Opinion
Rehearing Granted June 21, 1962.
For Opinion on Rehearing see 22 Cal.Rptr. 835.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty. (Los Angeles), Harry Wood and Harry B. Sondheim, Deputy Dist. Attys., for plaintiff and appellant.
No appearance for defendant and respondent.
BURKE, Presiding Justice.
The People appeal from an order of the superior court of August 16, 1961, granting defendant's motion, under section 995 of the Penal Code, to set aside an information charging defendant with one court of violating section 11530 of the Health and Safety Code, to wit, possession of marijuana, a narcotic.
On November 17, 1961, the People filed an opening brief and on March 29, 1962, defendant was given notice as specified in rule 17(b), Rules on Appeal. Defendant has not filed a brief or a request for hearing as provided in the rules.
At approximately 11:50 p. m. on June 18, 1961, police officer Lamoreaux was in a police vehicle with his partner. He recognized The police car proceeded to turn behind the other vehicle and stopped it. At the preliminary hearing the officer stated that prior to stopping the vehicle he 'observed there were three ladies in the back seat and you could see some arms and movement in the back seat that didn't seem to appear normal.' By 'normal' he explained he meant 'it was not usual.' After stopping the vehicle the officers had Twitty get out and made a cursory search of him for a weapon. In the assault with a deadly weapon charge the weapon used was a large pocket knife. The officers were unable to find the knife either on Twitty or in the vehicle. The officer then asked the three ladies to step out of the car and asked them 'if they would mind opening their purses.' He also asked them for identification. He did not recall at what point he found out which of the three ladies was Gladys Donaldson. His purpose in asking them to open their purses was to see if any one of them contained a large switchblade knife.
The officer said defendant 'just opened her purse and then stated, 'There is nothing in here,' or something, and moved her hand back and forth, and moved the articles around in the purse.' He did not see any knife in the purse, but on the bottom he saw 'a red capsule which had some silver foil wrapped around it.'
The officer removed the object from the purse, noted that it resembled a 'red devil' (seconal) and asked her where she had obtained it. She stated that she had had a prescription for the pills and was taking then to help her lose weight. The officer asked if she had the prescription with her and she stated that she did not. At that point he placed her under arrest. He then checked further into her coin purse and found a round white pill that to him appeared to be a Benzedrine tablet. She stated she did not remember where she got it but did recall asking someone for an aspirin, and she believed that it was at that time they gave the pill to her. Defendant was then taken to the police station and thoroughly searched by a policewoman who found three brown-wrapped cigarettes, later determined to be marijuana, in her brassiere.
No prosecution resulted with respect to Twitty or Miss Donaldson. The officer stated that the complaining party had dropped the charges. Neither was any prosecution filed with respect to the capsule or the white pill found in defendant's purse. Defendant was prosecuted for possession of the marijuana which was discovered subsequent to her arrest.
The principal question involved on this appeal is whether the police had probable cause to believe that defendant had committed a misdemeanor in their presence, namely, possession of seconal in violation of Business and Professions Code section 4230, prior to the search and arrest. It has been established that a search is not unlawful merely because it precedes rather than follows the arrest. (People v. Simon, 45 Cal.2d 645, 649, 290 P.2d 531.) In this case, as in People v. Simon, supra, there was no evidence of anything apparent to the officer's senses before the search and arrest that defendant was committing or attempting to commit an offense in his presence. The testimony of the police officer as to what he observed in the back seat of the automobile merely stated a conclusion with nothing factual from which the court could determine that his actions were reasonable. We hold that the actions of defendant in no way justified the police to search person or property at the time of the arrest.
The California Supreme Court in People v. Brown, 45 Cal.2d 640, 643-644, 290 P.2d 528, 530, said: '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. [Citations.] Similarly, in this case the fact that the search of defendant's person ultimately disclosed that she possessed a narcotic, such fact cannot justify a search or arrest which is without legal foundation. The exclusionary rule of People v. Cahan, 44 Cal.2d 434, 439, 282 P.2d 905, 50 A.L.R.2d 513, must be brought into operation at this point to protect not solely the rights of defendant before this court but primarily the constitutional rights of all persons to be secure in their homes, persons and effects.
It is the contention of the People that the magistrate could have concluded that defendant voluntarily disclosed to the police officer that she was in possession of seconal. The testimony of the officer was that defendant 'gladly opened her purse.' However, when a police officer stops an automobile, arrests the driver, orders the other occupants out of the car, and then asks them to open their purses, such a chain of circumstances hardly comports with what one conceives to be voluntary consent. As stated in People v. Gorg, 45 Cal.2d 776, 782, 291 P.2d 469, 472, "Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.' * * * When the People seek to justify a search on the ground that consent thereto was given, they have the burden of proving consent. [Citations.]' In this case the apparent consent was given in compliance with an order from one in authority.
The illegality of the arrest is even more clearly shown by the action of the police officer after having observed that there was no concealed weapon in the purse, reaching into the purse, removing the object which he stated was wrapped in tinfoil, unwrapping it and finding a pill which to him resembled a 'red devil.' This certainly amounted to an exploratory search which was in no way connected with the evidence sought and as such falls within the conduct specifically prohibited by People v. Brown, supra, 45 Cal.2d 640, 643-644, 290 P.2d 528. We hold the arrest to have been unlawful, based upon an illegal search and evidence wrongfully seized. (People v. Brown, supra.)
The order granting the motion to dismiss the information under Penal Code section 995 is affirmed.
JEFFERSON and BALTHIS, JJ., concur.