PEOPLE v. STOUT

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District Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. James Edward STOUT and Katherine Frances Culp, Defendants and Appellants.

Cr. 4807.

Decided: March 18, 1966

Edward L. Cragen, San Francisco, for appellants. Thomas C. Lynch, Atty. Gen., Edward P. O'Brien, Michael R. Marron, Deputy Attys. Gen., San Francisco, for respondent.

Defendants James Stout and Katherine Culp were jointly charged by information with possession of marijuana; transportation of marijuana; possession of forged documents; receiving stolen property; removing identification marks from a firearm; conspiracy to commit the crimes of possession of marijuana and possession of forged documents; and the commission of two overt acts (carrying a small suitcase and driving or riding in an automobile) in furtherance of such conspiracy. Defendants were also charged with having been in possession of a deadly weapon at the time of the commission of each of the above-mentioned offenses.

Defendants were tried and found guilty as charged; Stout was sentenced to state prison, but the imposition of sentence was suspended with respect to defendant Culp and probation was granted upon condition that she serve six months in the county jail. Both defendants appeal.

The evidence relevant to the issues dispositive of this appeal may be summarized as follows: In the forenoon of January 6, 1964, a Mrs. McMeen saw the defendant Stout put a blue overnight bag behind some dirt on the construction site of a new church at Camden and Olympia Streets in San Jose. She telephoned the San Jose Police Department about her observation, who in turn called Officer Ankenbauer in his patrol car and advised that ‘someone [was] putting a suspicious package at the rear of the church’ at the named address. He was directed to go to the address and investigate but was not told why the package was considered ‘suspicious' and was not furnished with a description of the package or of the person who had placed it behind the church.

After her call to the police, Mrs. McMeen continued to watch Stout, who was standing in front of the church. She saw an automobile pull up and stop by him and as it did so, he ran and got the bag, and came back with it to the car. He placed the bag in back of the rear seat and then got into the car. At this time the police car arrived and Mrs. McMeen pointed at Stout and said to Ankenbauer, ‘There he is.’ Ankenbauer went directly to the driver's side of the car and asked the driver, defendant Culp, for her driver's license. After she had handed him her license, the officer then asked Stout what was in the overnight bag, and he replied that it belonged to the lady who was driving the car, that she was having trouble with her husband, and that he was helping her out. Ankenbauer then made a remark indicating his intent to examine the contents of the bag and started to walk around the back of the car. As he reached the rear of the car, defendant Culp drove off in a burst of speed.

The pursuit which subsequently ensued terminated when the Culp vehicle stalled. When Ankenbauer approached the vehicle, defendant Stout got out and ran off carrying the overnight bag. The officer pursued on foot and caught him within a short distance. They returned to the car, whereupon Stout threw the bag to defendant Culp and held Ankenbauer until she had driven off. Defendant Stout was then placed under arrest for interfering with an officer.

In the meantime, defendant Culp drove to a service station and was seen to deposit the overnight bag in a trash pile there. She then returned to the area where she had left defendant Stout and the officer, who placed her under arrest for speeding, reckless driving, and resisting arrest.

The overnight bag was subsequently recovered by the police and was found to contain 26 tobacco cans and three paper bags containing marijuana, several small vials containing amphetamine, 39 payroll checks which were later found to have been stolen and altered, hypodermic needles, eyedroppers, needle containers, a blackened spoon, and a loaded revolver with the serial number removed from the butt.

A search of the Culp vehicle resulted in the discovery of certain cards and papers which tended to connect defendants with one another and with the payroll checks found in the overnight bag. The police obtained other corroborative evidence by searching defendant Stout, defendant Culp's purse, and the premises where the two defendants resided. The latter search was conducted pursuant to a search warrant, with the affidavit in support thereof averring that defendants had been arrested at a time when they were both in possession of marijuana and payroll checks which were stolen and forged.

Under questioning by the police, defendant Culp admitted that the overnight bag was hers, but claimed she did not know its contents.

Defendant Stout admitted ownership of a wallet found on his person, gave his name and address, and stated that he was married and had two children. He refused to make any other statement to the police.

Neither defendant testified at the trial.

Defendants' appeal turns upon the question as to whether or not the trial court erred in denying their motion to suppress evidence (namely, the blue overnight bag and its contents). Defendants contend that said evidence was obtained illegally in that at the time of their initial encounter with Officer Ankenbauer, there was no probable cause for their arrest or for a search incidental thereto; that Ankenbauer nevertheless threatened to make a search of the overnight bag, which caused defendants to flee the scene for the sole purpose of avoiding an illegal search, which would have disclosed their possession of the contraband that subsequently resulted in their convictions.

We are convinced that the trial court erred and that the evidence should have been suppressed. The rule applicable here-to has been set forth in Badillo v. Superior Court (1956) 46 Cal.2d 269, 294 P.2d 23, and Gascon v. Superior Court (1959) 169 Cal.App.2d 356, 337 P.2d 201.

In the Badillo case, petitioner fled from a house which had been illegally entered by federal narcotics agents and hurled a package of heroin toward one of the agents, who recovered it. The court held that since the flight and the attempted disposal of the evidence were the direct result of the illegal entry, the evidence was obtained in violation of the constitutional guarantees against illegal search and seizure.

In the Gascon case, petitioner had just emerged from a liquor store when he was stopped by two police officers and questioned. When he admitted that he had been ‘busted’ before and evinced nervousness during the questioning, the officers threatened to search him. He then attempted to flee and, in the course of doing so, threw away a tinfoil package which was recovered and found to contain marijuana. The court held that the Badillo case was controlling and that the evidence had been obtained in violation of petitioner's constitutional right to be free from illegal search and seizure. The court stated: ‘There being no probable cause for arrest, if the officers had carried out their threat to search petitioner's person and had found the contraband in the process of the search, there would be no question but that the evidence was illegally obtained and, therefore, inadmissible. [Citations.]

‘In the present case petitioner's flight was caused by the threat of the officers to illegally search his person which they could, without question, have put into effect, and the discarding by the petitioner of the evidence upon his person was but a product of the threat.’ (P. 358 of 169 Cal.App.2d, p. 202 of 337 P.2d.)

Here, the People concede that when the officer initially approached defendants, he had no probable cause for arrest. However, the People deny that the officer ever threatened to search the overnight bag before defendants fled from the scene. This contention cannot be sustained in view of the officer's testimony, which constitutes the only evidence bearing upon his conduct at the time in question.

On direct examination, Ankenbauer stated that he walked to the Culp vehicle and asked for and was given defendant Culp's driver's license. ‘And by that time this man had got into the car on the passenger's side after he had placed the package or bag in the back of the front seat. I asked him what was in the little bag or package and he said, ‘Oh, this belongs to the lady here who is driving the car. She is having trouble with her husband and I am just helping her out.’ And I says, ‘Well, you wouldn't mind then if I take a look in the bag?’ And at that point I started walking around to the rear of the car to get on the passenger's side so I could take a look at the bag. When I got to the rear of the car the driver had taken off at a burst of speed * * *'

When defense counsel objected and was allowed to conduct a voir dire examination of the witness, the following transpired: ‘Q. She handed her operator's license; is that right? A. Yes. Q. Did you have any further conversation regarding the operator's license? A. No, sir. Then when she handed me the operator's license, I asked the man that got in the car, Mr. Stout, ‘What do you have in the little bag? Oh, he says, ‘This belongs to the driver here. She is having trouble with her husband and I am just helping her out.’ Q. I see. And was there any other conversation you had with the occupants of that car? A. No. All I said was, ‘I'd like to take a look in the bag.’ Q. You said you'd like to look inside the bag; isn't that correct? A. Yes. Q. And what was her answer to that? A. Just took off. Q. I see. I take it you wanted to look inside the bag and you left to go to look at the bag; is that right? A. Yes. I had left and was going to go around the other side and continue the conversation. Q. In other words, you said you'd like to look inside the bag and at that point you turned and walked around the back of the car with your intention being to open the door, take the bag out and look at it; is that correct? A. Yes, talk to Mr. Stout. Q. And at that point the defendants left; is that correct? A. Yes.'

The prosecutor then asked the following questions of the witness: ‘Q. Now, may I ask you, Officer Ankenbauer, did you tell him you were going to look in the bag or did you ask him if you could? A. I asked him if I could look in the bag. Q. What were your words as near as you can recall in that respect? A. Well, when he stated that the bag belonged to Mrs. Culp, I said, ‘Well, I guess you wouldn't mind then if I take a look in the bag? Is it all right?’ I started walking around the back of the car and then they took off on me. Q. I see. Now, at that time when you walked around the car, you were going to what place? A. Around to the passenger's side of the car to continue the conversation with Mr. Stout regarding the bag. Q. I see. Were you going to talk to Mr. Stout further before you did anything respecting the bag? A. Yes. Q. And were you going to ask Mr. Stout any other questions respecting the bag? A. Yes. Q. Were you going to ask him if he would let you look in the bag? A. That's right. Q. Again? A. Yes. Q. I see. But you didn't have that opportunity; is that correct? A. No.'

Defense counsel then asked one further question on voir dire: ‘Q. It was your testimony, I believe, just a few minutes ago and prior to this time that it was your intention when yon went around the back of the car to look in to see what the contents of the bag were; isn't that correct? A. Yes.’

In the face of the above testimony, we have no doubt that Ankenbauer's statement that he'd like to look in the bag or that defendants wouldn't mind if he looked in the bag, coupled with his act of immediately commencing to walk around the car, would have caused any reasonable person to believe that a search was imminent. Stated differently, the remark, followed immediately by the act of starting around the car, demonstrated both a clear and unequivocal intent of the officer to conduct a search and an affirmative action in furtherance of such intent. It similarly cannot be doubted that if defendants had not driven off when they did, the search would in fact have been accomplished. Although the People place great stress upon the testimony elicited by the prosecutor's leading questions that Ankenbauer actually intended to continue his conversation with defendant Stout when he reached the passenger side of the car and to ask his consent to search the bag, any such intent obviously could not have been apparent to defendants. Since Ankenbauer commenced his journey around the car immediately after expressing a desire to look in the bag and since he had previously experienced no difficulty in questioning Stout from the driver's side of the car, defendants could only have assumed that his change of position was primarily motivated by his intent to search rather than his intent to converse further with defendant Stout. Under such circumstances, it is apparent that defendants' flight and their attempt to dispose of the contraband were the direct product of a threatened illegal search and that such evidence ought to have been excluded under the rule of the above mentioned cases.

The People make no attempt to contend that the admission of the illegally obtained evidence was nonprejudicial. Indeed, the contents of the overnight bag and defendants' evasive conduct constituted the fulcrum of the prosecution's case and also furnished probable cause for defendants' arrest and for the other searches conducted incidental thereto.

In the light of the foregoing, it is unnecessary to discuss defendants' other assignments of error.

Judgment reversed.

SHOEMAKER, Presiding Justice.

AGEE and TAYLOR, JJ., concur.

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