People v. Ker

Defendants were charged with possession of marijuana in violation of section 11530, Health & Safety Code. A motion for dismissal under section 995, Penal Code, was denied; the following was offered on the issue of probable cause. Sergeant Cook, negotiating for the purchase of marijuana arranged to meet one Terrhagen around 7 p. m. on July 26,1960. Terrhagen picked up Cook in his car and drove to a bowling alley which he entered; he returned in a few minutes and told Cook they were to meet the “connection” by the oil fields near Slauson and Fairfax Avenues; Terrhagen then pointed out a parked 1946 DeSoto as the “connection’s” car. They drove to Slauson and Fairfax where Cook again saw the 1946 DeSoto; Terrhagen told Cook the “connection” had his supply of narcotics somewhere in the hills. They parked in the vicinity near some vacant fields; the DeSoto proceeding ahead of them made a U-turn and pulled alongside. Cook identified the driver as Roland Murphy, whom he knew from “mug” photographs and police information to be a large-scale seller of marijuana then out on bail on two

During all this time, Sergeant Warthen had Murphy under surveillance and observed the transaction with Cook; he also thereafter received from Cook direct information concerning it. The next day, July 27, 1960, Sergeant Warthen and Deputy Markman again took up surveillance of Murphy, starting at Murphy’s home, following him in his 1946 DeSoto to the same bowling alley. He remained there 10 minutes, returned to the DeSoto and drove off; Sergeant Warthen tried to follow but lost him; Warthen then drove to the Slauson-Fairfax location where he had staked out the evening before and observed Cook, Murphy and Terrhagen. Seated in his car with the lights off, parked near some vacant fields a short distance away, they saw defendant Ker, whom they did not then know. They were not then interested in Ker; their prime interest was Murphy whom they suspected to be a large-scale marijuana seller and of whom they were conducting a narcotics investigation. Soon Murphy drove past in his DeSoto north on Fairfax; they tried to follow but lost him when he turned off his lights upon entering the oil fields. Shortly thereafter, Murphy returned, stopped behind Ker’s automobile, got out, walked over to his car and appeared to talk to Ker. It was then between 8 and 9 p.m. Sergeant Warthen was about 1,000 feet away and observed them through glasses; soon Ker drove away. ■ Sergeant Warthen followed but lost him when he made a U-turn in the middle of the block; however he obtained the license number of the car and a check disclosed it was registered to Douglas Ker at 4801 Slauson. Fifteen minutes later, Sergeant Warthen communicated the foregoing to Deputy Berman.

Since November 1959, Deputy Berman knew Ker as a narcotic suspect; he had received bits of information regarding him from “various persons”; he had been told Ker was selling marijuana from his home and he was possibly securing it from Ronald Murphy, alias “Ronnie” Murphy; in early 1960, he received a “mug” picture of Ker from the Inglewood

Acting upon the foregoing information and that relayed to him by Sergeants Cook and Warthen as hereinabove described, on July 27 between 9 and 10 p. m., shortly after Warthen had observed Murphy and Ker; Berman, Warthen and Deputy Love went to an apartment house at 4801 West Slauson Avenue; they first determined that Ker’s ear was parked behind the apartment house, ascertained that defendants lived in apartment 29 and were home, obtained a key from the manager so they would not have to break the door down, unlocked the door quietly so defendants would not hear their approach and attempt to destroy the evidence, and entered. The apartment had a kitchen, living room, bedroom and bathroom. Ker was seated in the living room; they identified themselves and told him they were conducting a narcotics investigation; simultaneously therewith, Ker’s wife, Diane, walked from the kitchen into the living room; Berman identified himself to her and immediately walked to the kitchen door without entering; standing in the doorway Berman observed a small scale on top of the sink—on the scale was a brown paper package containing a 2-2/10-pound brick of marijuana (Exhibit 1) ; near it was a knife.

Defendants called Robert J. Black, presently serving time in Mira Loma, as their witness. He testified he had known them four and a half years but denied knowing anything connecting them with the narcotic traffic, and denied he ever made statements to that effect to Berman or any other police officer; he admitted having met Deputy Berman at the bowling alley.

The motion denied, the matter was tried before a jury. Evidence of Sergeant Warthen’s surveillance of Murphy and Ker, and Berman’s entry on the premises was presented to the jury. Continuing with his testimony, Deputy Berman, after walking

In his defense, Ker testified that he and his wife left the apartment at 7:30 p. m. to look for a new apartment, and returned at 10 p. m.; that before leaving he received a call from an unknown person and that a kitchen window had been tampered with in their absence. He denied prior knowledge or possession of the 2-pound brick of marijuana (Exhibit 1) ; admitted ownership of the box (Exhibit 2) but denied the marijuana in it was his; denied having met anyone during the period between 7:30 and 10 p. m., except Beswick whom they had visited; and admitted he knew Murphy but denied any rendezvous with him. Mrs. Ker corroborated her husband and denied prior knowledge of the marijuana (Exhibit 3) found in her automobile. Mr. Ker’s father and mother and Mrs. Ker’s mother corroborated defendants’ testimony relative to the “suspicious circumstances” of the telephone call and the tampered kitchen window. Beswick testified defendants visited him that night in his apartment. The theory of

On rebuttal, Sergeant Keith of the Glendale Police Department testified to a conversation with Ker in 1957, wherein the latter told him he had smoked marijuana several times but got “no kick out of it”; that Ker saw marijuana, which was identified as such, at that time.

Inasmuch as the officers had no warrant, for the arrest of defendants to be valid the former must then have had reasonable cause to believe they had committed a felony. (Pen. Code, § 836, subd. 3; People v. Bracamonte, 194 Cal.App.2d 167 [ 15 Cal.Rptr. 54 ].) There being no formula for its determination, what constitutes “reasonable cause” depends upon the facts and circumstances of each case (People v. Ingle, 53 Cal.2d 407 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ]; People v. Wickliff, 144 Cal.App.2d 207 [ 300 P.2d 749 ]; People v. Hollins, 173 Cal.App.2d 88 [ 343 P.2d 174 ])—the situation presented or apparent to the officers at the time they were required to act. (People v. Evans, 175 Cal.App.2d 274 [ 345 P.2d 947 ]; People v. Hollins, 173 Cal.App.2d 88 [ 343 P.2d 174 ]; People v. Silvestri, 150 Cal.App.2d 114 [ 309 P.2d 871 ]; People v. Carella, 191 Cal.App.2d 115 [ 12 Cal.Rptr. 446 ] ; People v. Kilvington, 104 Cal. 86 [ 37 P. 799 , 43 Am.St. Rep. 73 ]; People v. Murphy, 173 Cal.App.2d 367 [ 343 P.2d 273 ].) The weight to be accorded the information possessed by the officers at the time they made the arrest is for the trial court in the exercise of its sound discretion. (People v. Fisher, 184 Cal.App.2d 308 [ 7 Cal.Rptr. 461 ]; People v. Taylor, 176 Cal.App.2d 46 [ 1 Cal.Rptr. 86 ]; People v. Arter, 169 Cal.App.2d 439 [ 337 P.2d 534 ]; Lorenzen v. Superior Court, 150 Cal.App.2d 506 [ 310 P.2d 180 ].) “Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” (Bompensiero v. Superior Court, 44 Cal.2d 178 , 183 [ 281 P.2d 250 ]; People v. Fischer, 49 Cal.2d 442 [ 317 P.2d 967 ]; People v. Ingle, 53 Cal.2d 407 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ] ; People v. Kilvington, 104 Cal. 86 [ 37 P. 799 , 43 Am.St.Rep. 73 ].)

Deputy Berman, since November 1959, knew of Ker from “various persons, bits of information,” that Ker was possibly securing marijuana from Murphy and selling it from his residence; since early 1960, Berman knew what Ker looked like, and continued to receive “various bits of information”

While the distance between Sergeant Warthen and Ker at Slauson and Fairfax prevented him from observing anything change hands between Ker and Murphy or hearing their conversation, it is a reasonable inference from what had occurred just prior thereto, the past repute, furtive conduct and activities of both Murphy and Ker, that Ker in the same fashion as Cook the night before had received from Murphy delivery of the same kind of merchandise (marijuana) and that Ker was returning with it to his home. Substantial circumstantial evidence destroys any merit to appellant’s position that because the officers, by reason of distance and the time of night, observed nothing pass between Murphy and defendant, there existed no probable cause to believe he received marijuana and had it in his possession.

In People v. Tahtinen, 50 Cal.2d 127 [ 323 P.2d 442 ], the officers had prior information concerning the seller, Hernán

While Diane Ker had not before been suspect, the evidence discloses something more than her “mere presence at the scene of a crime” (A.O.B., p. 20). Deputy Berman knew from Black that Ker was selling marijuana at his residence; it could be assumed that if Ker was married, particularly in view of the size of the apartment in which they lived together, that his wife was not entirely without knowledge of his unlawful activities. But more important, her conduct when the officers entered the apartment and her admitted prior occupancy of the kitchen wherein the marijuana was in plain sight made it obvious to the officers, even before they started their search, that she too was in the process of committing a felony (possession of marijuana). When the officers walked into the living room, Diane walked from the kitchen where the marijuana lay on the scale in the middle of the drainboard; she said she had been sitting at the table drinking coffee and eating toast; the coffee pot was on the drainboard very near the scale and marijuana. This lends little credit to her statement that she did not look in that direction or lmow the contraband was there.

Appellants say that the officers violated section 844, Penal Code, in entering their apartment without first demanding admittance or explaining the purpose of their visit. Under circumstances such as those at bar, where police officers at a

Having had reasonable cause to believe Ker was in his apartment and had in his possession a substantial amount of marijuana, the officers believing he committed and was committing a felony, entered the premises for the purpose of arresting Ker. As they entered the living room and identified themselves, Mrs. Ker simultaneously walked from the kitchen to the living room at which time Deputy Berman walked several steps to the kitchen door without entering the kitchen. He saw in plain sight the marijuana on the scales. At this time no search had been made; Deputy Berman observed what was in plain view. (People v. Roberts, 182 Cal.App.2d 431 [ 6 Cal.Rptr. 161 ]; People v. Quinn, 194 Cal.App.2d 172 [ 14 Cal.Rptr. 814 ].) The search of the apartment did not take place until defendants had been arrested; a search incident to lawful arrest is not unlawful. (People v. Winston, 46 Cal.2d 151 [ 293 P.2d 40 ]; People v. Montano, 184 Cal.App.2d 199 [ 7 Cal.Rptr. 307 ]; People v. Quinn, 194 Cal.App.2d 172 [ 14 Cal.Rptr. 814 ].)

In the light of the implied findings of the trial court in

Deputy Berman disclosed the identity of Black, but as to any other informant, the trial court permitted him to invoke the privilege of nondisclosure (Code Civ. Proc., §1881, subd. 5). Thereafter, defendants made no motion to strike Berman’s testimony, although they had ample opportunity to do so—after the officer invoked the privilege and before the issue was submitted, colloquy took place between the court and counsel, defendants put on Black as their witness and the motion was argued. “A defendant cannot raise the problem of nondisclosure in the appellate courts when he . . . did not move to strike the testimony on a refusal to disclose. [Citations.]” (Priestly v. Superior Court, 50 Cal.2d 812 , 819 [ 330 P.2d 39 ].) Appellants argue they are excused from making the motion because it was then obvious from the trial court’s statement that it would not have been granted. But the record does not bear this out; it shows that the trial court did not make the statement which ‘ revealed its feeling about these informants” (A.O.B., p. 15) until long after the motion could and should have been made, and after the issue of probable cause had been submitted. It was only then the court stated: “I don’t think its upon the—incumbent to furnish the name of the informers and I don’t think it would have any real significance as far as their preparing the defense is concerned.”

Citing Priestly v. Superior Court, 50 Cal.2d 812 [ 330 P.2d 39 ], appellants say the trial judge should have required Berman to reveal the names of other informants; we find no error here. The record discloses that the so-called “informants” referred to by appellants actually are the “various persons” who between November 1959, and May 1960, gave Berman “various bits of information” that Ker was suspect as selling marijuana he secured from Murphy, out of his home. Even appellants concede “that the officer did not state he was relying upon the information given by others from November, 1959, to May, 1960, in making the search and arrest” (A.O.B., p. 18); and, Berman testified he relied upon the information relayed to him by Sergeants Warthen and Cook, a “mug” picture from the Inglewood

Appellants’ final contention goes to the sufficiency of the evidence to prove their dominion and control over the contraband and their knowledge of its presence and narcotic character. The ease presents a direct conflict in the evidence. Defendants would have the jury believe they knew nothing about marijuana, that found in the apartment did not belong to them, they did not know it was there and some one must have planted it in their absence that night; but the jury, disbelieving the defendants and their witnesses, as it had a right to do, rejected their defense. (People v. Stanciell, 121 Cal.App.2d 798 [ 264 P.2d 576 ].) Thus, viewing the evidence in the light most favorable to the respondent, we find numerous incriminating circumstances revealing that the de

We refer first to Ker. It is obvious that the officers had no intention of arresting Ker when they started their surveillance of Murphy on the evening of July 27; that it was Ker who met with Murphy was for the most part incidental to what the officers expected to find in an investigation of Murphy; and that no one knew in advance, must less the officers, that they would go to Ker’s apartment between 9 and 10 p. m. to arrest him. Ker’s association with Murphy only an hour before the former’s arrest, his furtive meeting with Murphy at night in a fairly deserted location where the night before Murphy had sold marijuana to Cook after a similar trip into the oil fields, and his conversation with Murphy in a parked ear without lights at the side of the road, constituted substantial circumstantial evidence that Ker then and there obtained marijuana from Murphy and thereafter had it in his possession; and this coupled with' the presence shortly thereafter of a 2-pound brick of marijuana in his kitchen resting on a scale (on which it obviously had been weighed after its purchase), can leave only one reasonable conclusion—that Ker secured the 2-pound brick from Murphy and took it home to weigh it before disposing of it. And finally, Ker definitely knew about marijuana before—he had admitted to officer Keith in 1957, in the presence of marijuana that had been identified as such, that he had smoked it; Ker had small amounts of marijuana in other places in his apartment—the officers found some in a box on the dresser in defendants’ only bedroom and in a sack in the kitchen cupboard; Ker made no denial of possession—he remained silent in the face of the officer’s questions in the apartment concerning to whom the marijuana belonged; Ker’s answer to Berman’s question assumed Ker knew the substance was marijuana and that it belonged to him—Berman after discovering the 2-pound brick in the kitchen, asked him if he had “any other narcotics” in the apartment and Ker answered “that he did not”; Ker’s lie to the officers when he denied that they owned any other vehicle than the one registered to him; and Ker’s doubtful story on the stand that the marijuana had been planted in his apartment. The circumstances pointing to Mrs. Ker’s guilty knowledge are as revealing. Two and two-tenths pounds of marijuana, which would make a large number of cigarettes (Berman testified that one ounce of marijuana yields from 40 to 60 cigarettes), obviously were not for the

On the issue of joint possession, the court in People v. Basco, 121 Cal.App.2d 794 [ 264 P.2d 88 ], stated, “A person may be so closely interested in and connected with the unlawful possession of narcotics by another as to furnish support for a finding that there was a joint possession” (p. 796); and to show “knowing possession the conduct of the parties, admissions or contradictory statements and explanations are frequently sufficient. [Citations.]” (People v. Foster, 115 Cal.App.2d 866 , 868 [ 253 P.2d 50 ]; People v. Stanciell, 121 Cal.App.2d 798 [ 264 P.2d 576 ].)

It is clear that the evidence and the reasonable inferences therefrom support the implied finding of the jury that both defendants had knowledge of and a joint dominion and control over the contraband found in their apartment and were thus guilty of possession. (People v. Bagley, 133 Cal.App.2d 481 [ 284 P.2d 36 ]; People v. Hood, 150 Cal.App.2d 197 [ 309 P.2d 856 ].)

For the foregoing reasons the judgment and order are affirmed.

Wood, P. J., and Fourt, J., concurred.

A petition for a rehearing was denied September 20, 1961, and appellants’ petition for a hearing by the Supreme Court was denied October 25, 1961.