People v. Brown, 290 P.2d 528 (Cal. 1955). · Go Syfert
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People v. Brown, 290 P.2d 528 (Cal. 1955). Cases Citing This Book View Copy Cite
350 citation events (1 in the last 25 years) across 17 distinct courts.
Strongest positive: People v. Benjamin (calctapp, 1999-11-30)
Treatment trajectory · 1955 → 2026 · click a year to view as-of
1955 1990 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Benjamin
Cal. Ct. App. · 1999 · confidence medium
Further, “[w]here reliable independent evidence indicates that an event did occur, an ex post assessment that the event is ‘unlikely’ ... is almost without probative weight.” (U.S. v. Mueller (5th Cir. 1990) 902 F.2d 336, 343 [court rejected an expert’s opinion that an odor of methamphetamine was “unlikely” to have been detected].) Accordingly, while probable cause for a search cannot be supported by the results of the search (People v. Brown (1955) 45 Cal.2d 640, 643 [ 290 P.2d 528 ]), there is no reason why the results of the search cannot support the truthfulness of the statem…
discussed Cited as authority (rule) State v. Bergeron (2×)
N.D. · 1982 · confidence medium
Restatement (Second) of Torts § 119, comment m (1965); State v. Govan, 123 N.W.2d 110, 115 (N.D.1963); People v. Brown, 45 Cal.2d 640, 642 , 290 P.2d 528, 529 (1955); Gray v. Earls, 298 Mo. 116 , 250 S.W. 567, 572 (1923).
discussed Cited as authority (rule) Cleaver v. Superior Court (2×)
Cal. · 1979 · confidence medium
(Ante, p. 306.) I had thought it long settled that a search “cannot be justified by what it turns up.” (People v. Brown (1955) 45 Cal.2d 640, 643-644 [ 290 P.2d 528 ], and cases cited.) Any such judicial notice would also be invalid for failure to afford the parties “reasonable opportunity” to rebut it, as required by law.
discussed Cited as authority (rule) People v. Richard C.
Cal. Ct. App. · 1979 · confidence medium
Since “presence” entitling an officer to make a misdemeanor arrest is not merely physical proximity, but occurs only when the offense is apparent to the officer’s senses (People v. Brown (1955) 45 Cal.2d 640, 642 [ 290 P.2d 528 ]; Pate v. Municipal Court (1970) 11 Cal.App.3d 721, 725 [ 89 Cal.Rptr. 893 ]), Richard C. insists that both the weapons search and the ensuing arrest of respondent must be held unlawful.
cited Cited as authority (rule) People v. Alonzo C.
Cal. Ct. App. · 1978 · confidence medium
The test is whether the misdemeanor “is apparent to the officer’s senses.” (People v. Brown (1955) 45 Cal.2d 640, 642 [ 290 P.2d 528 ].) Any and all of the senses are included.
discussed Cited as authority (rule) In Re Michael
Cal. · 1974 · confidence medium
Motor Vehicles (1969) 70 Cal.2d 235, 237 [ 74 Cal. Rptr. 259 , 449 P.2d 195 ]; see also People v. *689 Privett (1961) 55 Cal.2d 698, 701 [ 12 Cal. Rptr. 874 , 361 P.2d 602 ]; People v. Simon (1955) 45 Cal.2d 645, 648 [ 290 P.2d 531 ].) An offense is committed in the "presence" of the officer if it is apparent to him through the use of any of his senses ( People v. Brown (1955) 45 Cal.2d 640, 642 [ 290 P.2d 528 ]; Sarafini v. City & County of San Francisco (1956) 143 Cal. App.2d 570, 577 [ 300 P.2d 44 ]).
discussed Cited as authority (rule) Callahan v. Michael V.
Cal. · 1974 · confidence medium
Motor Vehicles (1969) 70 Cal.2d 235, 237 [ 74 Cal.Rptr. 259 , 449 P.2d 195 ]; see also People v. Privett (1961) 55 Cal.2d 698, 701 [ 12 Cal.Rptr. 874 , 361 P.2d 602 ]; People v. Simon (1955) 45 Cal.2d 645, 648 [ 290 P.2d 531 ].) An offense, is committed in the “presence” of the officer if it is apparent to him through the use of any of his senses (People v. Brown (1955) 45 Cal.2d 640, 642 [ 290 P.2d 528 ]; Sarafini v. City & County of San Francisco (1956) 143 Cal.App.2d 570, 577 [ 300 P.2d 44 ]).
discussed Cited as authority (rule) People v. Koehn
Cal. Ct. App. · 1972 · confidence medium
A search, therefore, ‘may be unreasonable and hence unlawful although incident to a lawful arrest’ (People v. Brown (1955) 45 Cal.2d 640, 643 [ 290 P.2d 528 ], and cases cited.) ‘What is the test of reason which makes a. search reasonable?
examined Cited as authority (rule) People v. Baird (3×)
Cal. Ct. App. · 1971 · confidence medium
(Dyke v. Taylor Implement Co. (1968) 391 U.S. 216, 221-222 [ 20 L.Ed.2d 538, 543-544 , 88 S.Ct. 1472 ].) The majority decision validates this search, in part, upon a suspect’s having purportedly engaged in “monkey business.” (The term imports nothing to me; I doubt, contrary to the majority’s interpretation of the term as communicated to Officer Shaffer, that it reasonably imported anything more significant to him.) The thrust of this conclusion, in my opinion, is to sanction an exploratory search “prompted by a general curiosity to ascertain what, if anything, was within the defenda…
discussed Cited as authority (rule) People v. Green
Cal. Ct. App. · 1971 · confidence medium
Code, § 836, subd. 1; People v. Brown (1955) 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) 6 They contend nevertheless that section 12031 authorizes them to search without probable *772 cause to arrest. 7 This contention of statutory justification cannot be upheld short of the circumstances set forth in DeLong .
discussed Cited as authority (rule) People v. Superior Court (2×)
Cal. · 1970 · confidence medium
A search, therefore, "may be unreasonable and hence unlawful although incident to a lawful arrest." ( People v. Brown (1955) 45 Cal.2d 640, 643 [ 290 P.2d 528 ], and cases cited.) "What is the test of reason which makes a search reasonable?
discussed Cited as authority (rule) People v. Hana
Cal. Ct. App. · 1970 · confidence medium
Even if we had concluded that the “frisk” was justified, the second part of the bifurcated Terry test comes into play, “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” This language was given articulation in Terry, supra, at pages 25 and 26 [20 L.Ed.2d at p. 908], as follows: “A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. [Citation.] Thus it must be limited to that which is necessary fo…
discussed Cited as authority (rule) People v. Edwards (2×)
Cal. · 1969 · confidence medium
We have applied the rule that reasonableness must be determined in the light of Fourth Amendment principles as early as People v. Brown, 45 Cal.2d 640, 644 [ 290 P.2d 528 ], and People v. Simon, 45 Cal.2d 645, 648 [ 290 P.2d 531 ].
discussed Cited as authority (rule) People v. Marchese
Cal. Ct. App. · 1969 · confidence medium
Of course, the conduct of Officer Seannell in looking in the trunk and bag cannot be constitutionally justified by the fact that it uncovered the contraband (People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ]); neither is it necessarily constitutionally vulnerable because it turned up evidence of a crime different than the one for which defendant was arrested.
discussed Cited as authority (rule) People v. Marchese
Cal. Ct. App. · 1969 · confidence medium
At this point the officer discontinued the inventory. *1011 Of course, the conduct of Officer Scannell in looking in the trunk and bag cannot be constitutionally justified by the fact that it uncovered the contraband (People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ]); neither is it necessarily constitutionally vulnerable because it turned up evidence of a crime different than the one for which defendant was arrested.
cited Cited as authority (rule) People v. Adkins
Cal. Ct. App. · 1969 · confidence medium
(Cf. People v. Brown, 45 Cal.2d 640, 644 [ 290 P.2d 528 ].)
discussed Cited as authority (rule) People v. Ramsey
Cal. Ct. App. · 1969 · confidence medium
(See People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) Notwithstanding the foregoing conclusion that Unit 12-A was a constitutionally protected place, the People argue *311 that since the apparent emergency of the fire justified the entry of the firemen into Unit 12-A, Officer Nelson was likewise justified in entering even though he arrived after they had departed.
discussed Cited as authority (rule) Virgil v. Superior Court (2×)
Cal. Ct. App. · 1968 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) On the other hand it is not necessarily constitutionally vulnerable because it turned up evidence of a crime different from the one which occasioned the search.
discussed Cited as authority (rule) People v. Ross
Cal. Ct. App. · 1968 · confidence medium
While we cannot argue Witt’s reliability on the basis that later events confirmed his belief (People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ]), certainly we are entitled to conclude that he was a discerning witness when he observed several persons successively inhaling from an unusual type of pipe,— a small brass-metal item commonly used only by inhalers of marijuana, opium and other drugs.
cited Cited as authority (rule) People v. Britton
Cal. Ct. App. · 1968 · confidence medium
(People v. Brown, 45 Cal.2d 640,643 [ 290 P.2d 528 ].) The scope of the search made by the officers can best be related through their own testimony.
discussed Cited as authority (rule) People v. Chrisman
Cal. Ct. App. · 1967 · confidence medium
(People v. Brown (1955) 45 Cal.2d 640, 643 [ 290 P. 2d 528 ].) The applicable rules were recently set forth in People v. Talley (1967) 65 Cal.2d 830 [ 56 Cal.Rptr. 492 , 423 P.2d 564 ], as follows: “A peace officer may arrest a person without a warrant ‘ [w] henever he has reasonable cause to believe that the person to be arrested has committed a felony, . . .’ (Pen.
discussed Cited as authority (rule) People v. Chrisman
Cal. Ct. App. · 1967 · confidence medium
This conduct included the means of gaining entry to the house, the departure of a Negro couple in the defendant's car, and on the occasion of the arrest, the subsequent departure of the defendant. [8] The arrest and search cannot be justified by what it turned up. ( People v. Brown (1955) 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) The applicable rules were recently set forth in People v. Talley (1967) 65 Cal.2d 830 [ 56 Cal. Rptr. 492 , 423 P.2d 564 ], as follows: "A peace officer may arrest a person without a warrant `[w]henever he has reasonable cause to believe that the person to be arrested has…
discussed Cited as authority (rule) People v. Egan
Cal. Ct. App. · 1967 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ] ; United States v. Rabinowitz, 339 U.S. 56, 60 [ 94 L.Ed. 653, 657 , 70 S.Ct. 430 ].) There was a likely homicide involved .in the overdose of Carol.
discussed Cited as authority (rule) People v. Gil
Cal. Ct. App. · 1967 · confidence medium
(People v. Nebbitt, 183 Cal.App.2d 452, 459, 461 [ 7 Cal.Rptr. 8 ], hear, denied.) Of course, the search under attack cannot be constitutionally justified by the fact that it did uncover marijuana. (.People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) On the other hand it is not necessarily constitutionally vulnerable because it turned up evidence of a crime different from the one which occasioned the search.
discussed Cited as authority (rule) Beauregard v. Wingard
Cal. Ct. App. · 1965 · confidence medium
He cites a number of cases but relies chiefly upon People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ], In Brown , however, the court was specifically concerned with the admissibility of evidence secured by a search pursuant to an unlawful arrest.
discussed Cited as authority (rule) People v. Govea
Cal. Ct. App. · 1965 · confidence medium
(People v. Brown (1955) 45 Cal.2d 640, 643 [ 290 P.2d 528 ] and cases there collected; People v. Gale (1956) 46 Cal.2d 253, 257-258 [ 294 P.2d 13 ] ; People v. Haven (1963) 59 Cal.2d 713, 719 [ 31 Cal.Rptr. 47 , 381 P.2d 927 ] ; People v. Mickelson, supra, 59 Cal.2d 448 , 454 ; Tompkins v. Superior Court (1963) 59 Cal.2d 65, 68 [ 27 Cal.Rptr. 889 , 378 P.2d 113 ].) All of the evidence introduced against defendants Corona and Macias was the product of the initial illegal arrest and search.
discussed Cited as authority (rule) People v. Brooks
Cal. Ct. App. · 1965 · confidence medium
(See People v. Gale, supra, 46 Cal.2d at p. 258; People v. Simon (1955) 45 Cal.2d 645, 648 [ 290 P.2d 531 ]; People v. Brown (1955) 45 Cal.2d 640, 643 [ 290 P.2d 528 ]; People v. Brown (1962) 205 Cal. App.2d 188, 192 [ 22 Cal. Rptr. 835 ]; People v. Pendarvis (1960) 178 Cal. App.2d 239, 240 [ 2 Cal. Rptr. 824 ].) The evidence here, however, does not show a general dragnet in which defendant was innocently enmeshed. [17] His history as known to the officers, and that of his companions, justified their making inquiry of defendant. ( People v. Mickelson, supra, 59 Cal.2d 448, 450-452 ; People v. …
discussed Cited as authority (rule) People v. Brooks
Cal. Ct. App. · 1965 · confidence medium
(See People v. Gale, supra, 46 Cal.2d at p. 258; People v. Simon (1955) 45 Cal.2d 645, 648 [ 290 P.2d 531 ] ; People v. Brown (1955) 45 Cal.2d 640, 643 [ 290 P.2d 528 ] ; People v. Brown (1962) 205 Cal.App.2d 188, 192 [ 22 Cal.Rptr. 835 ]; People v. Pendarvis (1960) 178 Cal.App.2d 239, 240 [ 2 Cal.Rptr. 824 ].) The evidence here, however, does not show a general dragnet in which defendant was innocently enmeshed.
discussed Cited as authority (rule) People v. Landry
Cal. Ct. App. · 1964 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643-645 [ 290 P.2d 528 ], and cases cited.) ” In the case before this court, however, defendant’s furtive actions in rushing back into the apartment, coupled with his derogatory remarks about the police, implied guilt of some sort to one of the police officers; the girl’s information that she had spent the evening in the apartment and the officer’s belief that she had secured narcotics there combined to provide substantial corroboration to justify the officer’s conclusion that defendant was rushing back into the apartment for the purpose of disposing …
examined Cited as authority (rule) People v. Verrette (4×)
Cal. Ct. App. · 1964 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643, 644 [ 290 P.2d 528 ].) Hence, the contraband which led to appellant's arrest, which was in the bedroom, is not to be considered as a basis for the search. (2) The circumstances apparent to the officers at the time they were required to act are to be considered.
discussed Cited as authority (rule) People v. Shelton (2×)
Cal. · 1964 · confidence medium
(People v. Haven, 59 Cal.2d 713, 718 [ 31 Cal.Rptr. 47 , 381 P.2d 927 ]; Tompkins v. Superior Court, 59 Cal.2d 65, 68 [ 27 Cal.Rptr. 889 , 378 P.2d 113]; People v. Brown, 45 Cal.2d 640, 643-645 [ 290 P.2d 528 ].) The right to seek interviews with suspects at their homes (People v. Martin, 45 Cal.2d 755, 761 [ 290 P.2d 855 ] ; People v. Michael, 45 Cal.2d 751, 754 [ 290 P.2d 852 ]) does not include the right to demand that a suspect open his door.
discussed Cited as authority (rule) People v. Shelton
Cal. · 1964 · confidence medium
(People v. Haven, 59 Cal.2d 713, 718 [ 31 Cal.Rptr. 47 , 381 P.2d 927 ]; Tompkins v. Superior Court, 59 Cal.2d 65, 68 [ 27 Cal.Rptr. 889 , 378 P.2d 113]; People v. Brown, 45 Cal.2d 640, 643-645 [ 290 P.2d 528 ].) The right to seek interviews with suspects at their homes (People v. Martin, 45 Cal.2d 755, 761 [ 290 P.2d 855 ] ; People v. Michael, 45 Cal.2d 751, 754 [ 290 P.2d 852 ]) does not include the right to demand that a suspect open his door.
discussed Cited as authority (rule) Dunn v. MUNICIPAL COURT FOR EUREKA JUDICIAL DISTRICT
Cal. Ct. App. · 1963 · confidence medium
(See Johnson v. United States, 333 U.S. 10, 16-17 [ 68 S.Ct. 367 , 92 L.Ed. 436, 441-442 ] ,• and People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) The judgment is reversed, with instructions to the trial court to issue a peremptory writ of mandate directing respondent municipal court to vacate and set aside its previous order denying the motion to quash the search warrant and to make its order quashing said search warrant.
discussed Cited as authority (rule) People v. Gibson
Cal. Ct. App. · 1963 · confidence medium
(See People v. Mickelson, supra, 59 Cal.2d 448, 454 ; People v. Brown (1955) 45 Cal.2d 640, 643-644 [ 290 P.2d 528 ].) A peace officer may make an arrest without a warrant “ [w]henever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.” (Pen.
discussed Cited as authority (rule) People v. Cedeno
Cal. Ct. App. · 1963 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643-645 [ 290 P.2d 528 ]; Tompkins v. Superior Court, supra, 59 Cal.2d 65, 68 ; People v. Haven, supra.) Moreover, the, search could not be justified as incidental to the *228 arrest because defendant was not arrested until the marijuana was found in his hotel room.
cited Cited as authority (rule) People v. Zabala
Cal. Ct. App. · 1963 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643, 644 [ 290 P.2d 528 ].) The marijuana debris secured from the defendant’s trousers and shirt and testimony concerning it should have been excluded.
discussed Cited as authority (rule) People v. Haven (2×)
Cal. · 1963 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643-645 [ 290 P.2d 528 ] ; Tompkins v. Superior Court, ante, pp. 65, 68 [ 27 Cal.Rptr. 889 , 378 P.2d 113 ].) Moreover, even if the officers had probable cause to arrest before discovering the marijuana, they were not entitled to delay making a formal arrest until they had taken defendant from the house to the hotel to justify a search of the hotel room as incidental to an arrest there.
discussed Cited as authority (rule) People v. Mickelson (2×)
Cal. · 1963 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643-644 [ 290 P.2d 528 ].) The order is affirmed.
discussed Cited as authority (rule) Tompkins v. Superior Court (2×)
Cal. · 1963 · confidence medium
Although hindsight indicates that petitioner's motive in closing the door was to conceal evidence of guilt, Inspector Martin had no reasonable cause so to believe until he kicked the door open. [4] It is settled, however, that a search cannot be justified by what it turns up. ( People v. Brown, 45 Cal.2d 640, 643-645 [ 290 P.2d 528 ], and cases cited.) The People contend, however, that Nieman's consent to the search of the apartment either constituted actual authority for Inspector Martin to enter and search or justified his believing in good faith that he had such authority, and that therefor…
discussed Cited as authority (rule) People v. Kendall
Cal. Ct. App. · 1963 · confidence medium
(Carroll v. United States, 267 U.S. 132, 149 [ 45 S.Ct. 280 , 69 L.Ed. 543 , 39 A.L.R. 790 ]; People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) Defendant objected to introduction of an item of evidence which was taken from the person of Mr. MeClinton when he was arrested.
discussed Cited as authority (rule) People v. Bruno
Cal. App. Dep’t Super. Ct. · 1962 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) Some of the suspicious circumstances produced here—the tapered trousers, the probable falsehood regarding “Mike,” the running man described by Mr. Little, defendant’s status as a parolee—were unknown to the officer when he accosted defendant.
discussed Cited as authority (rule) People v. Guthaus
Cal. Ct. App. · 1962 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) When a police officer has reasonable cause to enter a dwelling to make an arrest and reasonable cause to make a search incident to the arrest, his entry and his search are not unreasonable.
discussed Cited as authority (rule) People v. Bawden
Cal. Ct. App. · 1962 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) “ [T]he reasonableness of a search is not to be justified by what the search turns up ‘but by appearances to the searcher at the time of his action. ’ So long as the officer reasonably evaluates these appearances and acts accordingly the rights of the accused are adequately safeguarded. ’ ’ (People v. Sanson, 156 Cal.App.2d 250, 254 [ 319 P.2d 422 ].) The evidence, as we have stated before, shows that there was probable cause to believe defendant guilty of the *598 crimes as charged in the indictment.
discussed Cited as authority (rule) People v. Simons
Cal. Ct. App. · 1962 · confidence medium
Consequently, the determinative question on this appeal is whether, in the absence of a warrant or arrest, the search was a reasonable one (People v. Brown, 45 Cal.2d 640, 643-645 [ 290 P.2d 528 ], citing Carroll v. United States, 267 U.S. 132 [ 45 S.Ct. 280 , 69 L.Ed. 543 , 39 A.L.R. 790 ] ; People v. Blodgett, 46 Cal.2d 114 [ 293 P.2d 57 ]).
discussed Cited as authority (rule) People v. Brown
Cal. Ct. App. · 1962 · confidence medium
The California Supreme Court in People v. Brown, 45 Cal.2d 640, 643-644 [ 290 P.2d 528 ], said: “The United States Supreme Court has consistently held that a search, whether incident to an arrest or not, cannot be justified by what it turns up. [Citations.] If, therefore, it is necessary to rely on the search to justify the arrest, the conclusion is inescapable that a search that cannot be justified by what it turns up cannot justify the arrest.
cited Cited as authority (rule) People v. Luckman
Cal. Ct. App. · 1961 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) The reasonableness of a search is not to be justified by what the search turns up but by appearances to the searcher at the time of his action.
discussed Cited as authority (rule) People v. Rucker
Cal. Ct. App. · 1961 · confidence medium
The legality of the search depends on whether the arresting officers, before the search, had reasonable cause for believing that the appellant and his companion had committed a felony or any crime in their presence, without considering what the arrest and search thereafter turned up (People v. Brown, 45 Cal.2d 640, 642 [ 290 P.2d 528 ]).
discussed Cited as authority (rule) People v. Privett
Cal. · 1961 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) *703 The sanctity of a private home is not only guaranteed by the Constitutions of the United States and of our own state, but it is traditional in our Anglo-Saxon heritage.
discussed Cited as authority (rule) People v. Bly
Cal. Ct. App. · 1961 · confidence medium
But it does not follow that a search or seizure may be made only in connection with such an ai*rest.” The Supreme Court stated in People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ]: “It should be noted at the outset that the legality of an arrest is not necessarily determinative of the lawfulness of a search *356 incident thereto.
cited Cited as authority (rule) People v. Hammond
Cal. · 1960 · confidence medium
(People v. Brown, 45 Cal.2d 640, 643 [ 290 P.2d 528 ].) As in the instant case, the issue is raised most frequently where the search was conducted without a warrant.
Retrieving the full opinion text from the archive…
The PEOPLE, Appellant,
v.
IRMA BROWN, Respondent
Crim. 5765.
California Supreme Court.
Nov 29, 1955.
290 P.2d 528
Edmund G. Brown, Attorney General, William E. James, Deputy Attorney General, S. Ernest Roll, District Attorney (Los Angeles), Jere J. Sullivan, Lewis Watnick and Arthur L. Alarcon, Deputy District Attorneys, for Appellant., Charles H. Matthews for Respondent., A. L. Wirin and Fred Okrand as Amici Curiae on behalf of Respondent.
Traynor.
Cited by 169 opinions  |  Published
TRAYNOR, J.

— By information defendant was charged with one count of possessing heroin in violation of Health and Safety Code, section 11500, a felony. Her motion to set the information aside (see Pen. Code, § 995) was granted on the ground that all of the evidence of the crime other than admissions was obtained by an illegal search of her person in violation of her constitutional rights. The People appeal.

At about 7 :30 p. m. on January 28, 1955, two deputy sheriffs of Los Angeles County parked their ear at the corner of 47th Place and Avalon Boulevard. They observed defendant walk in front of their car from the southwest to the northwest corner of the intersection. She had some parcels in her right arm and a coin purse in her right hand, and her left hand was clenched in a fist. The officers left their ear, and after approaching defendant from behind, one officer grabbed defendant’s right wrist and the other her left wrist. They identified themselves and asked to see what she had in her left hand. She refused their request and asked them not to take her to jail but to allow her to talk to her husband. They did not inform her that she was under arrest, but one of the officers took a small rubber container from her left hand, and subsequent analysis indicated that it contained heroin. The officers took defendant to their car and talked with her. She told conflicting stories about getting the rubber container, but denied knowing that it contained heroin. After further conversation the officers took her to the county jail.

The attorney general contends that the search in this case was incidental to defendant’s arrest and that if the arrest was lawful, the search was reasonable within the meaning of[*642] the constitutional provisions. (U.S. Const., 4th and 14th Amend.; Cal. Const., art. I, § 19.)

Section 836 of the Penal Code provides: “A peace-officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person:

“1. For a public offense committed or attempted in his presence.

“2. "When a person arrested has committed a felony, although not in his. presence.

“3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.

“4. On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested.

“5. At night, when there is reasonable cause to believe that he has committed a felony.”

There was no evidence of anything apparent to the officers’ senses before the arrest and search that defendant was committing or attempting to commit a public offense. The arrest, therefore, cannot be justified on the ground that an offense was being committed or attempted in their presence (State v. Owens, 302 Mo. 348 [259 S.W. 100, 101, 32 A.L.R. 383] ; Snyder v. United States, 285 F. 1, 2; State v. Wills, 91 W.Va. 659 [114 S.E. 261, 264, 24 A.L.R. 1398]; Haynes v. State, 110 Tex.Crim. 553 [9 S.W.2d 1043]; State v. Jokosh, 181 Wis. 160 [193 N.W. 976, 977]; see Taylor v. United States, 286 U.S. 1, 5-6 [52 S.Ct. 466, 76 L.Ed. 951] ; Coverstone v. Davies, 38 Cal.2d 315, 320-321 [239 P.2d 876] ; People v. Craig, 152 Cal. 42, 46 [91 P. 997]; Rest., Torts, § 119, comment m), and the attorney general makes no contention to the contrary. Nor is there any evidence, nor is it contended, that the officers had “reasonable cause” to believe that defendant had committed a felony, that a charge based “upon a reasonable cause” had been made, or that the officers had a warrant for defendant’s arrest.

The attorney general contends, however, that since defendant was in fact guilty of a felony, the arrest was authorized by subdivision 2 of section 836 whether or not the officers had reasonable cause so to believe. He points out that subdivision 2 does not contain the reference to reasonable cause found in subdivisions 3, 4 and 5, that the legality of an arrest is governed by state law (Johnson v. United States, 333 U.S. 10, 15 [68 S.Ct. 367, 92 L.Ed. 436]; United States v. Di Re, 332 U.S. 581, 589 [68 S.Ct. 222, 92 L.Ed. 210]), and that[*643] a reasonable search without a warrant incident to a lawful arrest is not unlawful (Harris v. United States, 331 U.S. 145, 150-151 [67 S.Ct. 1098, 91 L.Ed. 1399] ; United States v. Babinowitz, 339 U.S. 56, 60-64 [70 S.Ct. 430, 94 L.Ed. 653]), and concludes that defendant’s guilt therefore justified the arrest and search. We cannot agree with this conclusion.

It should be noted at the outset that the legality of an arrest is not necessarily determinative of the lawfulness of a search incident thereto. Just as some searches may be reasonable and hence lawful in the absence of a warrant or an arrest (Carroll v. United States, 267 U.S. 132, 153 [45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790]), others may be unreasonable and hence unlawful although incident to a lawful arrest. (United States v. Lefkowitz, 285 U.S. 452, 463-467 [52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775]; Go-Bart Importing Co. v. United States, 282 U.S. 344, 356-358 [51 S.Ct. 153, 75 L.Ed. 374]; see Harris v. United States, supra, 331 U.S. 145,153.) Accordingly, the question presented is not whether the arrest of a guilty felon is lawful in the absence of reasonable cause for the officer to believe him guilty, but whether the search incident to the arrest is reasonable, and it is therefore unnecessary to determine whether a requirement of reasonable cause applies by implication to subdivision 2 of section 836. *

The United States Supreme Court has consistently held that a search, whether incident to an arrest or not, cannot be justified by what it turns up. (Johnson v. United States, supra, 333 U.S. 10, 16-17; United States v. Di Re, supra, 332 U.S. 581, 595; Lustig v. United States, 338 U.S. 74, 80 [69 S.Ct. 1372, 93 L.Ed. 1819] ; Byars v. United States, 273 U.S. 28, 29 [47 S.Ct. 248, 71 L.Ed. 520] ; see also Hernandez v. United States, 17 F.2d 373; Snyder v. United States, supra, 285 F. 1, 3; Poldo v. United States, 55 F.2d 866, 869; Allen v. State, 183 Wis. 323, 333-334 [197 N.W. 808, 39 A.L.R. 782]; State v. Pluth, 157 Minn. 145 [195 N.W. 789, 792] ; Keith v. State, 30 Okla.Crim. 168 [235 P. 631, 633]; People v. Stein, 265 Mich. 610 [251 N.W. 788, 790, 92 A.L.R. 481] ; Smith v. State, 109 Tenn. 633 [90 S.W.2d 523, 524]; Morgan v. State, 197 Ind. 374 [151 N.E. 98, 100] ; People v. Henneman, 373 Ill. 603 [27 N.E.2d 448, 449]; State v. Miles, 29[*644] Wn.2d 921 [190 P.2d 740, 745] ; State v. George, 32 Wyo. 223 [231 P. 683, 689]; State ex rel. Thibodeau, v. District Court, 70 Mont. 202 [224 P. 866, 870]; Aitken v. White, 93 Cal. App.2d 134, 145 [208 P.2d 788], semble; Cook v. Singer Sewing Machine Co., 138 Cal.App. 418, 422 [32 P.2d 430], semble; contra: State v. Williams, 328 Mo. 627 [14 S.W.2d 434, 435-436].) If, therefore, it is necessary to rely on the search to justify the arrest, the conclusion is inescapable that a search that cannot be justified by what it turns up cannot justify the arrest. Moreover, whether or not the arrest of a guilty defendant is lawful, it is clearly unreasonable if the officer has no “reasonable cause” to believe the defendant guilty, and a search incident thereto can be no more reasonable than the arrest itself.

To accept the attorney general’s contention would defeat the purpose of the constitutional provisions prohibiting unreasonable searches and seizures and destroy the efficacy of the exclusionary rule in many felony prosecutions. Officers would be free to arrest and search anyone, however innocent, in the hope that the search would justify the arrest. “ [T]he constitutional provisions make no distinction between the guilty and the innocent, and it would be manifestly impossible to protect the rights of the innocent if the police were permitted to justify unreasonable searches and seizures on the ground that they assumed their victims were criminals. Thus, when consideration is directed to the question of the admissibility of evidence obtained in violation of the constitutional provisions, it bears emphasis that the court is not concerned solely with the rights of the defendant before it, however guilty he may appear, but with the constitutional rights of all of the people to be secure in their homes, persons, and effects.” (People v. Cahan, 44 Cal.2d 434, 439 [282 P.2d 905].) In the light of these considerations we adopted the exclusionary rule “because other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers with the attendant result that the courts under the old rule have been constantly required to participate in, and in effect condone, the lawless activities of law enforcement officers.” (44 Cal.2d at p. 445.) We were fully aware that in its immediate operation the exclusionary rule would permit guilty persons to escape punishment, but were convinced that it was necessary to secure respect by law enforcement agencies of constitutional guarantees. It would fail of its purpose, if in the only area[*645] of its effective operation it could be defeated because the arresting officer guessed correctly in making an arrest.

The order is affirmed.

Gibson, C. J., Shenk, J., Carter, J., Schauer, J., Spence, J., and McComb, J. pro tern., * concurred.

Appellant’s petition for a rehearing was denied December 28, 1955. McComb, J. pro tern., * participated therein in place of Edmonds, J. Shenk, J., and Spence, J., were of the opinion that the petition should be granted.

*

This question would be presented directly if a guilty felon sued an officer for false arrest on the ground that the officer had no reasonable cause to believe him guilty (see Rest., Torts, § 119, comment g), or sought to justify resisting arrest on the same ground. (See State v. Nolan, 354 Mo. 980 [192 S.W.2d 1016, 1019-1022].)

*

Assigned by Chairman of Judicial Council.