PEOPLE v. CORRIGAN

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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Damon Charles CORRIGAN, Defendant and Appellant.

AO18438.

Decided: November 01, 1983

John K. Van De Kamp, Atty. Gen., Thomas A. Brady, Mark S. Howell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Philip H. Pennypacker, Conflict Administrator, John Ashford Thompson, Christine Hunsaker, Gretchen O. Burford, San Jose, for defendant and appellant.

Defendant Corrigan's appeal is from an order granting probation (termed “judgment” in the notice of appeal) following a negotiated plea in which he pleaded guilty to first degree (nighttime) burglary.

He urges Fourth Amendment error in the trial court's denial of his Penal Code section 1538.5 motion to suppress evidence, and Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) error in respect of statements made by an accomplice, one Gergurich, incriminating him in the burglary.   The claimed tainted statements led to the discovery of stolen property in Corrigan's possession.   It is argued that:  “The statements of the defendants were tainted because of the illegal detention.  (A) Mr. Gergurich's statement was the direct product of an illegal arrest and was not attenuated.   (B) Mr. Corrigan's statement was not sufficiently an act of the free will to purge the primary taint.”

For reasons we now state we find no merit in the appeal, and affirm the order granting probation.

As to the suppression motion:  “ ‘A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the [trial] court sitting as a finder of fact.’  ․   In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.   On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.”  People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.

And:  “[T]he trial court's ruling on a Miranda issue may not be set aside by us unless it is ‘palpably erroneous.’   A ruling palpably erroneous is one lacking support of substantial evidence․  And of course ‘[w]hen two or more inferences can reasonably be deduced from the facts,’ either deduction will be supported by substantial evidence, and ‘a reviewing court is without power to substitute its deductions for those of the trial court.’ ”  (People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 670, 145 Cal.Rptr. 795.)

Here, as indicated, as to each of Corrigan's motions, the trial court had denied him any relief.

We state the relevant evidence.

Awakened one morning between 1:00 and 2:00 a.m., a Los Gatos resident observed a prowler in her home who, upon his discovery, promptly departed.   She and her husband found a purse, jewelry, and money missing.   The incident was promptly reported to the police department and a police officer quickly responded.   However, in the darkness the officer was not able to readily find the home whose street number had been reported.   Investigating in the neighborhood he, or another, observed opened outside doors of a nearby house, rang the doorbell, and advised its occupants.   There the occupants were missing two cameras and a purse.   Soon thereafter the home of the reporting victim was located.   An officer commenced looking for nearby suspicious persons or vehicles.   He observed a Volkswagen automobile with three male occupants.   The Volkswagen was stopped by the officer because of its proximity in time and place to the burglaries.

The officer asked the three men to exit the automobile, which they did.   As they did, the officer observed “a camera sitting in plain view on the front floorboard of the vehicle.”

 (During the course of a lawful investigation detention, a police officer may lawfully observe property in plain view.  People v. Mack (1980) 27 Cal.3d 145, 150, 165 Cal.Rptr. 113, 611 P.2d 454.)

Having seen an expensive and ill-treated camera in the car (“it wasn't in a case [and it] was lying on the floorboard”), and aware of the men's proximity to the recent burglary in which cameras were stolen, the officer's suspicions were enhanced.   He subjected the car's occupants to here unchallenged and unproductive weapons searches.   One of the men was asked who owned the camera;  “he didn't even know who it belonged to [and] finally said it was his.”   Again looking into the vehicle another camera was seen on the backseat floorboard.   Asked who owned it, one of the men pointed to another, and “said it was his.”   Denying ownership, the purported “owner” pointed back to the declarant and “said it was his.”  (Further investigation disclosed that the cameras had been stolen in one of the nearby burglaries.)

Upon discovery of the cameras in the automobile and its occupants' inconsistent statements concerning their ownership, there was patently probable cause for their arrest.  (People v. DeVaughn (1977) 18 Cal.3d 889, 895, 135 Cal.Rptr. 786, 558 P.2d 872.)   And the arrest ended the detention, which may therefore not reasonably be said to have been “unduly prolonged.”  (See People v. McGaughran (1979) 25 Cal.3d 577, 159 Cal.Rptr. 191, 601 P.2d 207, passim.)

Defendant Corrigan was not one of the three men in the Volkswagen automobile.   His argument is that his complicity in the burglaries became known to the police, only as a result of the above-noted automobile stop which he insists was an unconstitutional police detention.  (The record indicates that the informing accomplice and later, Corrigan, were properly admonished according to Miranda.)

 The issue before us is whether under the Fourth Amendment, a police officer, with knowledge that a serious crime had been committed a short time before in the neighborhood and with probable cause to believe that its perpetrators were at large nearby, or fleeing, may in his investigation and without probable cause to believe that the perpetrators are in any particular automobile, briefly stop and detain passing vehicles for questioning of their occupants.

Initially we opine that there can reasonably be no doubt here, that serious crimes, i.e., first degree nighttime burglaries of homes with sleeping occupants, had been committed minutes before.   Indeed, the Legislature authorizes a greater penalty for such offenses, than for robbery.  (Cf. Pen.Code, §§ 213 and 461.)

Our examination of relevant authority reveals the following.

Delaware v. Prouse (1979) 440 U.S. 648, 655, 99 S.Ct. 1391, 1397, 59 L.Ed.2d 660.   The Supreme Court does “not invalidate all warrantless automobile stops upon less than probable cause․  [Considerations are] ‘the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives․' ”

Adams v. Williams (1972) 407 U.S. 143, 145–146, 92 S.Ct. 1921, 1922–1923, 32 L.Ed.2d 612.  “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.   On the contrary, ․ it may be the essence of good police work to adopt an intermediate response․  A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.”

Brinegar v. United States (1949) 338 U.S. 160, 183, 69 S.Ct. 1302, 1314, 93 L.Ed. 1879.   In a widely discussed dissent of Mr. Justice Jackson, he found himself unable to approve a roadblock designed to apprehend minor offenders.   But in language concerning which the majority expressed no disapproval, the Justice said:  “If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search.   The officers might be unable to show probable cause for searching any particular car.   However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to detect a vicious crime.”

People v. Schader (1965) 62 Cal.2d 716, 724, 44 Cal.Rptr. 193, 401 P.2d 665.   In attributing “significance” to an officer's knowledge of a serious crime and its close proximity in time and place, the high court quoted with approval the above-noted comment of Justice Jackson in Brinegar v. United States, supra, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.

People v. Gale (1956) 46 Cal.2d 253, 256, 294 P.2d 13.   Where it “does not appear [that police] were attempting to apprehend any known fleeing criminals,” the court found constitutionally intolerable, “a routine search of vehicles ‘to curb the juvenile problem and also check for, well, anything that we might find, anything that looked suspicious.’ ”

People v. Glover (1979) 93 Cal.App.3d 376, 383, 155 Cal.Rptr. 592.   “While ․ knowledge that the culprits had just committed a particularly atrocious crime might conceivably be a factor which should be considered in favor of such methods,” routine or general vehicle searches were found constitutionally invalid.

Lacy v. State (Alaska 1980) 608 P.2d 19, 21, 22.  “It is our view that roadblocks can properly be established when a serious crime has been committed for purposes of investigation or apprehension of a suspect where exigent circumstances exist and where the roadblock is reasonable in light of the particular circumstances of the case.   That essentially is the position taken by the Model Code of Pre-Arraignment Procedure, most commentators and the relatively few cases which have dealt with the issue․  The roadblock established here fits easily within the requirements for a lawful roadblock.   A serious crime had recently been committed.   The investigating officers had reason to believe that the criminal was in the area and would be exiting from it on the road where the roadblock was established.   We conclude, therefore, that the roadblock stop of Lacy's vehicle was lawful.”

State v. Silvernail (1980) 25 Wash.App. 185, 605 P.2d 1279, 1283.   Officers were informed that a nearby “violent crime” had been committed, and a roadblock was set up for automobiles leaving the area.  “There was, therefore, a reasonable likelihood of success and a minimal intrusion on the traveling public.   This roadblock and search for suspects was proper.”   And the above-quoted portion of Justice Jackson's dissent in Brinegar v. United States, supra, was noted with approval.

State v. Torres (1973) 29 Utah 2d 269, 508 P.2d 534, 535–536.  “We do not disagree with one basic proposition which underlies defendant's argument:  that police officers may not arbitrarily and without justification stop automobiles of law-abiding citizenry to conduct ‘fishing expedition’ searches for evidence of some crime․  But to be weighed with this are the practical exigencies involved in law enforcement.   When a serious crime has been committed, the law-abiding citizenry should be willing to put up with a moderate amount of inconvenience to cooperate with officers attempting to capture suspects.   In some situations it is necessary and therefore justifiable to resort to measures which otherwise might be considered improper intrusions, such as setting up roadblocks and checking cars or conveyances in the area.   In such exigencies it is essential that a reasonable degree of tolerance be indulged as to the judgment of police officers, so long as they are acting in good faith and within standards of decent and decorous behavior.”

People v. Euctice (1939) 371 Ill. 159, 20 N.E.2d 83, 84, 85.   Following a robbery-related murder, police officers were “given a description of the men and instructed to go to a point on Route 66 and stop and search all cars.   The officers had stopped about one hundred cars but had waved on all but fifteen or twenty before defendants approached, the officers explaining that those waved on did not look suspicious․  [A] crime had, in fact, been committed and, according to the information received by the officers, the criminals were driving northward on Route 66 in the vicinity of where the officers were stationed.   Euctice was said to have answered the description of one of the men given in the radio call.   Under such circumstances, the arrest was lawful, and the officers had a right to search defendants without a search warrant, for in such case the right of search and seizure is incidental to the right to arrest․  The court, therefore, did not err in denying the petition to suppress.”

United States v. Kuntz (N.D.N.Y.1967) 265 F.Supp. 543, 548.  “If probable cause, an elusive concept, must be determined here, I think the fact of armed robbery itself, known to the police officers as having occurred in the near vicinity, the alarm to the police with descriptions and warnings, the obvious conclusion the robbers would be fleeing the scene of the crime and the area, the specific acts and conduct of Kuntz and his resemblance somewhat to the broadcast physical description of one of the robbers, and his failure to produce the proper registration give adequate support for probable cause to arrest lawfully and search.”

3 LaFave, Search & Seizure (West Pub. Co., 1978) chapter 9, section 9.5, page 142.   Professor LaFave sums up related authority in this manner:  “[W]hile the roadblock tactic, as compared to the typical stop and frisk situation, requires more evidence that a crime has occurred, by its very nature it requires less evidence that any particular vehicle stopped is occupied by the perpetrator of that crime.   Indeed, there need be no suspicion at all with regard to any particular vehicle, except that which exists by virtue of it being in the locale of the [crime's commission.] ”

Where the circumstances were reasonably similar to those of the case before us, our research has disclosed no authority condemning such an automobile stop and detention as here occurred.

We accordingly find no constitutional or other error in the trial court's criticized rulings.

The order granting probation is affirmed.

I concur in the result solely on the basis of a lawful traffic violation detention during which reasonable cause to effect a felony arrest became manifest.   I do not agree that the validity of the original determination can or should be justified on a “roadblock” analysis, a questionable theory neither advanced below nor argued on appeal.

The record discloses the following material facts,1 unmentioned in the lead opinion, which uncontrovertibly establish the validity of the traffic stop:  as the arresting officer searched for the burgled residence, possessed of no information regarding either the identity of a possible suspect or automobile description, he observed the white Volkswagen execute a wide turning movement by crossing over the double yellow line into the northbound lane and straddling the separating cement chatterbars in the process.   The errant maneuver constituted a violation of Vehicle Code sections 21650 (failure to stay on right side of roadway) and 22107 (unsafe turning movement without signals) and amply supported the officer's reasonable suspicion of driving under the influence of alcohol (Veh.Code, § 23152) and reckless driving (Veh.Code, § 23103) justifying a traffic stop.  (See generally People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 812, 91 Cal.Rptr. 729, 478 P.2d 449;  People v. Powell (1973) 33 Cal.App.3d 802, 806, 109 Cal.Rptr. 399.)   Those circumstances alone warranted the officer's reasonable belief that a traffic detention was required to investigate the commission of public offenses in his presence.  (Pen.Code, § 836, subd. (1);  People v. Tuck (1977) 75 Cal.App.3d 639, 645, 142 Cal.Rptr. 362.)   Following such proper detention, the officer was empowered to arrest and book the driver for his failure to produce either a driver's license or other satisfactory evidence of identity (Veh.Code, § 40302, subd. (a);  Pen.Code, § 836, subd. (1)) and—under the circumstances shown—to order the occupants to alight from the automobile.  (People v. Mickelson (1963) 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658;  People v. Remiro (1979) 89 Cal.App.3d 809, 829, 153 Cal.Rptr. 89, cert. den., 444 U.S. 876, 100 S.Ct. 160, 62 L.Ed.2d 104 and 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197.)   The officer's simultaneous “plain view” observations (People v. Block (1971) 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 499 P.2d 961) of valuable camera equipment, coupled with the occupants' inconsistent statements concerning ownership—in light of the reported burglary and later information concerning a camera theft from the nearby residence—provided an adequate legal basis to maintain the detention (People v. Suennen (1980) 114 Cal.App.3d 192, 201, 170 Cal.Rptr. 677) and ultimately to arrest the occupants on suspicion of the commission of the crime of burglary.  (Cf. People v. Leyba (1981) 29 Cal.3d 591, 599–600, 174 Cal.Rptr. 867, 629 P.2d 961; 2  People v. DeVaughn (1977) 18 Cal.3d 889, 895, 135 Cal.Rptr. 786, 558 P.2d 872.)

Given such a straightforward analysis to uphold the detention and arrest, I am at a loss to comprehend the lead opinion's insistent and overbroad reliance on a roadblock theory in order to decide the merits of a relatively uncomplicated Fourth Amendment claim.   In reaching out to inject and discuss a nonissue (which, I repeat, was neither briefed nor argued herein), the lead opinion sweeps in the highly debatable proposition that a reported burglary will justify the random stop and investigation of any motorist within the vicinity of the reported crime.   Not only has such a blanket investigation tactic been narrowly limited in the context of routine vehicle inspections and exceptional exigencies (3 LaFave, Search and Seizure (1978) ch. 9, § 9.5, pp. 140–145), but the few cases upon which the lead opinion relies which discussed the question are wholly dissimilar or involved compelling factual circumstances.  (See, e.g., Delaware v. Prouse (1979) 440 U.S. 648, 665, 99 S.Ct. 1391, 1402, 59 L.Ed.2d 660 [dictum relating to border stops];  Lacy v. State (Alaska 1980) 608 P.2d 19, 21–22 [roadblock of single exit road from scene of brutal rape];  State v. Silvernail (1980) 25 Wash.App. 185, 605 P.2d 1279, cert. den., 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51, disapproved on other grounds in State v. McKim (1982) 98 Wash.2d 111, 653 P.2d 1040, 1043 [general detention and inquiry of ferry boat passengers concerning reportedly fleeing suspects in an aggravated robbery burglary];  State v. Torres (1973) 29 Utah 2d 269, 508 P.2d 534 [single car stop in investigation of recent nearby armed robbery];  People v. Euctice (1939) 371 Ill. 159, 20 N.E.2d 83, [highway stop of 100 vehicles in search of murderer of a police officer];  United States v. Kuntz (N.D.N.Y.1967) 265 F.Supp. 543 [armed bank robbery involving possible car switch].)

Moreover, none of the California decisions cited in the lead opinion may be read to condone routine vehicle searches in the absence of orthodox reasonable cause.  (People v. Schader (1965) 62 Cal.2d 716, 724–725, 44 Cal.Rptr. 193, 401 P.2d 665, overruled on other grounds in People v. Satchell (1971) 6 Cal.3d 28, 35, 98 Cal.Rptr. 33, 489 P.2d 1361 [warrantless arrest of suspected murderers upheld in connection with identified getaway vehicle;  Brinegar dissent language cited in underscoring significance of officer's knowledge of robbery murder of policeman in undertaking precautionary arrest];  People v. Gale (1956) 46 Cal.2d 253, 256–257, 294 P.2d 13 [routine vehicle search and arrest by local law enforcement officer at border “check station” held invalid];  People v. Glover (1979) 93 Cal.App.3d 376, 382–383, 155 Cal.Rptr. 592 [routine roadblock stop in robbery investigation without articulable supporting facts held invalid].)

Indeed, California cases which have spoken to the issue of general or routine vehicle searches have done so in unmistakably critical language.  (See People v. Gale, supra, 46 Cal.2d at p. 256, 294 P.2d 13;  People v. Glover, supra, 93 Cal.App.3d at pp. 382–383, 155 Cal.Rptr. 592;  Wirin v. Horrall (1948) 85 Cal.App.2d 497, 501, 193 P.2d 470.)   As one leading commentator succinctly forewarns:  “To say that roadblock is constitutionally permissible under the circumstances described [ante ] is not to suggest ‘that a general roadblock may be established on the chance of finding someone who has committed a serious crime.’   This quite clearly is not the case.   It is not permissible for the police to celebrate Burglary Prevention Week by setting up random road blocks to search cars for burglary tools, to blockade a high-crime area of the city and search all cars leaving that area, or to establish roadblocks ‘to curb the juvenile problem.’   Such tactics as these pose ‘the most serious threat to the interest in privacy.’ ”  (3 LaFave, Search and Seizure, op. cit. supra, at p. 145, fns. omitted)

In conclusion, I would uphold the challenged order based solely upon settled principles governing specific traffic stops and arrests and avoid the temptation to engage in an unnecessary and unwise judicial exercise implicating sensitive fundamental issues.

FOOTNOTES

1.   There is no disagreement between the parties concerning this factual recital.

2.   In view of People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149, it is unnecessary to discuss the People's companion Proposition 8 argument challenging defendant's “standing” under Kaplan v. Superior Court (1971) 6 Cal.3d 150, 98 Cal.Rptr. 649, 491 P.2d 1, app. dism. 407 U.S. 917, 92 S.Ct. 2452, 32 L.Ed.2d 803.

ELKINGTON, Associate Justice.

HOLMDAHL, J., concurs.

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