foot or by means of public transportation facilities.
When one suspect member of this acquisitive team tells the Sears, Roebuck investigator that he has driven to the store in an automobile described by him as a white, 1956 Lincoln,5 surely both the investigator and the police authorities to whom the information is relayed would be sadly derelict in the performance of their duties if they did not attempt to locate this ear as rapidly as possible. This would be an obviously necessary step in order to prevent its disappearance [510]*510and the potential loss of any previously stolen property it might contain.
Speed of discovery is particularly important in instances such as the present where the officers knew from eye witnesses, and almost to a certainty, that the two men taken into custody were operating as a team and that very possibly one or more others might have been involved. When appellant lied about knowing Wesley, a fact established by the observed conduct of the pair prior to their arrest, and then deliberately misdirected the officers to an automobile that he did not own, it obviously was a very logical assumption that Ms automobile most probably contained something that appellant desired very much to conceal.
In these circumstances a police officer of any competence naturally would regard it as his plain duty to locate this vehicle as quickly as possible. Common sense would suggest the possibility, if not the probability, that there might be other collaborators or someone who might drive the vehicle away from the vicinity or remove from it whatever stolen goods or other incriminating evidence it might contain. The officers also might reasonably apprehend that appellant could use his allowed telephone call from the jail to suggest to some friend or collaborator that the vehicle or its contents be removed. (See Pen. Code, § 851.5.)
Similarly, if appellant is challenging the right of the officers to look into his ear and observe the many large, plainly observable items with the sales tags still on them, the contention is equally unmeritorious. “Apparently the . . . [adjoining parking lot] was a common area; the officers did not commit a trespass by entering it. Nor did the officers conduct an unreasonable search by looking in the window of the car. [Citation.] ” (People v. Terry, 61 Cal.2d 137, 152 [37 Cal.Rptr. 605, 390 P.2d 381].)
As the court pointed out in Bielicki v. Superior Court, 57 Cal.2d 602, 605 [21 Cal.Rptr. 552, 371 P.2d 288], the term “search” as used in the pertinent provisions of the United States and California Constitutions imports a definite concept: “A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. [Citation.] ” The opinion in People v. West, 144 Cal.App.2d 214, 219-220 [300 P.2d 729], quoted by the Supreme Court in Bielicki, supra, further states: “While it has been said that ordinarily searching is a function of sight, it is generally held that the [511]*511mere looking at that which is open to view is not a ‘search’.” (See also People v. Spicer, 163 Cal.App.2d 678, 683 [329 P.2d 917], and cases cited therein.)
Further, even if it were to be conceded that it would be semantically more accurate to describe as a “search” the process of “looking into” a car which itself had been the object of a search, in the instant case the officers’ “searching look” at the accumulated booty openly displayed in appellant’s car would not have constituted an “unreasonable search.” ( People v. Terry, supra, 61 Cal.2d at p. 152.)
Finally, it may be that appellant’s contention is meant to suggest that the further examination and removal of the merchandise found in his car was automatically unreasonable since his car was not under his “immediate control” at the time of his arrest or that its “search” was “remote in time or place from the arrest.” (People v. Burke, 61 Cal.2d 575, 580 [39 Cal.Rptr. 531, 394 P.2d 67] ; Preston v. United States, 376 U.S. 364, 367 [84 S.Ct. 881, 11 L.Ed.2d 777].) It is apparent, however, that the factual situations present in Burke and Preston are so wholly dissimilar to the instant case that the rules therein enunciated have no possible application here.
In both Burke and Preston the identification and removal into police custody of the automobiles there in question were coincident with the arrest of their owners and occupants. The searches, i.e., the prying into hidden recesses of the cars, condemned in those cases, occurred after both the cars and the occupants had been removed from the scene of the arrest. Further, in both instances the searches were of a general exploratory nature since in Preston the accused persons were arrested for “vagrancy,” and as the result of their “unsatisfactory explanations and [their] suspicious actions” in Burke.
In fact, as noted in Preston, page 368, it was necessary to make the questionable assumption “that there are articles which can be the ‘fruits’ or ‘implements’ of the crime of vagrancy,” before even the possibility of a legal search could have been present therein. Indeed, in Burke, despite the fact that the accused therein were arrested only by reason of their “suspicious’ actions” in a neighborhood where recent burglaries had been committed, nevertheless the court held, page 580: “The search made of the interior of defendant’s car at the time and place of the arrest was lawful as a search incidental to arrest. . . .” (Italics added.)
[512]*512That the rule set forth in People v. Terry, supra, 61 Cal.2d at p. 152, was not affected by the Burke decision is expressly so stated therein, page 580: “The case of People v. Terry, supra, ante, pp. 137, 152-153, decided only a few days before Preston, is distinguishable on its facts. There the defendant fled when the police sought to talk to him after having observed in his automobile an object which appeared to be a marijuana cigarette, and there was a danger, not present here, that if the articles seen in the automobile were not taken into custody the defendant would return and remove the evidence. ’ ’
As previously indicated, a similar situation existed in the instant ease. After having described the ear he had driven to the store where he and at least one other member of a team had been caught in the very act of stealing merchandise, appellant deceitfully took the investigator to a car that was not his own. For present purposes we may assume that this conduct vitiated the consent to search the car which he previously had expressed. (Castaneda v. Superior Court, 59 Cal.2d 439, 443 [30 Cal.Rptr. 1, 380 P.2d 641].) In turn, however, it served to increase and emphasize the imperative need for prompt police action to locate his car and take possession of any evidence or other items of stolen property contained therein.
Certainly the mere absence of appellant from the scene should not render illegal the observations made into the interior of the car or the removal of what rather clearly appeared to be stolen property plainly visible therein. Such a rule would require the officers to physically transport an arrested criminal with them while searching for his car. We see no possible purpose to be served by imposing any such potentially dangerous and useless requirement upon police operating in the field.
In the instant case, Wesley Green had assaulted the officers when they attempted to arrest him. Appellant Eugene Green had lied to the officers regarding the location of his car. Surely our constitutional provisions do not require that the incarceration of such persons must be dealyed until all evidence at the scene of their crimes has been brought to light. As stated in People v. Robinson, 62 Cal.2d 889 at page 895 [44 Cal.Rptr. 762, 402 P.2d 834] :
“In the ease before us, the police conducted their search at the place of arrest, i.e., in front of the police station, at a time virtually contemporaneous to that of arrest. Viewing the [513]*513matter realistically, we conclude that the officers, in taking defendant a few steps away to the interior of the police station, acted as reasonably as if they had ordered him to stand in front of his car while they conducted their search. Since the latter course would clearly be incidental to an arrest, the procedure actually employed must as its equivalent be accorded the same legal effect. [Citation.] ”
Likewise, in the case at bench the police conducted their search at the place of arrest, i.e., Wesley was arrested in the parking area outside the Sears store prior to appellant’s arrest, and the search was essentially contemporaneous in time. Appellant and his partner were delivered to the Pasadena police officers at the security office of the Sears store at 9 p.m., and, following whatever period of time was required for this transfer, Mr. Skutley and the police immediately resumed the search and located appellant’s car at approximately 9:30 p.m.
We can but conclude that the officers’ observations into appellant’s car and their removal of the stolen property plainly to be seen in the unlocked interior thereof were not too remote in time to be considered lawful, even if we were to assume that such actions would be permissible only by reason of their being incidental to his arrest. Even if the police had obtained a search warrant in this instance, we know of no rule that would require appellant’s presence while the warrant was being executed.
It seems equally certain that the mere fact that the car was not under appellant’s “immediate control” at the time of his arrest does not render the officers’ conduct illegal. That the strict rule applied to a citizen’s residence in People v. Cruz, 61 Cal.2d 861, 865-866 [40 Cal.Rptr. 841, 395 P.2d 889], has not been extended to vehicles is made clear by the recent decision in People v. Harris, 62 Cal.2d 681 [43 Cal.Rptr. 833, 401 P.2d 225]. There one Billy Harris had been arrested inside an apartment building where he had made a delivery of narcotics. The court, in reference to the automobile parked outside the building, stated without qualification, page 683: “Incident to their arrest of defendant Billy Harris, the officers were entitled to search the car he had used to deliver the heroin.” (Italics added.)
By parity of reasoning, it likewise can be said in the present case that the officers were entitled to search the car which appellant admittedly had driven to the Sears, Roebuck [514]*514store and which presumably he would have used to remove the stolen property from its vicinity.
Further support for the proposition that a nearby vehicle may be searched at the scene of an arrest is found in numerous cases, both federal and state. In Crawford v. Bannan, 336 F.2d 505, defendant was arrested near his car, taken to the police station, after which the police returned and searched his car. The court distinguished Preston and held the search to be incident to the arrest. As to whether or not the police should have gotten a warrant, the court stated at page 507: “Preston did not overrule, but cited as existing authority, the case of United States v. Rabinowitz, 339 U.S. 56, 70 [70 S.Ct. 430, 94 L.Ed. 653] . . . which we believe confirms the legality of the search here discussed. In Rabinowitz, the Supreme Court stated ‘Assuming that the officers had time to procure a search warrant, were they bound to do so? We think not,
In Caldwell v. United States, 338 F.2d 385, the defendant robbed a bank at approximately 10:30 a.m. and then proceeded to escape in a getaway car. Approximately a half hour later the police found a car in the neighborhood which fit the description of the car. It was searched and some three hours later the police arrested the defendant at his home. The court stressed the difference between vehicles and homes, stated there was probable cause to search this particular car, and distinguished Preston on the basis that the car was not in custody and there was an opportunity for defendant to return and remove the evidence.
In Weller v. Russell, 321 F.2d 848, defendant was caught in the act of burglarizing a building. He stated that he owned no car and that he had hitchhiked to the building. He was taken to the police station where a search of his person revealed car keys with a miniature Maryland license plate sticker attached hereto. The police returned to the area and found a car bearing Maryland plates and which the keys fit. A search of the car, approximately an hour after the arrest, revealed incriminating evidence against the defendant. The search was held incident to the arrest and not unreasonable under the circumstances. For other federal cases sanctioning searches of automobiles in situations closely analogous to the instant case, see Hollins v. United States, 338 F.2d 227 ; United States v. Fortier, 207 F.Supp. 516; Sisk v. Lane, 219 F.Supp. 507, and the cases cited therein.
In People v. Demes, 220 Cal.App.2d 423 [33 Cal.Rptr. [515]*515986], defendant committed a robbery at about 1:30 a.m. He escaped in what was described as a blue-and-white 1954-1956 Pontiac. The car had been fired upon in the escape. An hour later a police officer at some distance from the robbery observed an unoccupied blue-and-white Pontiac with what appeared to be a bullet crease over the rear window. The car was searched and an hour later when the defendant appeared he was arrested. The court held that the Constitution does not prohibit a reasonable search of an automobile when there is reasonable cause to believe that it contains contraband or stolen property, citing Scher v. United States, 305 U.S. 251 [59 S.Ct. 174, 83 L.Ed. 151]. Appellant’s petition for a hearing by the Supreme Court was denied.
Further authority supporting the legality of searches of nearby automobiles reasonably related to an arrest is found in People v. Moulton, 210 Cal.App.2d 673 [27 Cal.Rptr. 132] ; People v. Burke, 208 Cal.App.2d 149 [24 Cal.Rptr. 912] (hearing by Supreme Court denied) ; and People v. Daily, 157 Cal.App.2d 649 [321 P.2d 469].
People v. Koelzer, 222 Cal.App.2d 20, 27-28 [34 Cal.Rptr. 718] (hearing denied), is a case which in many respects is quite closely parallel to the instant case, although factually it is much weaker. This decision contains a most appropriate expression of the unreasonableness of all appellant’s vague contentions herein. In Koelzer, the events in question preceded the defendants’ arrest rather than immediately following it as in our present case. Too, the defendants there were merely suspected of having committed a crime, i.e., burglary, rather than having been caught in the very act as was appellant herein. The defendants therein were still present at the scene, but had not yet been arrested for the burglary itself. They denied ownership of the car in question, falsified as to the type of car they did own, and denied that they had driven to the scene in any car. Nevertheless, Justice Pierce aptly observed:
“Our zeal to fend off encroachments upon the right of privacy must be tempered by remembrance that ours is a government of laws to preserve which we require law enforcement officers — live ones. Without becoming a police state, we may still protect the policeman’s status. . . .
“The circumstances above related would themselves have justified the subsequent search of the motor vehicle. But when that search was made the officers had much more: They [516]*516had found the Volkswagen, the existence of which had been falsely denied; they had found it one-half block from the scene of the assumed burglary; they had ascertained the car belonged to Harry; and they had found Donald’s wallet and further equipment, usable by burglars, including a kit of tools, all in plain sight. This did not constitute a search. [Citations.]
“We will not assert that at this point the officers were required to say to defendants: ‘Now you boys wait right here while we go find a magistrate and get a search warrant which will permit us to lift the tarp and find what is beneath it.’ Such quixotisms of police procedure befit a Gilbert and Sullivan operetta libretto, not the serious business of real-life police investigation. ”
Of course, it should be stressed that we are not here confronted with any question concerning the right of the police indiscriminately to open or to conduct a true “search” of the interiors of vehicles found adjacent to a store where a recent theft has been committed merely because they believe that the thief might have arrived in one of them or that previously stolen goods might be found concealed therein. Ordinarily such general explorations probably would be quite improper and illegal.
In the instant case, however, the officers knew from appellant’s own statements that he had arrived at the scene in a particularly described car and one that was of a relatively rare variety. After he apparently had changed his mind and had withdrawn his expressed consent to the search of his described vehicle, it was entirely reasonable and proper for the officers to place him in jail for safekeeping and thereafter promptly to locate his car. When, upon its discovery, they could plainly observe in open view a plethora of articles whose stolen character was patent, they did not act unreasonably in confirming appellant’s ownership of the car and in impounding it. (Veh. Code, § 22651, subd. (h).) The stolen articles thus observed in, and removed from, appellant’s unlocked ear were properly received in evidence.
The judgment is affirmed.
Fleming, J., concurred.