People v. Hutson

SCHOTTKY, J. Norman Hutson was charged by information with three counts of burglary. After a jury trial he was found guilty on all three counts. His motion for a new trial was denied and judgment was pronounced. He has appealed from the order denying his motion for a new trial.

Appellant does not challenge the sufficiency of the evidence to sustain the convictions but bases his appeal upon two major contentions:

“1. The arrest made by Officer Thomas for vagrancy was illegal.

“2. Since the arrest was illegal, the search incident thereto was also illegal and the evidence obtained should not have been admitted.”

Before discussing these contentions we shall summarize the evidence as shown by the record insofar as it is relevant to the arrest and the search.

Officer Thomas of the IJkiah Police Department observed appellant at 4 a. m. standing near a telephone pole close to the entrance of the Diamond Match Company. The Diamond Match Company is located in an area frequented by drunks and hobos and approximately one-half block from the railroad tracks. He noticed that appellant seemed to be observing him. The officer then saw a second man come out of the shadows and saw both men start to walk toward the railroad tracks. Appellant was carrying a brown burlap sack over his shoulder. The second man, one Cooper, was carrying a blue bag and a brief ease. The officer stopped the two men. They told him that they were going to catch a fast freight out of town. Appellant told the officer that he lived in Ukiah, but he was unable to give the officer an address. Cooper gave an address but said he was leaving town because he was unable to pay his rent. The officer could not recall whether or not he asked the two men if they had any money. He testified that it was his impression “they were just a couple [of] hobos going through town, ...” While talking to the men the officer observed a flashlight and an electric drill in the brief case. He then decided to take them in as vagrants “upon no lawful business in the street at late and unusual hours.” After the men were booked the bags they were carrying were searched. The material found in the bags was identified as coming from [597]three business establishments which had been burglarized. While they were walking toward the police station, Cooper asked the officer if he had seen them carrying anything. The officer said, “No.” Cooper informed the officer that he did not know what was in the bags they were carrying. Officer Thomas said, “What do you mean, you don’t know what you’re carrying?” Cooper stated, “Well, we found them.” Officer Thomas then stated, “Well, are you in the habit of picking up things you find?” Cooper answered, “Yes, if we find them, we are.”