PEOPLE v. GROVES

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Court of Appeal, First District, Division 4, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Freddy GROVES, a.k.a. Frederick Wellington Crane, Defendant and Appellant.

Cr. 6827.

Decided: February 20, 1969

Frederick C. Michaud, San Jose, for appellant (under appointment of the Court of Appeal). Thomas C. Lynch, Atty. Gen., of the State of California, Robert R. Granucci, Joyce F. Nedde, Deputy Attys. Gen., San Francisco, for respondent.

For Opinion on Hearing, see 80 Cal.Rptr. 745, 458 P.2d 985.

Freddy Groves appeals from a judgment of conviction of second degree burglary (Pen.Code, § 459) contending that objects seized in his apartment at the time of his arrest were improperly admitted into evidence at his jury trial.   Appellant contends that the evidence was inadmissible because it was seized in a search of his apartment after an unlawful arrest.   He asserts that the arrest was improper because, first, it was based upon an arrest warrant which is invalid under People v. Sesslin (1968) 68 Cal.2d 418, 67 Cal.Rptr. 409, 439 P.2d 321, and second, it was merely a subterfuge on the part of the police to enable them to search his apartment.   We affirm the judgment.

On the afternoon of December 9, 1966, two employees of the University of California (at the Medical Center in San Francisco) heard a pay telephone alarm system ring.   They walked from their office into a corridor where they saw two men at the telephone to which the alarm was connected;  one was standing next to the telephone booth and the other was seated in it.   Approaching to within a few feet, the employees asked the men if they had taken money from the telephone;  one of the men said they had not, and both then left.   The men were observed running down the street outside the building.

Appellant was identified by means of mug shots shown to the employees by a security agent of Pacific Telephone Company.   After a similar mug shot identification at the San Francisco District Attorney's office, a warrant for the arrest of appellant on a charge of burglary was issued.   These identifications were repeated at the preliminary hearing and at trial.

Because the mug shot of appellant had been obtained from the telephone company's Los Angeles Office, the Los Angeles Police Department was notified.   Appellant was arrested at an apartment he was occupying in Los Angeles;  the arresting officers followed appellant into the subterranean parking lot of the apartment building, into an elevator which took them to the second floor, down a hallway, and into appellant's apartment where the arrest was actually made.   Immediately upon arresting appellant the officers searched his apartment.   The following items, among others, were discovered in that search:  coin wrappers, a key to the upper housing of a pay telephone, a $100 bill, an airline baggage tag, and a San Francisco garage ticket.

The only evidence introduced at trial connecting appellant directly to the alleged burglary were the eyewitness identifications.   The evidence seized at appellant's apartment was introduced by the prosecution in order to show both that appellant had been in San Francisco and that he possessed objects that only a telephone burglar would be likely to have.

 In People v. Sesslin, supra, 68 Cal.2d 418, 422, 67 Cal.Rptr. 409, 439 P.2d 321, the Supreme Court held that the Fourth Amendment forbids the issuance of an arrest warrant based upon a complaint, made upon information and belief, which does not allege underlying facts allowing the magistrate independently to find probable cause.   The warrant for this appellant's arrest was defective under Sesslin.   However, the issuance of the warrant (December 16, 1966), the arrest (January 4, 1967), and the trial (July 19, 1967) all occurred before the Sesslin ruling was announced (April 10, 1968).   Thus the question before us is whether Sesslin should be given retroactive application.   In People v. Gardner (1968) 266 A.C.A. 11, 15, 71 Cal.Rptr. 568, the Court of Appeal in the Second Appellate District has held that Sesslin controls all cases still in process of direct review.   A petition for hearing in the Supreme Court was denied, but the Sesslin point was not urged.   For reasons given below, we have concluded that the new rule applies only to arrests made after April 10, 1968, the date of Sesslin.

 Prior to Linkletter v. Walker (1965) 381 U.S. 618, 628, 85 S.Ct. 1731, 14 L.Ed.2d 601, constitutionally-based decisions were routinely given retroactive effect.   However, the United States Supreme Court in that case declared that retroactive application was not a constitutional requirement.   Later cases have distinguished between rulings which should be retroactive and those which may appropriately be prospective in application.   The first question is whether a constitutional rule of criminal procedure condemns a practice which greatly affects the integrity of the truth-determining process or merely forbids a practice which, while constitutionally repugnant, need not have affected the integrity and reliability of past trials.  (Stovall v. Denno (1967) 388 U.S. 293, 298–299, 87 S.Ct. 1967, 18 L.Ed.2d 1199;  Johnson v. New Jersey (1966) 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.)   Additional factors which militate in favor of prospective application are the likelihood of a serious disruption in the administration of criminal justice to be expected from retroactive application (Stovall v. Denno. supra, at p. 300, 87 S.Ct.1967), and any lack of warning to law enforcement officials, in prior decisions, that their conduct was unconstitutional.  (Johnson v. New Jersey, supra.)

Applying these tests, the Supreme Court has often determined in recent years that a decision should be of prospective application only.   (Linkletter v. Walker, supra, 381 U.S. 618, 85 S.Ct. 1731 [excluding evidence seized in illegal search in state cases]'  Tehan v. U.S. ex rel. Shott (1966) 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 [comment on defendant's exercise of Fifth Amendment right to silence];  Johnson v. New Jersey, supra, 384 U.S. 719, 86 S.Ct. 1772 [Miranda–Escobedo rules];  Stovall v. Denno, supra, 388 U.S. 293, 87 S.Ct.1967 (right to counsel at lineup].)  In these cases the court has emphasized that the chief purpose of the rules being applied was deterrence of illegal law enforcement activity, rather than direct protection of the constitutional right to a fair trial.   Previous decisions which went to the heart of the trial as a truth-seeking process were applied retrospectively (e.g., Jackson v. Denno (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 [exclusion of involuntary confession];  Pickelsimer v. Wainwright (1963) 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 [Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, right to counsel];  Eskridge v. Washington Prison Bd. (1958) 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 [Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, right to transcript] ).  The California Supreme Court has generally applied new constitutional doctrine to all cases still in process of review when the new rule is announced.  (People v. Charles (1967) 66 Cal.2d 330, 335, 57 Cal.Rptr. 745, 425 P.2d 545, cert. den. 389 U.S. 872, 88 S.Ct. 159, 19 L.Ed.2d 153.)   But in several cases new principles not bearing on the integrity of the trial as a fact-finding process have not been applied to cases still under direct review (e.g., Maine v. Superior Court (1968) 68 Cal.2d 375, 384, n. 9, 66 Cal.Rptr. 724, 438 P.2d 372;  People v. Feggans (1967) 67 Cal.2d 444, 448, 62 Cal.rptr. 419, 432 P.2d 21;  People v. Rollins (1967) 65 Cal.2d 681, 686, 56 Cal.Rptr. 293, 423 P.2d 221).

 The Sesslin rule is not designed to curb practices which are likely to lead to the conviction of innocent defendants.   Rather, it is intended to insure that police intrusion into the private lives of citizens will occur only after the facts have been considered by a neutral and detached magistrate.   (See Aguilar v. Texas (1964) 378 U.S. 108, 110, 84 S.Ct. 1509, 12 L.Ed.2d 723.)   As it is thus a rule intended to deter future illegal law enforcement activity, retrospective application would serve no purpose.   Moreover, the type of complaint condemned in Sesslin was very commonly used before the Supreme Court declared the new rule;  thus retroactive application, even if limited to cases not yet final on April 10, 1968, would compel reversal of a considerable number of cases.   We therefore hold that the rule announced in People v. Sesslin, supra, is to be applied only in cases where arrests were made after April 10, 1968.   Appellant's contention that the warrant was invalid must be rejected.

 Appellant next contends that, even if the warrant and resulting arrest were valid, the introduction of evidence seized in a search incident thereto was error because the police delayed the arrest in order to search appellant's apartment;  this contention is based chiefly upon the fact that the arrest was made inside appellant's apartment rather than in the garage where the police first had appellant under their control.   A search incident to an arrest which is merely a pretext for the search is not reasonable within the meaning of the Fourth Amendment.  (People v. Haven (1963) 59 Cal.2d 713, 719, 31 Cal.Rptr. 47, 381 P.2d 927.)   Where the “sole basis” for the arrest of a suspect at his home was the desire to search those premises, evidence seized there is inadmissible (Hood v. Superior Court (1963) 220 Cal.App.2d 242, 247, 33 Cal.Rptr. 782).   The trial court overruled an objection to the introduction of the evidence after hearing testimony on the question of the arresting officers' intent.   The arrest was completed at the end of continuous movement during which the officers and the suspect passed from the garage through the building and into appellant's apartment.   That evidence does not compel the conclusion that the sole basis for the arrest was the officers' desire to search the apartment;  that is only an inference which appellant seeks to draw from their conduct.   There is substantial evidence, including the testimony of the arresting officer, that the arrest was made in appellant's apartment for reasons independent of any desire to search those premises.   In the light of such evidence we will not disturb the trial court's finding that the arrest was not a mere pretext or subterfuge.

The judgment is affirmed.