People v. Machel
People v. Machel
Opinion of the Court
The court sitting without a jury found defendant guilty of possession of marijuana. (Health & Saf.
On March 7, 1963, at about 8 :30 p.m., San Francisco Police Inspector Robert Martin, a member of the narcotics detail, accompanied by Inspector Lawler of that detail and Federal Agent Niblo went to apartment 101 at 1190 Pine Street, San Francisco, on a narcotics investigation. There Martin arrested Lewis Molin and Nadine Sweem, the occupants of the apartment, for possession of a marijuana cigarette. Nadine Sweem told Inspector Martin that they had obtained the cigarette from “a person by the name of Pete” who had left it there the night before. She said that Pete was expected to return that night at about 9 p.m. although she did not indicate the purpose of his visit.
After further discussing this person with Nadine Sweem, Martin reached the conclusion that he was defendant Peter Machel concerning whom he had certain information. Martin knew Machel to be an associate of a woman named Max Phelps whom Martin and Lawler had arrested for possession of marijuana in January 1963. On that occasion Martin with the permission of Max Phelps had monitored an incoming telephone call from a person identified by her as defendant. While the caller made no mention of narcotics, the gist of the conversation and the “jargon” employed made Martin suspicious that he might be involved in the narcotics traffic. Max Phelps had said only that defendant was a friend of hers and mentioned nothing about defendant’s activity in narcotics. Prior to this occasion, the inspector had had no contact with Max Phelps. However he later checked the police records and found that defendant had been arrested in the past and that he had a narcotics record. He also saw defendant’s photograph in his “rap sheet.” Martin stated that the foregoing was the only information he had concerning defendant when on March 7, 1963, he went to the apartment house on Pine Street.
After arresting the occupants, the three officers remained in the apartment. At 9:20 p.m. the door bell rang and someone pressed the return buzzer. Martin and Niblo stationed them
The inspector greeted Russo and identified himself to defendant, who became very pale and started backing up toward the general direction of the main door of the apartment house. After defendant had taken several backward steps, Martin “then walked up to him and placed my arm on him and stopped his backward progress.” Martin and Niblo then “escorted Russo and Machel back into the apartment.” Up to this point defendant had said nothing.
Defendant was taken into the bedroom where Martin “patted him down” for weapons. As the inspector ran his hands over defendant’s left front trouser pocket, he “felt an article or articles in his pocket which, from my past experience, made me suspicious that they were perhaps marijuana cigarettes. . . . Usually, if several cigarettes are carried, they are as a rule bound by a rubberband or some type of article like that to keep them from bouncing around in the pocket and perhaps become damaged, also to facilitate a quick disposal of them.” Martin thereupon asked defendant what he had in the pocket whereupon defendant “began to sweat very profusely and he remained very pale. ’ ’ He repeated the question three or four times but defendant refused to talk. Martin then put his hand in the pocket and removed the object he had felt, which appeared to be three marijuana cigarettes bound with a rubberband. Martin did not feel any weapons on defendant when he conducted the pat search. He could not recall at the trial whether or not defendant was handcuffed at this time. The inspector then interrogated defendant as to where he obtained the cigarettes, a matter which we discuss in detail infra. At the trial the cigarettes were introduced in evidence over defendant’s objections that they were the product of an unlawful search and seizure.
Inspector Martin testified under cross-examination that his original purpose in going to the Pine Street apartment on a narcotics investigation did not contemplate an investigation of defendant. He also stated that if defendant had wanted to leave the apartment house premises when Martin first saw
Defendant called Federal Narcotics Agent Niblo as his own witness. Niblo testified that when the apartment door was first opened defendant was apparently “a little shocked by our presence there” and took one step backward whereupon “I think, I put my arm ... on his right arm because I was under the impression he was about to flee. ...” According to Niblo, defendant was not handcuffed outside the door but only after Martin had removed the cigarettes from his pocket inside the apartment.
Lewis Molin, one of the occupants of the apartment, also called as a witness for defendant, testified that when defendant first appeared at the apartment, Martin and Niblo showed him their badge and Niblo, going behind defendant, held the latter’s arms in an armlock while Martin handcuffed him and brought him into the apartment.
Defendant, testifying in his own behalf, stated that he had gone to the apartment to return Molin’s ear which he had borrowed. His description of the arrest coincided with that of Molin. Defendant admitted knowing Max Phelps, mentioned by Inspector Martin in connection with the January episode, admitted telephoning her at about that time and further admitted on cross-examination that at the time of the arrest he had the three marijuana cigarettes on his person.
Defendant contends on appeal (1) that the search of his person not being incidental to a lawful arrest upon probable cause was illegal and that the evidence illegally seized in the course thereof should have been excluded by the trial court; and (2) that the admission in evidence of incriminating statements made by him was reversible error under the rule announced in People v. Dorado (1965) 62 Cal.2d 338 [42 Cal. Rptr. 169, 398 P.2d 361], It is the position of the Attorney General that the circumstances initially confronting the officers, though possibly short of probable cause for defendant’s arrest, nevertheless warranted his temporary detention for questioning which thereupon revealed probable cause for an arrest and search. The Attorney General asserts that the rule of temporary detention for questioning as reaffirmed in People v. Mickelson (1963) 59 Cal.2d 448 [30 Cal.Rptr. 18, 380 P.2d 658] is here applicable. Defendant disputes this on the grounds that the detention in the instant ease did not occur outdoors.
However the above rule by its terms and in its application has been confined to persons outdoors as appears from the facts of Mickelson and the supporting authorities therein referred to
Nevertheless reasonable investigatory techniques may be pursued by the police indoors as well as outdoors. “ [I]t is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes.” (People v. Michael (1955) 45 Cal.2d 751, 754 [290 P.2d 852]; People v. Martin (1955) 45 Cal.2d 755, 761 [290 P.2d 855] ; People v. Burke (1962) 208 Cal. App.2d 149, 161 [24 Cal.Rptr. 912].) Generally speaking a
In the instant case, the officers had just arrested the two occupants of the apartment for possession of a marijuana cigarette. Inspector Martin was informed by one of them that the cigarette had been left there by a person who Martin
After stopping defendant in the hallway and detaining him in the apartment (to which he was going anyhow) the officers were justified in making a superficial (“pat”) search for concealed weapons. (People v. Michelson, supra, 59 Cal.2d 448, 450-451; People v. Gibson (1963) 220 Cal.App.2d 15, 21 [33 Cal.Rptr. 775].) We believe that after the investigation and “pat” search the officers had probable cause to arrest defendant and make a reasonable incidental search of his person. (People v. Michelson, supra, 59 Cal.2d 448, 450-451; People v. Lopez, supra, 60 Cal.2d 223, 241.)
The subsequent developments however are highly significant. In the course of the “pat” search, the inspector felt articles in defendant’s pocket which from, his past experience made him suspicious that they were perhaps marijuana cigarettes. As set forth previously, Martin explained his past knowledge as to how marijuana cigarettes are carried. The inspector then asked defendant what was in his pocket whereupon the latter “began to sweat very profusely and he remained very pale.” We are satisfied that these developments taken together with the other information previously acquired by Martin gave him reasonable cause to believe that defendant had marijuana cigarettes in his pocket and was then committing a felony.
In Perez the court affirmed the dismissal of an indictment because the police had no reasonable cause to believe that defendant (who was arrested for a violation of Health and Safety Code section 11556) had visited a place where narcotics were being unlawfully smoked or used, knowing that such was actually occurring. The evidence showed that defendant could not have possibly known about such activity because it was not going on when he entered the place involved.
We next turn to defendant’s contention that the admission in evidence of incriminating statements made by
The pertinent facts are as follows: Inspector Martin testified that after he removed the marijuana cigarettes from defendant’s pocket, he showed them to defendant and asked him where he had obtained them. According to Martin “He [Machel] then continued to perspire and remained very pale complected, and he said, 'Can’t you give me a breakf’ He said, ‘My wife is away; she has been in Texas visiting friends or relations and she’s expected back very shortly,’ and that him becoming involved in something like this might complicate his family matters.”
The inspector then had a subsequent conversation with defendant in the apartment. “I asked him where he got the joints or the cigarettes and he stated that he had got them a short time before, a few days before, from a male by the name of Rudy around the Mission district, and that he had gotten eight from him and that these were the remaining three that I had taken out of his pocket. He subsequently changed his story and said that he had gotten them from a woman by the name of Sylvia, who lived up on Bush street. ’ ’
Following the decision of the Supreme Court of the United States in Escobedo v. Illinois (1964) 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], the Supreme Court of California held in People v. Dorado, supra, 62 Cal.2d 338, 353-354, “that defendant's confession could not properly be introduced into evidence because (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights. ’ ’
The record clearly establishes that when defendant made the above statements, Martin’s questioning was no longer investigatory but had focused on defendant as a particular suspect. It is simply beyond argument that after the inspector removed the cigarettes from defendant’s pocket there was no doubt in his mind that defendant was guilty. It was at this time that defendant was handcuffed, arrested and thus placed in custody. The interrogation productive of the foregoing statements thereupon followed. Defendant’s arrest therefore satisfied the first two conditions of the Dorado rule.
Has the third condition of the Dorado rule been satisfied? Were the above statements made while the officers were carrying on a process of interrogations that lent itself to eliciting incriminating statements? We recognize that defendant’s arrest does not of itself compel a conclusion that the third condition of the rule has been met. As was said in People v. Stewart, supra, 62 Cal.2d 571, 578 “Although in most cases the process of interrogations following an arrest will so lend itself [to eliciting incriminating statements], it does not necessarily do so.” In order to determine whether this condition of the rule has been met, it is necessary to “analyze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.” (P. 579.)
While the pertinent part of the record is meager, our analysis of it convinces us that although Martin then knew defendant possessed contraband, he was attempting to extract from him information concerning his involvement with it. The entire incident bespeaks a persistence of inquiry on Martin’s part. It will be recalled that in the course of the pat search, the inspector repeatedly asked defendant what he had in his pocket. After removing the marijuana cigarettes, “I then showed them to Machel and asked him where he got them.” The witness recounted defendant’s reaction to the question, his plea for a “break” and his fears as to family complications arising from his involvement “in something like this.” The officer pressed the inquiry in a subsequent conversation in the apartment although the record does not disclose the interval of time between the two. A fair reading of the record induces the conclusion that there was some continuity to the second conversation because defendant gave one answer and 11 subsequently changed his story. ’ ’ While the questioning sought the source of the contraband, it is clear that it lent itself to establishing defendant’s awareness of what he had had in his pocket and his full knowledge of
Finally the record fails to show that defendant was advised of his right to counsel or of his absolute right to remain silent or that defendant waived these rights. Since the decision in People v. Stewart, supra, 62 Cal.2d 571 it is clear that under these circumstances the fourth condition of the Dorado rule is satisfied. As the court there said: “We therefore cannot presume in the face of a silent record that the police informed defendant of his right to remain silent and of his right to counsel.” (62 Cal.2d at p. 581.)
We therefore conclude that at least with respect to the defendant’s statements in the second conversation, all of the conditions of the Dorado rule have been met and that the admission in evidence of such statements was error. The statements admitted were clearly incriminating in character. Defendant in answering the inspector’s inquiries in the subsequent conversation as to where he got the cigarettes in each instance admitted not only that he had marijuana in his possession but also that he had been in possession of these and other marijuana cigarettes for some time prior to the time of his arrest. These statements given in response to inquiries using the term “joints” from the addict’s argot supported the conclusion not only that defendant knowingly had possession of the cigarettes but that he had knowledge of their narcotic character. These were essential elements of the offense with which he was subsequently charged. (People v. Groom (1964) 60 Cal.2d 694, 696 [36 Cal.Rptr. 327, 388 P.2d 359] ; People v. Redrick (1961) 55 Cal.2d 282, 285 [10 Cal.Rptr. 823, 359 P.2d 255] ; People v. Winston, supra, 46 Cal.2d 151, 158; People v. Gorg (1955) 45 Cal.2d 776, 780 [291 P.2d 469].)
In our view the second series of statements constituted a complete acknowledgment of guilt of the crime charged (People v. Ferdinand (1924) 194 Cal. 555, 568-569 [229 P. 341] ; People v. Ford (1962) 200 Cal.App.2d 905, 920 [19 Cal.Rptr. 758]; Witkin, Cal. Evidence, p. 275; McCormick on Evidence,
The judgment is reversed.
Molinari, J., and Sims, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied -June 23, 1965. McComb, J., and Mosk, J., were of the opinion that the petition should be granted.
A second count of the information charging defendant with transportation of marijuana (Health & Saf. Code, § 11531) was dismissed by the court prior to trial upon the motion of the district attorney. After appropriate proceedings conducted upon defendant’s conviction, the court found defendant not to be a narcotic addict within the meaning of Penal Code section 6451 and thereupon sentenced him to prison for the term prescribed by law.
People v. Mickelson, supra, 59 Cal.2d 448 (motorist at night); People v. Blodgett (1956) 46 Cal.2d 114 [293 P.2d 57] (occupants of taxicab at night); People v. Martin (1956) 46 Cal.2d 106 [293 P.2d 52] (occupants of parked ear at night) ; People v. Simon (1955) 45 Cal.2d 645 [290 P.2d 531] (pedestrians outdoors at night) ; People v. Beverly (1962) 200 Cal.App.2d 119 [19 Cal.Rptr. 67] (motorists at night) ; People v. Anushevitz (1960) 183 Cal.App.2d 752 [6 Cal.Rptr. 785] (motorist—time of day not indicated); People v. King (1959) 175 Cal.App.2d 386 [346 P.2d 235] (motorist at 1 p.m.).
People v. Mosco (1963) 214 Cal.App.2d 581 [29 Cal.Rptr. 644] (occupant of illegally parked car at night) ; People v. Alcala (1962)
See footnote on following page.
People v. One 1960 Cadillac Coupe, supra, 62 Cal.2d 92 (motorist in daytime); People v. Lopez, supra, 60 Cal.2d 223 (motorists in early hours of morning); People v. Currier (1965) 232 Cal.App.2d 103 [42 Cal.Rptr. 562] (pedestrian on streets at night) ; People v. Martinez (1964) 228 Cal.App.2d 739 [39 Cal.Rptr. 839] (motorist at 4 p.m.) ; People v. Martines (1964) 228 Cal.App.2d 245 [39 Cal.Rptr. 526] (pedestrian on streets at night); People v. McGlory (1964) 226 Cal.App.2d 762 [38 Cal.Rptr. 373] (occupants of parked ear in early morning) ; People v. Randal (1964) 226 Cal.App.2d 105 [37 Cal.Rptr. 809] (motorist at night) ; People v. Ruhman (1964) 224 Cal.App.2d 284 [36 Cal.Rptr. 493] (motorist at night) ; People v. Cowman, supra, 223 Cal.App.2d 109 (motorist at night) ; People v. Lovio (1963) 222 Cal.App.2d 79 [34 Cal.Rptr. 747] (occupant of parked ear at night) ; People v. Davis (1963) 222 Cal.App.2d 75 [34 Cal.Rptr. 796] (motorist at night) ; People v. Koelzer (1963) 222 Cal.App.2d 20 [34 Cal.Rptr. 718] (pedestrian outdoors at night) ; People v. Hilliard (1963) 221 Cal.App.2d 719 [34 Cal.Rptr. 809] (pedestrian outdoors at night) ; Hood v. Superior Court, supra, 220 Cal.App.2d 242 (motorist at night) ; People v. Williams (1963) 220 Cal.App.2d 108 [33 Cal.Rptr. 765] (pedestrian outdoors at night) ; People v. Gibson (1963) 220 Cal.App.2d 15 [33 Cal.Rptr. 775] (motorist at night); People v. Pearsall (1963) 216 Cal.App.2d 196 [30 Cal.Rptr. 777] (occupant asleep in parked car at night).
In Ker, supra, after stating that in cases involving federal constitutional rights state court findings are by no means insulated against examination by the Supreme Court for the purpose of determining whether federal criteria as to reasonableness have been respected, the court said: “The States are not thereby precluded from developing workable rules governing arrests, searches and seizures to meet ‘the practical demands of effective criminal investigation and law enforcement’ in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures . . .’’ (374 U.S. at p. 34.)
The instant case is therefore another example of reliance by an arresting officer on information supplied by an untested and presumably
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