People v. Blodgett

CARTER, J.

I dissent.

I cannot agree that the sight of a cab parked in front of a hotel in the early hours of the morning is sufficient to constitute reasonable cause for a police investigation. The law, as set forth in People v. Simon, 45 Cal.2d 645, 648 [ 290 P.2d 531 ], is that “. . . the search of defendant’s person may be justified only if he was committing or attempting to commit an offense in the officer’s presence (Pen. Code, § 836, subd. 1), or the officer had reasonable cause to believe he had committed a felony. (Pen. Code, § 836, subd. 5.) ” Just how it can be said that two people getting into a cab early in the morning is “unusual conduct” is not entirely clear to me. I had thought that it was a frequent occurrence.

“Under these circumstances, to permit an officer to justify a search on the ground that he ‘didn’t feel’ that a person on the street at night had any lawful business there would *119 expose anyone to having his person searched by any suspicious officer no matter how unfounded the suspicions were. Innocent people, going to or from evening jobs or entertainment, or walking for exercise or enjoyment, would suffer along with the occasional criminal who would be turned up.” (Mr. Justice Traynor, speaking for the court, in People v. Simon, supra, at pp. 650, 651 .) If the sight of two people getting into a taxicab in front of a hotel early in the morning constitutes reasonable cause to believe that a felony is being committed, then any couple out for an evening of entertainment may be subjected to police surveillance and search. This, in the words of Mr. Justice Jackson (United States v. Di Re, 332 U.S. 581, 595 [ 68 S.Ct. 222 , 92 L.Ed. 210 ], is a “greater danger to a free people than the escape of some criminals from punishment.”

It would appear that the salutary rule of People v. Cahan, 44 Cal.2d 434 [ 282 P.2d 905 ], is to be circumscribed by an unlimited and unwarranted extension of the concept of what constitutes reasonable cause. In People v. Martin, ante, p. 106 [ 293 P.2d 52 ], the sight of two men parked in an automobile at night was held to constitute reasonable cause for a police investigation and warrant a search of their persons and automobile; here, the sight of a man and woman getting in a cab in front of a hotel in the early hours of the morning is held to constitute reasonable cause for police investigation and a search of their persons and the taxicab. It is no answer that the search showed illegal possession of narcotics since the search may not be justified because it, in fact, shows that the defendant was guilty of a felony. (People v. Brown, 45 Cal.2d 640 [ 290 P.2d 528 ]; People v. Simon, 45 Cal.2d 645 [ 290 P.2d 531 ].)

In the majority opinion it is stated that Officer Barker had reasonable grounds to believe that defendant was hiding contraband because of his “furtive action” in getting out of the cab for questioning. In Carroll v. United States, 267 U.S. 132, 160 [ 45 S.Ct. 280 , 69 L.Ed. 543 , 39 A.L.R. 790 ], the court very carefully and at length set forth the evidence and noted that the officers had known of the bootlegging activities of the defendants for two months prior to the search and seizure; in Husty v. United States, 282 U.S. 694 [ 51 S.Ct. 240 , 75 L.Ed. 629 , 74 A.L.R. 1407 ], the officer had received prior, reliable information that Husty was carrying contraband; in Brinegar v. United States, 338 U.S. 160 [ 69 S.Ct. 1302 , 93 L.Ed. 1879 ], the officer conducting the search *120 had arrested the defendant some five months prior to the search for carrying liquor and had seen him on at least two occasions in the six months preceding the search loading .liquor in his car which, on the day in question, appeared to be heavily loaded with what the defendant admitted to be liquor; in United States v. One 1946 Plymouth Sedan Automobile, 167 F.2d 3 , the officer had received advance reliable information that the defendant would make delivery of tax unpaid alcohol in a certain vicinity. It may therefore be seen that all of the cases relied upon by the majority are easily distinguishable from the one here under consideration in that in all of them the facts showed some basis for suspecting that a crime was being committed.

I also disagree vehemently with the statement in the majority opinion that “there is nothing unreasonable in an officer’s questioning persons outdoors at night.” Cited in support of this statement are People v. Simon, 45 Cal.2d 645 [ 290 P.2d 531 ], and Gisske v. Sanders, 9 Cal.App. 13 [ 98 P. 43 ], neither of which supports the statement as it is here set forth.

Because the search was conducted without reasonable cause to believe on the part of the officers that a felony was being committed,'the evidence procured thereby was illegally obtained and inadmissible under the rule set forth in People v. Cahan, 44 Cal.2d 434 [ 282 P.2d 905 ].)

I would therefore reverse the judgment.