People v. O'Neill

In a court trial Donald Wayne O’Neill was found guilty of possessing heroin and was sentenced to state prison. He appeals from the judgment.

The matter was submitted upon the transcript of the preliminary hearing. Appellant did not testify.

There was evidence of the following facts: Having received information from an informer of unknown reliability that a tall, dark-complexioned man with a moustache named Gato and his brother, who had moved into an apartment house on South Union Street the previous week, were in possession of

In the course of his cross-examination Officer Dorrell was asked to disclose the name of his informant. Dorrell refused to answer upon the ground of privilege, whereupon appellant made a motion to strike the testimony of the witness respecting communications from the informer; the motion was denied by the magistrate. Appellant also objected to the introduction of the heroin in evidence upon the ground of illegal search and seizure; the objection was overruled. In stipulating that the matter be submitted upon the transcript of the preliminary appellant reserved his right to make a motion to suppress the contraband. The motion was made, it was argued at length, and it was denied by the court.

It is not contended on the appeal that the evidence was insufficient to support the conviction. Appellant argues that it was error to deny his motion to strike Dorrell’s testimony concerning communications from the informer and to overrule

We think the heroin was obtained by an unlawful search and seizure. No doubt the officers were justified in going to the apartment building to interview its occupants. (People v. Martin, 45 Cal.2d 755 [ 290 P.2d 855 ].) But the question is whether they were justified in making a forcible entry and search of O’Neill’s apartment. The only evidence offered on the subject of probable cause consisted of Dorr ell’s testimony regarding his conversation with the informer and the evidence that appellant slammed the door in Dorrell’s face when the officers accosted him as he was leaving the apartment. No other circumstances were relied upon as proof that the officers had reason to believe that appellant was committing a public offense. The showing was manifestly inadequate as a showing of probable cause for an arrest and search. It has been held that there is probable cause for an arrest and search where an officer has been told by a previously reliable informant that some one is in possession of narcotics and the suspect attempts to flee or engages in other furtive conduct 794 [ 334 P.2d 963 ]; People v. Gardner, 177 Cal.App.2d 43 upon the officer’s approach. (People v. White, 167 Cal.App.2d [ 1 Cal.Rptr. 830 ].) However, Dorrell admitted that he had no knowledge of the reliability of his informant. The facts of our ease are analogous to People v. Thymiakas, 140 Cal.App.2d 940 [ 296 P.2d 4 ], in which a claim of unlawful search and seizure was upheld. We deem that case to be controlling. In Thymiakas, the arresting officers had received information from an unknown informant that the defendant was a user of heroin and had a quantity of heroin in his apartment; the officers went to the location, obtained a key from the manager and turned the key in the lock of the defendant’s door which opened slightly, catching on a nightehain; the officers banged on the door and demanded entry; the defendant said “Wait a minute” and the officers heard footsteps approaching then retreating from the door; in reply to another demand for entry defendant again said “Wait a minute” and the officers broke into the apartment; they discovered capsules of heroin and narcotic paraphernalia. The court held that the arrest of Thymiakas and the search of the apartment were made without probable cause and the court affirmed an order dismissing the information under section 995 of the Penal Code.

The judgment is reversed.

Vallée, J., and Ford, J., concurred.