People v. Boyles

— 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.

It should be noted at the outset that whether or not the officers were trespassers in the room where they waited for defendant is immaterial in this case. It does not appear that the room was searched, and even if it was, nothing that may have been found in the room was offered or introduced in evidence. It is apparent that the officers were waiting and watching for someone to enter the room. Since they had the cooperation of the manager of the hotel, however, any such person could have been apprehended just as well from some other vantage point nearby without committing any trespass, and thus their ability to arrest and search defendant was not dependent on their presence in the room. Under these circumstances, the trespass, if any, was entirely unrelated and collateral to the securing of the evidence to which defendant objects, and it could not therefore render

The attorney general contends that the search in this case was incidental to a lawful arrest and was therefore reasonable Defendant, on the other hand, contends that the search preceded the arrest and was not incidental thereto and that in any event the arrest was unlawful.

In People v. Brown, ante, p. 640 [ 290 P.2d 528 ], we held that a search incident to an arrest could not be justified in the absence of “reasonable cause” under Penal Code, section 836, merely because it revealed that defendant was in fact guilty of a felony. We also held in that case that an arrest could not be justified under subdivision 1 of section 836 when there was no evidence of anything apparent to the officer’s senses before the arrest and search that defendant was committing or attempting to commit a public offense in his presence. Accordingly, since there was no such evidence in this case, the search may be justified only if it was incidental to a lawful arrest under subdivision 3 of section 836. If, however, an arrest under that subdivision was lawful, the search incident thereto would not be unlawful merely because it preceded rather than followed the arrest. (People v. Simon, ante, p. 645 [ 290 P.2d 531 ].)

Section 836, subdivision 3, provides that an officer may make an arrest without a warrant “When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.”

Defendant contends that to justify a search incident to an arrest under this subdivision there must be evidence, other than any turned up in the search, that a felony has in fact been committed. Such evidence is present in any case in which the officer has reasonable cause to believe defendant guilty of a felony. When his belief of defendant’s guilt is based on reasonable cause and a felony has in fact been committed, not only are the requirements of subdivision 3 satisfied, but a search incident to an arrest thereunder is reasonable. (See United States v. Di Re, 332 U.S. 581 , 591 [ 68 S.Ct. 222 , 92 L.Ed 210 ]; Johnson v. United States, 333 U.S. 10 , 15 [ 68 S.Ct. 367 , 92 L.Ed. 436 ]; In re Dixon, 41