People v. Shaw

21 Cal. App. 3d 710, 98 Cal. Rptr. 724, 1971 Cal. App. LEXIS 1113

• Court: California Court of Appeal
• Decided: December 1, 1971
• Docket: Crim. 18492
• Status: Published

Opinions

Opinion

FLEMING, J.

The court, having heretofore affirmed the judgment of conviction for possession of marijuana for purposes of sale and for unlawfully carrying a loaded firearm in a public place, now reconsiders the judgment in the light of Mozzetti v. Superior Court, 4 Cal.3d 699 [94 Cal.Rptr. 412, 484 P.2d 84], a decision made retroactive by Gallik v. Superior Court, 5 Cal.3d 855 [97 Cal.Rptr. 693, 489 P.2d 573]. Relevant to reconsideration are the following facts:

A number of police, aided by an informant and an undercover deputy, were engaged in consummating an elaborate drug purchase transaction. During the preliminaries two men walked up to the location (an apartment building), one of whom was identified by the undercover deputy as the potential seller of narcotics while the other, herein called X, was identified by the undercover deputy as the potential source of supply for the narcotics. A few minutes later the informant and the undercover deputy reported, to Officer Taranto that X had left to get the narcotics and would return with them within a half hour. X was wearing a leather jacket with a white peace symbol on it. Some time later the undercover deputy signalled that a sale had taken place, and the police undertook to spring the trap. An apartment inside the building was raided, and narcotics and narcotic paraphernalia were observed being thrown from a window of the apartment building. While the raid was taking place two men exited from a green Volkswagen in front of the apartment building, and the man on the driver’s side appeared to be X, since he was wearing a leather jacket with a white peace symbol. Officer Taranto detained X in front of the Volkswagen, searched him, and. found on his person a concealed loaded revolver. A search of the other man disclosed $580 in currency. Officer Taranto recalled a robbery report he had read earlier which had described two suspects similar to the two men detained. He arrested them on suspicion of robbery.

A search of the green Volkswagen at the location uncovered a quantity of marijuana in a storage compartment on the ledge behind the rear seats, material which was discovered when the lid of the storage compartment was lifted. It subsequently developed that there were two X’s, both wearing leather jackets with white peace symbols, and that the man who had been identified as the potential source of supply for narcotics had been arrested inside the apartment, while the man who had exited the green Volkswagen was appellant, a different person.

The issue is the propriety of the search of the Volkswagen.

The first problem arises from the officer’s testimony that his search of the Volkswagen at the scene was an inventory search. This explanation was tendered in the light of an unbroken line of 20 Court of Appeal cases dating from 1956 to 1970 upholding the propriety of such a search. In Mozzetti v. Superior Court, 4 Cal.3d 699 [94 Cal.Rptr. 412, 484 P.2d 84], such searches were disapproved. Although the search cannot be upheld for the reason given by the officer, if in fact reasonable cause for the search existed, the statement of the officer that he based his authority to search on a ground subsequently disapproved by the Supreme Court does not vitiate the validity of the search if other valid ground for the search existed.

We think the search was justified on two valid grounds:

1. The officer reasonably suspected that X was the source of supply for the narcotics and was engaged in the process of delivering narcotics for the proposed sale. Such reasonable belief would justify his arrest and the search of the Volkswagen. The fact that mistaken identity was involved did not detract from the reasonableness of the arrest.

2. After the preliminary detention of appellant Officer Taranto discovered a concealed loaded revolver on the latter’s person. This justified an immediate arrest. Officer Taranto recalled the robbery report and arrested two suspects on reasonable suspicion they were wanted for robbery. Such suspicion was supported by the discovery of the concealed loaded revolver and the discovery of the $580 on the person of the other suspect. In connection with these arrests an immediate search of the vehicle for weapons and stolen property was authorized. Such facts are similar to those in Chambers v. Maroney, 399 U.S. 42 [26 L.Ed.2d 419, 90 S.Ct. 1475], where petitioner was arrested in an automobile on suspicion of armed robbery and the subsequent search of the automobile at the police station uncovered revolvers and other evidence which, said the court, were properly used at the trial. The court said: “As the state courts correctly held, there was probable cause to arrest the occupants of the station wagon that the officers stopped; just as obviously was there probable cause to search the car for guns and stolen money.” (Pp. 47-48 [26 L.Ed.2d at p. 426].)

Since we find the search valid on the foregoing grounds, we do not consider the argument of the Attorney General that because the Volkswagen had been taken without permission of its owner appellant was not entitled to raise the issue of unlawful search.

The judgment is affirmed.