# People v. Harris

> California Court of Appeal · April 29, 1980 · 105 Cal. App. 3d 204

URL: https://www.frixlaw.com/law-library/cases/9727197

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. IRVIN DEWAYNE HARRIS, Defendant and Appellant
- **Court:** California Court of Appeal
- **Decided:** April 29, 1980
- **Citations:** 105 Cal. App. 3d 204; 164 Cal. Rptr. 296; 1980 Cal. App. LEXIS 1768
- **Precedential status:** Published
- **Opinion:** Concurring in part by Poche
- **Judges:** Caldecott, Poché
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9727197

## Opinion text

POCHÉ, J., Concurring and Dissenting.
I concur in the judgment and I in parts III and IV of the majority opinion only.
Part I of the majority opinion holds (1) that the warrantless arrest of Ms. Devlin was justified by the specific and articulable facts known to the arresting officer at the time he took her into custody, and (2) that the subsequent warrantless search of her purse at the police station was justified as “incident to the booking procedure.” It concludes that the evidence seized and used against appellant need not have been suppressed; I disagree.
In part II the majority opinion concludes that a prior conviction for receiving stolen property (Pen. Code, § 496) is not “similar” to the crimes charged: burglary (Pen. Code, § 459) and grand theft (Pen. Code, §§ 484-487, subd. 1). The opinion then applies the 1972 rules of People v. Beagle (1972) 6 Cal.3d 441 [ 99 Cal.Rptr. 313 , 492 P.2d 1 ], rather than the 1979 rules enunciated in People v. Fries (1979) 24 Cal.3d 222 [ 155 Cal.Rptr. 194 , 594 P.2d 19 ]. To each of those determinations I dissent.
*222 I
Probable Cause for Warrantless Arrest
The Supreme Court of this state has often recited the criteria that establish probable cause for arrest without a warrant. “‘Cause for arrest exists when the facts known to the arresting officer “would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.” [Citations.]’” (People v. DeVaughn (1977) 18 Cal.3d 889, 895 [ 135 Cal.Rptr. 786 , 558 P.2d 872 ], citing People v. Harris (1975) 15 Cal.3d 384, 389 [ 124 Cal.Rptr. 536 , 540 P.2d 632 ].) “A mere hunch or a good faith belief on the part of the arresting officer is not enough; he ‘“must be able to point to specific and articulable facts which.. . reasonably warrant”’ his suspicion that an offense has been or is being committed. [Citation.] Further, an arrest and search based on events as consistent with innocent as with criminal activity are unlawful. [Citation.]” (People v. Martin (1973) 9 Cal.3d 687, 692 [ 108 Cal.Rptr. 809 , 511 P.2d 1161 ].)
The majority here bases its finding of probable cause on two separate “grounds”: (1) Officer Maehler was justified in his belief that Ms. Devlin had knowingly given Officer Woltering false information so as to facilitate appellant’s escape from arrest, and (2) the officer was justified in believing that Ms. Devlin was involved in the commission of the underlying burglary. These “grounds” derive in turn from her “presence and suspicious movements on the deserted street in the middle of the night; her untruthful answers to the officer’s questions; her active assistance of appellant’s escape efforts.” Even taken at face value, the conduct does not by itself constitute probable cause for believing that it indicates commission of a burglary. If it did, every citizen found walking a dog late at night within a radius of several blocks from a reported burglary who gives inaccurate statements to police about the movements of possible suspects in the area would be subject to arrest and search in connection with the burglary itself. Prior to her arrest, there was no evidence whatever of Devlin’s participation in the burglary.
With respect to probable cause for arrest on the ground that Devlin’s purpose was to “facilitate appellant’s escape from arrest,” scrutiny of her conduct fails to provide a basis for “an honest and strong suspicion” that she was guilty of a crime. The specific and articulable facts to *223 which the arresting officer was able to point at the time of the arrest were as consistent with innocent as with criminal activity.
The articulable facts actually relied on by the arresting officer consisted of her presence with a small dog on the corner of an otherwise deserted street, a reported “false reply” to a fellow officer’s question about the direction of flight of a burglary suspect, her inconsistencies in explaining her presence in the neighborhood, and the disparity between the name she gave the arresting officer and the name on her driver’s license. 1 Nothing more.
Ms. Devlin’s presence on a deserted street with a small dog on a leash in a residential area cannot reasonably constitute probable cause for arrest and can contribute but little of cumulative effect to other facts.
The reportedly false reply about the suspect’s flight made to Officer Woltering and reported by him to the arresting officer, Maehler, was that he was seen “running down north on Lexington.” Under cross-examination, Officer Woltering affirmed that when he first saw the suspect, said suspect was in fact walking north in “the same direction she had then indicated.” The basis for Officer Woltering’s feeling that he had been given a false story was the disparity between his impression that Devlin had directed his attention “way down Lexington” and the subsequent appearance of the suspect heading north at a point less far along Lexington than he expected. He also admitted that Devlin did not say “way down Lexington,” but merely that the suspect was running down Lexington. On this evidence, it cannot be reasonably maintained that a false reply to a fellow officer supports Officer Maehler’s belief *224 that there was probable cause for arrest. As appellant correctly argues, even if Maehler honestly believed that Devlin had given Woltering false information, unless the basis for his belief was valid, such belief does not provide probable cause for arrest. (Remers v. Superior Court (1970) 2 Cal.3d 659, 666-667 [ 87 Cal.Rptr. 202 , 470 P.2d 11 ].)
Devlin’s allegedly suspicious behavior is also incapable of providing Maehler with probable cause. Officer Maehler did not see any suspicious behavior nor were Officer Woltering’s suspicions communicated to him. When asked whether he had seen Devlin “do anything unusual” and whether he had seen what she was doing or where she was during the “ten to fifteen minutes” in which the officers took appellant into custody, Maehler replied, “No” to all questions.
The remaining articulable facts on which the majority opinion finds probable cause are the inconsistencies in Ms. Devlin’s explanation of how she came to be in the area and in the names offered in identifying herself. She said she had taken BART from Richmond to the station in El Cerrito to meet a friend arriving from San Jose. The officer was troubled by his awareness that BART does not run to San Jose and that “only seeing-eye dogs are allowed on BART.” He was dissatisfied with her explanation that “someone was taking” her friend from San Jose to a BART station from which she would ride BART to El Cerrito and that she had carried her dog onto the train in a small box. He “then advised her she was either going to come up with some identification so she could prove who she was or I was going to take her into custody.” Although she had earlier given the name Lynn Devlin Jackson and said she did not have any identification, she produced a driver’s license with a Salinas address in the name of Sharon Lynn Devlin. Immediately thereafter she was arrested “for investigation of 459 burglary.”
If probable cause to arrest without warrant for a suspected felony exists in this conduct, I am unable to find it. If it exists here, then any reputable female citizen who “smuggles” a small dog onto BART to meet a friend for private and personal reasons which she would rather not explain to strangers, is only two steps away from arrest. If she accidently chooses to meet her friend on a deserted street near where a felony has been committed and if one of the three names she uses to introduce herself differs from the three names on her driver’s license (as might well be the case for a married woman), then she may be arrested without a warrant for complicity in the felony.
*225 Because all the facts articulable by the arresting officer at the time of the arrest are as consistent with innocence as with criminal activity, no probable cause for Devlin’s arrest without a warrant existed. Accordingly, it should not be necessary to reach the question of whether evidence seized from her incident to that arrest was the result of a legal search. But even if the arrest passes constitutional muster, the search does not.
The Legality of the Booking Search
The Supreme Courts of the United States and of California have “repeatedly held that warrantless searches are per se unreasonable under the Fourth Amendment, subject only to a few carefully circumscribed and jealously, guarded exceptions.” (People v. Dalton (1979) 24 Cal.3d 850, 855 [ 157 Cal.Rptr. 497 , 598 P.2d 467 ]; People v. Minjares (1979) 24 Cal.3d 410, 416 [ 153 Cal.Rptr. 224 , 591 P.2d 514 ]; Arkansas v. Sanders (1979) 442 U.S. 753 [ 61 L.Ed.2d 235 , 99 S.Ct. 2586 ].) If a warrantless search “is to be upheld, it is the state’s burden to show that the search falls within one of those exceptions.” (People v. Minjares, supra, 24 Cal.3d at p. 416.)
The majority opinion holds that a booking search is a well established exception to the prohibition against warrantless searches. It cites in support of this holding four cases of vintage as old as or older than 1971.
The opinion next rejects appellant’s reliance on United States v. Chadwick (1977) 433 U.S. 1 [ 53 L.Ed.2d 538 , 97 S.Ct. 2476 ], by attempting to narrow the holding to the facts in that case and to distinguish them from those in the case at bench. Chadwick does, nevertheless, apply. Here, as there, the container searched was one for which its owner had a reasonable expectation of privacy (a woman’s purse may be even more private than a foot locker), was under the exclusive control of the police (it had been taken at the time of arrest and put on the front seat of the police car), and there was no danger that access to it might permit use of a weapon or destruction of evidence before a valid search warrant could be obtained.
The applicability of Chadwick to cases such as ours has been clearly asserted by the California Supreme Court in Minjares, supra, 24 Cal. 3d 410 . In that case a closed, zippered tote bag was found in the trunk of a car seized incident to the arrest of its occupants. While the defendant was in the police station, the car trunk lock was picked in the *226 city yard by police who thought the second suspect might be hiding therein. The Supreme Court applied Chadwick directly and used a case like the one at hand as an example: “It is clear from Chadwick itself that the tote bag would not have been subject to a warrantless search if appellant had been arrested on the street and the bag taken from his possession. The government had also contended in Chadwick that any property in the possession of one who is arrested is subject to a warrant-less search. In rejecting this contention the Supreme Court stated that ‘warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the “search is remote in time or place from the arrest,” [citation], or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.’ ( 433 U.S. at p. 15 [53 L.Ed.2d at pp. 550-551], italics added; see also United States v. Schleis, supra, 582 F.2d at p. 1172.)” (People v. Minjares, supra, 24 Cal.3d at pp. 419-420; italics in first sentence added.) In our case, appellant had been arrested on the street, the bag was taken from her possession and no exigency existed.
In Minjares , the California Supreme Court repeated the compelling language of the rationale of Chadwick: “This is the rationale of Chad wick: ‘Even though on this record the issuance of a warrant by a judicial officer was reasonably predictable, a line must be drawn. In our view, when no exigency is shown to support the Heed for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority.' ( 433 U.S. at p. 15 [ 53 L.Ed.2d at p. 551 ], italics added.) To hold otherwise would exalt the exceptions above the rule.” (Id., at p. 421.) It behooves this court to toe the line precisely where the warrant clause places it. As soon as Ms. Devlin’s purse came under the exclusive dominion of the police, as the record shows it did, a warrant was necessary before further search could be made.
In view of the California Supreme Court’s application of Chadwick to cases such as this, left undisturbed by the United States Supreme Court (People v. Minjares (1979) 24 Cal.3d 410 [ 153 Cal.Rptr. 224 , 591 P.2d 514 ]; cert. den. (1979) 444 U.S. 887 , [ 62 L.Ed.2d 117 , 100 *227 S.Ct. 181 ], it is unnecessary to review the observations by the majority on the extent to which the Court of Appeal in People v. Pace (1979) 92 Cal.App.3d 199 [ 154 Cal.Rptr. 811 ], “properly reflect[s] the applicable law.”
I am acutely conscious of the conflicting results that have been wrought by diverse attempts to reconcile the prerequisites for warrant-less search demanded by Chadwick with prior rules that Chadwick may or may not have displaced. One source of confusion is the ambiguity in the Chadwick rule: “Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” (United States v. Chadwick, supra, 433 U.S. at p. 15 [ 53 L.Ed.2d at p. 551 ]; italics added.) One interpretation of this rule is that property which is “immediately associated with the person of the arrestee” is also immune from the prohibition against warrantless search after the arrestee’s property is under the exclusive control of the police. This view underlies the majority opinion. It finds Devlin’s purse immediately associated with her person and therefore not protected by the Chadwick rule against warrantless search.
The better interpretation of the rule is that of Minjares and more recent cases (cited supra). It looks to the necessity for making exceptions to Fourth Amendment guarantees against search without warrant, when exigent circumstances attend an arrest. Absent such necessity, the •guarantees must predominate. That is the meaning of Chadwick , as reaffirmed by Mr. Chief Justice Burger who wrote the opinion. “The essence of our holding in Chadwick is that there is a legitimate expectation of privacy in the contents of a trunk or suitcase accompanying or being carried by a person;. . . The warrant requirement is not so onerous as to command suspension of Fourth Amendment guarantees once the receptacle involved is securely in the control of the police,...” (Conc. opn., Arkansas v. Sanders, supra, 442 U.S. at pp. 766-767 [ 61 L.Ed.2d at p. 247 , 99 S.Ct. at pp. 2594-2595].)
Not only are we bound to apply the law as directed by Minjares and Sanders , but we also benefit from a formulation of the Chadwick rule that permits straightforward application by the police. For at least as far back as 1955, the California Supreme Court committed itself to develop rules of evidence free of “needless refinements and distinctions.” *228 In adopting the exclusionary rule, it sought to “[open] the door to the development of workable rules governing searches and seizures and the issuance of warrants that will protect both the rights guaranteed by the constitutional provisions and the interest of society in the suppression of crime.” (People v. Cahan (1955) 44 Cal.2d 434, 451 [ 282 P.2d 905 , 50 A.L.R.2d 513 ].) Under the Minjares-Sanders mandate, an arresting officer should first try to reduce the arrestee’s property to the exclusive control of the police. The property thus secured then cannot be reached by the arrestee: he cannot seize a weapon or destroy evidence. The officer need not ponder the precise degree to which the arrestee’s property is “immediately associated” with his person in order to insure that evidence discovered will be admissible. If the officer also has probable cause to search the property in his control, he can obtain a warrant at his convenience.
Although the warrantless arrest and search here were illegal and constitute errors of constitutional dimension, reversal is not required unless a miscarriage of justice has resulted (Cal. Const., art. VI, § 13) or unless the court is not able to declare a belief that these errors were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710-711 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ].) The purse seized from Ms. Devlin contained: (1) two penlight flashlights of the type found at the scene of the burglary, (2) appellant’s wallet with driver’s license, and (3) the picture of an infant. Although this evidence may have served to strengthen the conclusion that appellant was guilty, I have no doubt that the same verdict would have been reached on the compelling evidence of identification by an officer who saw appellant running from the scene, of appellant’s inability to provide a credible explanation of his presence or flight and of the glass fragments in his shoes that matched the glass broken in the course of the burglary.
II
Impeachment
Even the most casual observer of the intricate process that a trial judge must engage in to determine whether a prior conviction may be used for impeachment purposes, realizes that many appeals have gone under the bridge since the 1972 decision in People v. Beagle (1972) 6 Cal.3d 441 [ 99 Cal.Rptr. 313 , 492 P.2d 1 ]. The most recent decisions from the Supreme Court in this area are People v. Fries (1979) 24 *229 Cal.3d 222 [ 155 Cal.Rptr. 194 , 594 P.2d 19 ] and People v. Spearman (1979) 25 Cal.3d 107 [ 157 Cal.Rptr. 883 , 599 P.2d 74 ], which are not mere echoes of Beagle. Instead, they are a restatement of the rules especially with respect to how a trial judge should handle the problem of “similars.” The majority here shunts Fries aside by limiting it to its facts: use of an identical prior where the defendant does not testify. If the Supreme Court viewed its Fries decision as a narrow one which should be limited to its facts, they picked a strange way of telling us. Throughout the majority opinion in Fries , continual lengthy references are made not only to identical priors but to “similars” and not. only to the situation where the defendant takes the stand but where he does not. The rules enunciated in Fries and Spearman are straightforward; we are charged to enforce them. To pretend that these pronouncements do not exist or that when the Supreme Court talks in terms of “similar” priors it really doesn’t mean what it says, is to create chaos at the trial level in an area of case law where lucidity is not the norm.
The Fries rules are: (1) “... the first factor which the trial court must evaluate is whether the prior conviction reflects adversely on an individual’s honesty or veracity.” (24 Cal.3d at p. 226.)
Here, the prior conviction was for receiving stolen property: “convictions for theft offenses... \ .. are somewhat less relevant’ on the issue of credibility than are crimes such as perjury [citation] and hence are entitled to ‘somewhat less’ weight.” (Id., at p. 229.) (2) “The second factor which the trial court must evaluate in determining whether the conviction is probative of the witness’ credibility is the nearness or remoteness in time of the prior conviction.” (Id.; at p. 226.)
The prior here was two years old and therefore not remote. (3) “The trial court must weigh these two factors, which show the probative value of the conviction, against the probability that admission of such evidence ‘will... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury....’ [¶] .. .(People v. Antick [1975], supra, 15 Cal.3d at p. 97 [ 123 Cal.Rptr. 475 , 539 P.2d 43 ]) which occurs when the prior convictions are admitted to impeach the credibility of a defendant who testifies, and (2) the adverse effect on the administration of justice when a defendant elects not to take the stand in order to keep information about his prior felony convictions from the jury.” (Id., at p. 227.)
*230 “While the risk of undue prejudice is substantial when any prior conviction is used to impeach the credibility of a defendant-witness, it is far greater when the prior conviction is similar or identical to the crime charged. (People v. Beagle, supra, 6 Cal.3d at p. 453; People v. Antick, supra, 15 Cal.3d at p. 97; People v. Rist [1976], supra, 16 Cal.3d at p. 219 [ 127 Cal.Rptr. 457 , 545 P.2d 833 ].). .. [T]his court has warned that similar or identical priors should be admitted ‘sparingly.’ (People v. Rist, supra, 16 Cal.3d at p. 219 .)” (Id., at p. 230.)
The majority here ignores the last rule enunciated in Fries and reaffirmed as “settled principles” in Spearman. (Spearman, supra, 25 Cal.3d at p. 114.) Instead we are told that the prior offense of receiving stolen property is not similar to the offenses charged: burglary and grand theft. Not only is no explanation for that conclusion given, but the majority opinion does not confront or mention People v. Banks (1976) 62 Cal.App.3d 38, 45 [ 132 Cal.Rptr. 751 ], which finds receiving to be similar to burglary.
Based on the rules enunciated in Fries and Spearman and summarized here, the effect of the prejudice to appellant was substantially greater than the value the prior could have provided in the assessment of appellant’s credibility.
It was error to find the prior similar conviction admissible. Nevertheless it is not reasonably probable that a result more favorable to appellant could have been reached in the absence of this error. (People v. Watson (1956) 46 Cal.2d 818 [ 299 P.2d 243 ].)
Accordingly, I concur in the judgment.
Appellant’s petition for a hearing by the Supreme Court was denied June 25, 1980. Bird, C. J., Mosk, J., and Newman, J., were of the opinion that the petition should be granted.
The majority opinion includes among the circumstances to be taken into account, the fact that “among the items stolen were baby clothes” and that Devlin made “curious” and “suspicious” movements. The arresting officer saw no such movements nor were anyone else’s observations communicated to him. As for the stolen baby clothes, even if such loot conceivably had a more definite nexus with probable cause than through the gender of the arrestees, these items were not known to be stolen at the time of Devlin’s arrest. Although Maehler testified that, “As I was responding, Officer Wise [i/c] advised on the radio that suspect had dropped some satchels and that some of them contained watches and the other contained baby clothes,” this must have been an error of hindsight. Officer Weiss did not learn the nature of the stolen items until he reentered Capwells with store manager Renko about an hour after the arrest. His broadcast, before that time, reported only “the possibility of the burglary in progress.” It was Officer Cook who observed the escaping suspect drop what “appeared to be a piece of baggage or briefcase or something like that... .That’s all I could tell,” but he did not stop to inspect it while giving chase. His broadcasts were concerned only with the description of the suspect and the latter’s direction of flight.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9727197. Public record. Not legal advice.