People v. Burke

After a trial by jury, the defendant was convicted of violating section 11501 (transportation of heroin) and section 11531 (transportation of marijuana) of the Health and Safety Code. The jury also found the charges of two prior convictions of felonies contained in the indictment to be true. Defendant appeals from the judgment.

On February 6, 1960, Officer Robert Martin of the San Francisco Police Department’s narcotic bureau received information from one Mrs. Murray, the manager of the Malden Hotel in San Francisco, that one Nicolas Santos and a female, who had been registered and living in a room at the hotel since February 3, “had been receiving a large number of visitors, Caucasian, oriental, and that she was becoming a little alarmed due to the amount of traffic.” Mrs. Murray reported that some of the visitors were “unsavory characters” and, in addition, that on one occasion she overheard a telephone conversation between the occupant of the above room and an unknown male calling in to the hotel during which there was a discussion of “two cans for fifteen cents,” meaning in narcotics jargon, two Prince Albert cans of marijuana for 15 dollars.

Officer Martin and Officer Lawlor, also of the narcotic bureau, thereupon went to the hotel and in the company of Mrs. Murray went up to the room in question. Mrs. Murray

The officers then requested information from the Los Angeles Police Department which replied that it had no record of Nick Santos.

On the following Monday, February 8, the officers returned to the hotel and again gained entrance to the room with the assistance of the manager who told them that the occupants had not returned in the interim. In the room they found a business card with the name of a detective sergeant of the Los Angeles sheriff’s office and a phonograph record with the name “Linda Boss’’ on it. Upon inquiry, they were advised by the Los Angeles sheriff’s office that Linda Boss was in fact Linda Melby, age 17 and married; that in January she had been reported missing by her father; that she had left in the company of a Nicolas Santos but that her father had later heard she was staying at the Malden Hotel; that she had returned to Los Angeles; and that they had a file on a Nicolas Santos who lived in the Los Angeles area and was suspected of being involved in narcotic activities.

Officer Martin then contacted Mrs. Murray who advised him that the rent for the room was due on February 10 and agreed, on his request, to hold the room open. On Friday, February 12, she informed Martin of a long distance telephone call from Nicolas Santos, in which he told her that he and his wife would return to San Francisco on Saturday, February 13, and that he wanted her to keep the same room available for him. On Saturday morning Mrs. Murray telephoned Officer Martin stating that she had heard from Santos and that he and his wife were on the way to the hotel. Officers Martin and Lawlor thereupon went to the hotel where they were advised by the manager that the young lady in question had gotten out of an automobile driven by Santos and had gone up to the room.

The officers knocked on the door of the room and identified themselves. Linda Melby let them in. They told her they were conducting a narcotic investigation. She at first denied any knowledge of narcotics. Later she admitted that she had smoked marijuana and that her husband, Melby, had been arrested on a marijuana charge. She also said that between

Burke, alias Santos, had gone out to cash a check and the officers waited in the room for him. Officer Lawlor then went out to the police car to get a telephone listening device and while outside saw Burke, whom he recognized from previous descriptions, parking his car near the hotel. Officer Lawlor returned to the hotel and, after seeing the defendant enter, went back into the room to wait for him. Officer Martin left the room and waited in the hallway.

The defendant knocked on the door and Officer Lawlor opened it. At about the same time, Officer Martin came up behind the defendant and tapped him on the shoulder. The officers identified themselves. Martin and the defendant entered the room. Martin made a search of the defendant’s person and found an empirin compound bottle containing 22 capsules of heroin and an envelope containing seeds and other fragments of marijuana. The record is susceptible of a reasonable construction that the defendant was arrested inside the room. Martin questioned the defendant about the substance in the capsules and the defendant replied that it was sugar, that he had purchased both the capsules and the so-called “sugar” in Los Angeles, and that he had filled the capsules with the “sugar.” The defendant insisted the substance was sugar even after Martin in the defendant’s presence made a field test showing that it was heroin. At the same time, the defendant claimed that he did not know that the substance in the envelope was marijuana.

Burke was further interrogated on the way to, and upon arrival at, the city prison. He persisted in claiming that the white powder in the capsules was sugar and that he did not know the other substances were marijuana.

Lawlor then took the car keys which had also been found in the search, and made a search of the defendant’s automobile. In it he found a vial and a large jar, both with remnants of marijuana, and a pipe with marijuana in it.

At no time did the police officers have a warrant for the

At the trial, expert opinion evidence was introduced by the People establishing that the substances found in the above-mentioned containers were heroin, marijuana seeds and traces of marijuana. The various containers and their contents, uncovered by the search of the defendant’s person and automobile, were all admitted in evidence over defendant’s objections and after a hearing thereon before the court outside the presence of the jury.

The defendant testified at the trial that during the search of his person, the officer took all of his papers and receipts and “all of a sudden he had the [marijuana] envelope in his hand.’’ He admitted it could have been among the papers. He denied ever possessing heroin. He admitted going to the hotel across the street but denied it was to discuss a transaction involving marijuana. He admitted that he “transported those sugars ’ ’ from Los Angeles.

We are presented with three contentions on appeal: (1) that the contraband on the defendant’s person and in his automobile was discovered as the result of an illegal search; (2) that the defendant was not properly convicted of transporting narcotics; and (3) that the trial court denied defendant his right to compulsory process for the production of witnesses. We conclude that none of these contentions have merit.

The applicable rules of law are well settled. Reasonable cause to justify an arrest or search may consist of information received from others and is not limited to evidence that would be admissible at the trial on the issue of guilt. (People v. Boyles (1955) 45 Cal.2d 652 , 656 [ 290 P.2d 535 ] ; Willson v. Superior Court (1956) 46 Cal.2d 291 , 294 [ 294 P.2d 36 ] ; People v. Bates (1958) 163 Cal.App.2d 847 , 851 [ 330 P.2d 102 ].) In Willson v. Superior Court, supra, it was said: “Although information provided by an anonymous informer is relevant on the issue of reasonable cause, in the absence of some pressing emergency [citation], an arrest may not be based solely on such information [citations], and evidence must be presented to the court that would justify the conclusion that reliance on the information was reasonable. [Citation.] In some cases the identity of, or past experience

Mr. Justice Peters, speaking for this court in People v. Bates, supra, and People v. Diggs (1958) 161 Cal.App.2d 167 [ 326 P.2d 194 ], summarizes the applicable criteria. In Bates he states: “The test is, did the officer have reasonable cause to make the arrest—would a reasonable man, possessing the information possessed by the officer, reasonably believe that the person involved had committed a felony? This information may be, and usually is, evidence that would be hearsay on the issue of guilt. It may consist of information obtained from an informant known to the officer to be reliable and whom the officer in good faith believes to be trustworthy. (People v. Rixner, 157 Cal.App.2d 387 [ 321 P.2d 91 ], and cases there cited.) In most cases the informant must not only be known to the officer, but the officer must have had sufficient dealings with the informant to give him reasonable cause to believe that the informant is reliable and that the information given by him is truthful. It is only in the case of a pressing emergency that an arrest or search without warrants may be justified based upon information secured from an anonymous informant, or from an informant not known to the officer to be reliable. (Willson v. Superior Court, 46 Cal.2d 291 [ 294 P.2d 36 ].) ” (163 Cal.App.2d at p. 851.) In Diggs, the same author declares: “But if information is received from such an informant [not known to be reliable], and there are substantial corroborating facts known or discovered, the arrest and search are proper. [Citations.]” (161 Cal.App.2d at p. 171.)

We first determine whether, in the light of the above precepts, Officers Martin and Lawlor had reasonable cause on February 13 to arrest the defendant and to search his person and automobile. Initially our inquiry is independent of the legality of the searches of the defendant’s hotel room made by the same two officers on February 6 and 8. We then propose to consider what effect, if any, such police conduct had on the ultimate arrest.

Defendant claims that that portion of the information received from Mrs. Murray relating to the telephone call which she overheard must have been intercepted by her at the switchboard, since it was an incoming call, and, therefore, was obtained in violation of the Federal Communications Act ( 47 U.S.C.A. § 605 ) and also of section 640 of the Penal Code. The claim has no merit. First, the record before us does not show how Mrs. Murray overheard the call. It definitely does not show that she overheard the call at the switchboard. Secondly, as the defendant did not object to the admission of the evidence on the ground of his present contention but only on the ground of hearsay, “the merits of the contention were not before the trial court and are not before this court.” (People v. Rojas (1961) 55 Cal.2d 252 , 260 [ 10 Cal.Rptr. 465 , 358 P.2d 921 ].)

Since the defendant’s arrest was based on reasonable cause, a search of his person conducted as an incident to such lawful arrest was permissible. (People v. Hammond (1960) 54 Cal.2d 846 , 853 [ 9 Cal.Rptr. 233 , 357 P.2d 289 ] ; People v. Simon (1955) 45 Cal.2d 645 , 648 [ 290 P.2d 531 ] ; Willson v. Superior Court, supra, 46 Cal.2d 291 , 294.) The contemporaneous search of his automobile, known by the police to be outside, was also lawful as reasonably incident to the arrest. (People v. Daily (1958) 157 Cal.App.2d 649 , 653 [ 321 P.2d 469 ].)

Are we prevented from reaching the above conclusions and from upholding the trial court’s finding of reasonable cause by the conduct of the police in searching the defendant’s hotel room, without a warrant, on two occasions prior to his arrest? The defendant contends that we are. In particular, he argues that the police cannot “combine a series of illegal procedures” in order to justify the ultimate arrest, that the questioning of Linda Melby was the “fruit of these illegal procedures” and that had the police acted lawfully they would have had no occasion to question Linda and eventually to arrest the defendant. Implicit in this contention are three questions which we must consider: (1) Were the searches of

We conclude therefore that the entries into and searches of this defendant’s hotel room made on February 6 and 8 cannot be justified upon the grounds of the manager’s consent thereto.

Nor can they be justified, as we have already explained, upon the basis of reasonable cause. At the time of each search of the hotel room, the only information which the police possessed, had been obtained by them from Mrs. Murray, a person not known to be a reliable informant. . (See People v. Goodo, supra, 147 Cal.App.2d 7 .) There were no substantial corroborating facts known, or discovered. There was no pressing emergency. (See People v. Diggs, supra, 161 Cal.App.2d 167 .)

Clearly the searches made of the defendant’s hotel room on February 6 and 8 were unlawful. As a result, the police obtained the business card with the name of the Los Angeles sheriff’s officer which in turn led to information from the sheriff’s office about both Linda Melby and the defendant, including the report that the defendant was suspected of narcotics violations. But it cannot be said that the police would not have attempted to interview the defendant or Linda Melby if they had not received such information from the sheriff’s office. The original information from Mrs. Murray was certainly of a character to arouse their suspicions and it is a reasonable inference that even had the searches of the defendant’s room turned up nothing, the officers would still have returned to the hotel to interview the defendant or his companion. This, of course, they had a right, if not a duty, to do since “it is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes.” (People v. Michael, supra, 45 Cal.2d 751 , 754; People v. Martin (1955) 45 Cal.2d 755 , 761 [ 290 P.2d 855 ].) The officers, did return on February 13 and during their interview with Linda Melby obtained from her information which corroborated that furnished by the hotel manager and together with it constituted reasonable cause for the defendant’s arrest. The record does

We therefore hold that the previous illegal searches of the defendant’s hotel room did not infect the defendant’s subsequent arrest so as to render such arrest and the searches incidental to it also illegal.

The defendant next contends that the evidence is insufficient to support his conviction of transporting heroin (Health & Saf. Code, § 11501) or marijuana (Health & Saf. Code, § 11531). The implication of his argument is that evidence shows at the most possession of those two narcotics, an offense covered by other sections of the above code. (§§ 11500, 11530.) We disagree. The reasonable inferences from the evidence which we have summarized at the outset are that the defendant had driven to San Francisco from Los Angeles on February 13, the day of his arrest, and that during such trip he had in his possession both heroin and marijuana. Indeed, although insisting that the white substance in the capsules was “sugar” rather than heroin, he admitted buying both capsules and sugar in Los Angeles and that he “transported those sugars.” The evidence shows that the defendant had just arrived from Los Angeles, that he had not gone to his hotel room prior to his arrest and that in addition to the capsules of heroin, he had on his person an envelope containing fragments of marijuana and in his car a pipe with marijuana as well as two containers with remnants of marijuana. It is a reasonable inference that he had also transported the marijuana from Los Angeles.

According to the defendant, confusion of transportation and

The record discloses and indeed the defendant admits, that the trial judge at the beginning of his instructions, told the jury in clear and certain language that the defendant was charged with two crimes, one of transporting heroin and the other of transporting marijuana. He then told the jury that “ [i] t is unlawful for any person to have in his possession, conceal, transport, carry, convey, sell, furnish or administer or give away, or offer to conceal, transport, carry, convey, sell, furnish, administer or give away, or attempt to conceal, transport, carry, or convey a narcotic. ’ ’ Immediately following the definition of “narcotic” as used in the instructions, the judge instructed on what is meant by possession. The jury were then told that “the defendant, in addition to being charged with two counts of possession and transportation of a narcotic, is also charged with two prior convictions . . . [and] if you should find the defendant guilty of the offense for which he is on trial in this action, you must also find whether or not the allegation of the prior conviction is true.” (Emphasis added.) The defendant did not request more specific instructions on the subject of transportation.

“In determining what instructions a trial court is required to give without request, the rule is usually stated to be that the court has a duty to give instructions on the general principles of law governing the case, even though not requested by the parties, but it need not instruct on specific points developed at the trial unless requested. (People v. Warren, 16 Cal.2d 103 , 117 [ 104 P.2d 1024 ].)” (People v. Wade (1959) 53 Cal.2d 322 at p. 334 [ 1 Cal.Rptr. 683 , 348 P.2d 116 ].)

The trial judge expressly instructed the jury that the defendant was charged in the first count of the indictment with transporting heroin in violation of section 11501 of the Health and Safety Code and in the second count with transporting marijuana in violation of section 11531 of such code. His subsequent reference to such charge as being “two counts of possession and transportation,” though inaccurate did not

The court did not err in failing to instruct the jury what the word “transportation” meant since it is “well understood by all persons of average intelligence.” (People v. Bill (1934) 140 Cal.App. 389 , 397 [ 35 P.2d 645 ].) The defendant now seems to suggest .that not all movements of narcotics may amount to the interdicted transportation. If he desired specific .instructions because of a specific point developed on this subject, he should have requested them. “ [T]he trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly.” (People v. Wade, supra, 53 Cal.2d 322 , 334.) However, we feel that the instructions did not suffer from such claimed lack of specificity, since the jury merely had to determine whether, the defendant carried the narcotics from Los Angeles to San Francisco. This issue involved no nuances of movement. Nor do we feel that the jury were misled or confused by the references to possession of narcotics. They were clearly told that the charge was transportation of narcotics. Furthermore, references to possession were not entirely irrelevant since possession was a circumstance tending to show transportation.

Finally, defendant contends that the trial court improperly denied him his right to compulsory process for the production of witnesses. The • contention is directed to the production of Linda .Melby and Mrs.- Murray, the hotel manager.

Contrary to defendant’s contention, the record does not show that the defendant requested the issuance of compulsory process for Linda Melby. On cross-examination, the public defender'.interrogated Officer Lawlor as to what charges were made against.Linda Melby and what disposition was made of them, stating that “I’m trying to show they have no right to hold one man and dismiss another when two are arrested. ’ ’ The public defender then stated to the witness: “I. have a request from the defendant to bring this lady as a witness, . . .

At the close of the prosecution’s case in chief, the public defender stated to the court that during the noon recess he had talked to the defendant on the subject of the latter’s taking the stand, that the defendant had advised him that he was not going to testify, that the defendant wanted a witness and gave the name of Linda Melby, and that the public defender “explained to him that at this late date I couldn’t have" her subpoenaed as a witness. ...” At this point, no request was made of the court for the issuance of process or for.a continuance. The court therefore committed no error concerning the witness, Linda Melby.

The defendant took the stand and was the only witness for the defense. Just before doing so, he personally addressed the court, stating that “I put into the Public Defender’s office to have the landlord, the landlady, to appear as witnesses which have testified— no, they hadn’t testified, but they should have testified against me in the Grand Jury indictment with the officer making statements to what they said, and also I wanted to get some character witnesses, ...” The court denied the request. Immediately thereafter the public defender stated: “I might add in further answer to that, to the best of my information, that the landlady was interviewed, and of course her testimony would be unfavorable to the defendant, and if it were, there’s no sense of bringing her here. It’s our duty to investigate these things and we did in this case, Judge.”

The indictment was returned against the defendant on February 25, 1960. He then entered a plea of not guilty, waived a jury trial and submitted the matter on the transcript of the proceedings before the grand jury. He was found guilty by the court on both counts. Thereafter his motion for new trial was granted, and the judgment, finding of guilty and waiver of jury were set aside. His trial began on June 13, 1960, a jury was impaneled and the matter continued to June 15, 1960, at which time the taking of testimony commenced. Defendant’s request for process was not made until the trial was almost

Under the above circumstances, no error was committed by the court in denying the defendant’s request for the production of the witness Mrs. Murray, and, assuming that a request for the production of Linda Melby had been made to the court, in failing to issue process for her attendance. (People v. Hanz (1961) 190 Cal.App.2d 793 , 798 [ 12 Cal.Rptr. 282 ] ; People v. Ortiz (1961) 195 Cal.App.2d 112 , 117 [ 15 Cal.Rptr. 398 ].)

The judgment is affirmed.

Bray, P. J., and Molinari, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied November 28, 1962. Peters, J., was of the opinion that the petition should be granted.