Opinion
Rehearing Denied May 18, 1966.
For Opinion on Hearing, see 54 Cal.Rptr. 123, 419 P.2d 187.
Dahlstrum & Walton and Jack A. Dahlstrum, Los Angeles, for defendant and appellant.
Thomas C. Lynch, atty. Gen., William E. James, Asst. Atty. Gen., and Walter R. Jones, Deputy Atty. Gen., for plaintiff and respondent.
KINGSLEY, Justice.
Defendant was charged with possession of heroin for sale, in violation of Health and Safety Code, section 11500.5. Seven prior felony convictions were later incorporated as part of an amended information. Defendant's motion to set aside the information pursuant to Penal Code section 995 was denied; the information was amended to add allegations of four additional prior felony convictions. Defendant pled 'Not STATEMENT OF FACTS
Officers Walker and Garrahan had warrants for the arrest of one Oscar Jessie Coates and other persons for a series of burglaries. Officer Walker previously had received information from an Orange County prosecutor that burglary loot and five ounces of heroin were in Coates' residence, and that Coates resided with a woman named Gladys. This information was originally supplied to the prosecutor by two suspects who said they had once lived with Coates; these suspects had never before given the police any information. On the basis of the information and an independent investigation, the warrants for Coates, a man named Johnson, and four others, not including Gladys Smith, were issued.
Several police officers staked out Coates' residence. Coates and one Ruth Ann Darris exited from the house and entered a car parked in the driveway. As the car backed into the street at about thirty feet from the house, Officers Walker and Garrahan arrested Coates pursuant to the warrant. Officer Garrahan, who had been on the narcotics squad twelve and one-half years, observed puncture marks on Miss Darris' hand, arrested and searched her, and found narcotics.
Leaving the arrestees with other officers, the police officers went to the door of the residence, knocked, Gladys Smith opened the door, she stepped back, the officers walked in, and then they identified themselves and explained their presence. Guy Johnson (for whom a warrant had been issued), two other women and Miss Smith were discovered in the house at that time. One officer saw narcotics in a plastic bag in plain view on the floor by a hall doorway. All present were placed under arrest and a thorough search was made.
While in the house the telephone rang, Officer Walker picked up the phone, and a voice asked if this was Jessie. Officer Walker said 'Yes,' and the voice then said:
'Man, what's holding you up. I've been waiting for you a long time and I can't stand around on the street with this stuff in my pocket.'
There was further colloquy, and finally the voice said:
'Hurry up, I can't stand around with this stuff in my pocket. I might get picked up.'
Coates then told the officer who the defendant was, and where Coates was to meet him to pick up some heroin. Coates had never before given the officers any information. The officers went to the proper location, identified themselves, asked defendant what he was doing there and what he had previously been arrested for, searched the defendant, found a condom containing white powdery substance that was heroin, and then arrested defendant. This arrest took place two blocks outside of city jurisdiction, in the City of Huntington Park. A search of the defendant's vehicle revealed more heroin.
At the trial a motion to suppress the evidence was sustained as to the search of defendant's automobile, but the search of Coates' residence was held proper, and the arrest of defendant and search of his person were held proper.
The charge of possession for sale fell with the exclusion of the articles found in defendant's automobile, resulting in the reduction to the lesser offense of possession, which the discovery of heroin on defendant's person supported, if evidence of that discovery was properly admitted.
Defendant contends that the search and subsequent arrest of defendant was unlawful (1) The entry into and search of Coates' home was illegal; therefore the evidence as to the phone call, and of all of the events which resulted from that call, were improperly received as being the fruits of the illegal entry.
(2) Assuming a legal entry into the Coates residence, the phone call, and Coates' identification of defendant as the caller, did not give the officers reasonable grounds to search and arrest defendant, rendering the admission of the results of that search inadmissible.
(3) Nothing that occurred when the officers accosted defendant added to the issue of probable cause.
(4) Since the search and arrest occurred outside the City of Los Angeles, the officers had no more authority than any private citizen and a citizen's arrest and search would not have been lawful.
I
While it is not here contended that the arrest of Coates was not based on a valid warrant, it is admitted that the warrant authorized only arrest and not search. Consequently, the entry into Coates' residence must be justified on some other basis, and the prosecution bears the burden of showing legality. (People v. Haven (1963) 59 Cal.2d 713, 31 Cal.Rptr. 47, 381 P.2d 927.)
The entry and search clearly cannot be justified on the theory that it was incident to the arrest of Coates. People v. Cruz (1964) 61 Cal.2d 861, 40 Cal.Rptr. 841, 395 P.2d 889; People v. Bustillos (1965) 237 Cal.App.2d 554, 47 Cal.Rptr. 283; and People v. Martinez (1965) 232 Cal.App.2d 796, 43 Cal.Rptr. 197, among other cases, make it clear that an arrest in an automobile thirty feet away from a residence, cannot support a search of that residence.
237 A.C.A. 648, 652.
It is contended that the officers had reasonable grounds to believe that the offense of possession of narcotics was being committed in the house and that this justified their entry. The data possessed by the officers, at the time of entry, was as follows: (1) They had been told by a deputy district attorney of Orange County that that official had been told by two informants that the informants had lived at this residence, with Coates, and that Coates kept large quantities of heroin therein. (2) The officers had just arrested a woman seen leaving the premises and had found heroin on her person. Whether or not the arrest and search of the woman was valid in light of People v. Ferguson (1963) 214 Cal.App.2d 772, 29 Cal.Rptr. 691, we need not decide. The Orange County informants, although not tested by previous information, had been corroborated by independent investigation which had verified the parts of their stories which tied Coates into a burglary operation; we think that that verification was enough to lend credence to the rest of their story which had implicated Coates in narcotics. For the officers to conclude that, if Coates kept narcotics at his residence , the other occupants (one of whom had been identified by name) were in joint possession was also reasonable. It follows that the officers had a right, independent of Coates' arrest, to enter and search the house as incident to an expected arrest of its occupants for their possession of heroin.
Since the officers were, thus, lawfully in the house it is immaterial whether or not Miss Smith's conduct when they knocked at the door was a valid and uncoerced consent to entry.
And, since the officers were legally in the house, it was not illegal for them to answer the phone and to acquire the information that someone wanted to deliver narcotics to Coates and his associates.
But the phone call did not identify the caller and the officers had no information People v. Tovar
People v. Amos People v. MichaelEven had defendant been discovered and accosted within the boundaries of the City of Los Angeles, we do not think that anything occurred to justify searching him. The pre-search investigation, when the officer accosted him, had revealed only defendant's name and that he had previously been arrested for possession and for use of narcotics. But this information did not disclose any new basis for believing that defendant was then in possession of narcotics nor, in fact, anything more than that he was the person on whom Coates had tried to place responsibility for the phone call. For all that the officers had learned, Coates had simply picked out of thin air the name of a person with a narcotic record and sent the officers on a chase after defendant in order to protect the real caller. The fact that Coates had named a real person, and that that person was where Coates had said he would be, was no more a verification of Coates' nonreliable information than were the same facts in Tovar and in Amos. The search was without probable cause; that it turned up incriminating evidence is immaterial.
Since there was no probable cause to arrest or search defendant, we need not consider whether or not the officer's authority was diminished by reason of the fact that the events took place in Huntington Park and not in Los Angeles. (Cf. Pen.Code § 817, as amended in 1965; People v. Martin (1964) 225 Cal.App.2d 91, 36 Cal.Rptr. 924; People v. Alvarado (1962) 208 Cal.App.2d 629, 25 Cal.Rptr. 437.)
The judgment is reversed.
JEFFERSON, J., concurs.
FILES, Presiding Justice (dissenting).
The error of my colleagues is in assuming that defendant's arrest was based upon the untested veracity of Jessie Coates. That is not the case.
Sergeant Walker, in Coates' apartment, received a call from a man who said he was standing on the street with 'stuff,' in his pocket, waiting for Jessie. This telephone call was not a 'report' from an informer. It was the officer's own discovery that a felony was being committed nearby, and that Jessie must know the identity and location of the felon. Jessie then said that he was to meet a 40-year-old tall Mexican, weighing 190 to 200 pounds, with a heavy mustache, driving a white 1956 or 1957 Oldsmobile, on the 6800 block on Albany Street. Sergeant Walker went to this location, saw defendant and a 1956 white Oldsmobile. Defendant's personal description is not in the record, but we must assume, in support of the judgment, that the trial judge found that the description fit the man. Upon the sergeant's inquiry, defendant said his name was Rudolph and that he had previously been arrested for narcotics offenses. His only explanation for being there was 'that he was just walking around.'
Like a proposition in geometry, when some facts are known and others only assumed, the validity of the whole is demonstrated when all of the parts, those known and those assumed, are found to correspond. Given what Sergeant Walker knew of his own knowledge as he stood talking with defendant on Albany Street, the odds against a mistake were overwhelming. It was of Under the circumstances Sergeant Walker had cause for a strong and reasonable belief that defendant was committing a felony. Even though the officer was outside of Los Angeles, Penal Code section 837 authorized him to make a citizen's arrest. (People v. Alvarado, 208 Cal.App.2d 629, 25 Cal.Rptr. 437.) The search of defendant's person was a proper incident of that arrest, though preceding it. (People v. Cockrell, 63 A.C. 691, 698, 47 Cal.Rptr. 788, 408 P.2d 116.)
I would affirm the judgment.
Rehearing denied; Files, C.J., dissenting.