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District Court of Appeal, Third District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Lee INGLE, Defendant and Appellant.*

Cr. 2920.

Decided: September 10, 1959

Robert H. Cornell, San Francisco, for appellant. The Atty. Gen., Robert K. Puglia, Deputy Atty. Gen., for respondent.

This is an appeal from a judgment of the Superior Court of Madera County adjudging appellant guilty of two counts of violation of section 11500 of the Health and Safety Code. By Count I he was charged with unlawful possession of marijuana. By Count II he was charged with unlawfully selling marijuana.

At the time of his arrest appellant was sitting in an automobile with one Raymond Adame. Both men were arrested without warrant and searched. Incriminative evidence was found on both. This court heretofore affirmed the conviction of Adame. People v. Adame, 169 Cal.App.2d 587, 337 P.2d 477. We there held that Adame was lawfully arrested, lawfully searched, and we approved the admission in evidence of incriminating material turned up by the search. Herein appellant Ingle likewise contends that the incriminating material, such as marked money and marijuana, turned up by the search of his person at the time of the arrest was erroneously received over his objection that it was the product of unlawful search and seizure. We have concluded that Ingle's contention must be sustained and the judgment appealed from reversed as to him.

Adame and Ingle were tried together. Both had been arrested at the same time by the same police officers. Although for some time a narcotics inspector working with an informer and in cooperation with the Madera police had established contact with one Garcia, whereby the informer had made three or four purchases of marijuana cigarettes from Garcia, and although Garcia in furnishing cigarettes to the informer had used his automobile to go to Adame's house, from which inferentially he obtained his supply, which method of operation the police officers had watched, and although Adame thus figured prominently in the sales made by Garcia, nevertheless the connection of Ingle in the unlawful operations was first made manifest at the time of his arrest when he was found in Garcia's car with Adame shortly after Garcia had made a sale to the informer of a substantial number of cigarettes.

The conditions under which a peace officer may arrest and search without a warrant are well discussed in People v. Brown, 45 Cal.2d 640, 290 P.2d 528, and in People v. Simon, 45 Cal.2d 645, 290 P.2d 531. Pertinent here are the following statements of the Supreme Court in the latter case: ‘In People v. Brown [45 Cal.2d] p. 640, 290 P.2d 528, we held that a search incident to an arrest could not be justified in the absence of ‘reasonable cause’ under Penal Code, § 836, merely because it revealed that defendant was in fact guilty of a felony. Accordingly, the search of defendant's person may be justified only if he was committing or attempting to commit an offense in the officer's presence, Penal Code, § 836, subd. 1, or the officer had reasonable cause to believe he had committed a felony * * *.' People v. Simon, supra, 45 Cal.2d at page 648, 290 P.2d at page 533.

Applicable here also is the following quotation from People v. Brown, supra, 45 Cal.2d at pages 642–644, 290 P.2d at page 529:

‘There was no evidence of anything apparent to the officers' senses before the arrest and search that defendant was committing or attempting to commit a public offense. The arrest, therefore, cannot be justified on the ground that an offense was being committed or attempted in their presence. * * *

‘It should be noted at the outset that the legality of an arrest is not necessarily determinative of the lawfulness of a search incident thereto. Just as some searches may be reasonable and hence lawful in the absence of a warrant or an arrest * * *, others may be unreasonable and hence unlawful although incident to a lawful arrest. * * * Accordingly, the question presented is not whether the arrest of a guilty felon is lawful in the absence of reasonable cause for the officer to believe him guilty, but whether the search incident to the arrest is reasonable, * * *.

‘The United States Supreme Court has consistently held that a search, whether incident to an arrest or not, can not be justified by what it turns up. * * * It * * * it is necessary to rely on the search to justify the arrest, the conclusion is inescapable that a search that cannot be justified by what it turns up cannot justify the arrest. Moreover, whether or not the arrest of a guilty defendant is lawful, it is clearly unreasonable if the officer has no ‘reasonable cause’ to believe the defendant guilty, and a search incident thereto can be no more reasonable than the arrest itself.'

We hold that when Ingle was arrested the arresting officers had no reason to believe him guilty of a felony even though they did have good reason to believe that Adame was involved in the criminal actions of Garcia. Therefore the search that followed the arrest of Ingle was not a reasonable search, could not be justified by what was disclosed by it, and the indicia of crime which was thus turned up could not, over his objection, be admitted against him at his trial. When the issue of arrest and search first came up at the trial, the officer was asked why he believed Adame to have been guilty of a felony, that is the sale and/or possession of marijuana. The record shows the following:

‘Q. [By prosecutor.] Now, calling your attention to the night of January 22, 1958, were you so employed [as a police officer] that night? A. I was.

‘Q. Did you on that night have occasion to see the Defendant Adame seated here at the table? A. I did.

‘Q. Where was that? A. It was sitting in a 1948 Chevrolet club coupe in front of 915 Sonora Street. * * *

‘Q. Was there anyone else in that car? A. There was.

‘Q. Who? A. Richard Ingle. * * *

‘Q. What did you do when you first saw them? * * * A. We ordered them out of the car. I saw him seated in the car, got him out of the car, took him over to the side of the car, and searched him.

‘Q. When you ordered them out of the car, did you place them under arrest? A. I did.

‘Q. Whom did you search first? A. I searched Adame first.

‘Q. What did you find? * * * [Here the officer described a package of 12 marijuana cigarettes.]

‘Defendant Adame: Your Honor, at this time I would like to object on the ground that it was an illegal search and the evidence illegally gotten.’

In response to this objection the court directed the prosecuting attorney to further show the officer's reasons for arrest and search. The record then shows the following:

‘Q. [By prosecuting attorney.] Were you present when the Defendant Garcia was arrested? A. I was.

‘Q. Was he in his car at that time? * * * A. No, he wasn't.

‘Q. When you left Garcia, where were you going? A. Searching the area for Garcia's car.

‘Q. Did you have any knowledge, so far as Raymond Adame was concerned? A. I had knowledge that he was a known peddler or user of marijuana. * * *

‘Q. Based upon that knowledge and his presence in Garcia's car, was that the reason for his arrest? A. It was.’

The testimony proceeded and the officer described what had been discovered in the search of Adame, which included marijuana cigarettes and a small coin purse with some bills in it. These objects were exposed to ultra-violet lights which showed markings made upon the bills by the narcotics inspector and the presence of fluorescent powder put on the bills by him, thus identifying the bills as those the inspector had given to the informer to purchase marijuana from Garcia. The officer then testified as to the search of Ingle and as to its having turned up marked money identified as part of the money furnished by the inspector to the informer. These objects were marked for identification and later on were offered in evidence, whereupon Ingle objected that there had been no showing as to the reasonableness of the search of his person upon his arrest. The objection was good, but the objects were admitted in evidence against Ingle. The arresting officers had given no reason for the arrest and search of Ingle, except that he was seated in Garcia's car with Adame who was a known user and a peddler of marijuana. This was insufficient. People v. Simon, supra, 45 Cal.2d 649, 290 P.2d 534.

It is obvious that Ingle's rights were prejudiced seriously by the erroneous receipt in evidence of these objects and that for that reason the judgment against him must be reversed and the cause remanded for retrial. No other points need be discussed.

The judgment appealed from is reversed as to appellant Ingle and the cause is remanded.

VAN DYKE, Presiding Justice.

SCHOTTKY, J., and WARNE, J. pro tem., concur.

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