People v. Layne

— Defendant was charged with the offenses of possession of marijuana and of heroin, i.e., violations, respectively, of sections 11530 and 11500 of the Health and

Three principal issues are presented by the appeal, viz, whether (1) the court erred in denying defendant’s motion to suppress evidence obtained under a search warrant; (2) admission of incriminating statements contrary to the exclusionary rule announced in People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ] requires reversal; and (3) the court erred in commenting upon the defendant’s failure to testify.

Police officers entered a residence at 4182 Marlborough Avenue in the City of San Diego pursuant to a search warrant authorizing a search thereof, and of the person of the codefendant, for the unlawful possession of marijuana and paraphernalia for the use of marijuana. As one of the officers entered the premises he detected the odor of burning marijuana; after entry saw the defendant; engaged the latter in conversation; noted that his speech was slurred, his actions were slow and deliberate and the pupils of his eyes were dilated; questioned the defendant further about the use of narcotics; and accompanied the defendant to his bedroom where the officers noted a strong odor of marijuana smoke. While in the bedroom the defendant fumbled in his right front pocket, purportedly attempting to produce a prescription about which the officer previously had asked him; produced the prescription and immediately placed something back into his pocket; was asked by the officer what he was attempting to hide; and made no reply or movement to show what he had placed in his pocket. Thereupon the officer arrested the defendant for being under the influence of marijuana; searched the pocket in question; and removed two hand-rolled marijuana cigarettes. Upon a further search of the premises the officers discovered heroin and the paraphernalia adapted to its use.

The defendant claims that the search warrant pursuant to which the officers entered the premises was issued without probable cause; for this reason did not authorize the entry; and, as a consequence, the subsequent search and seizure were illegal. Issuance of the warrant was based upon an affidavit of the police officer wherein it was stated that in May 1963, Foster, the codefendant, had committed the offense of unlaw

At the trial, as well as at the preliminary hearing, the defendant moved to exclude the evidence obtained under the search warrant; was granted a hearing thereon; and produced witnesses contradicting some of the allegations contained in the affidavit which was the basis for issuance of the warrant. In each instance the motion was denied. The testimony of the witnesses produced by the defendant created merely a conflict with the evidence produced by the affidavit, which was resolved against his contention. The allegations in the affidavit supported issuance of the warrant under the rules stated and applied in People v. Prieto, 191 Cal.App.2d 62 , 68, 70 [ 12 Cal.Rptr. 577 ] ; People v. Williams, 175 Cal.App.2d 774 , 775-776 [ 1 Cal.Rptr. 44 ] ; People v. Nelson, 171 Cal.App.2d 356 , 360 [ 340 P.2d 718 ] ; People v. Bates, 163 Cal.App.2d 847 , 852 [ 330 P.2d 102 ] ; Arata v. Superior Court, 153 Cal.App.2d 767 , 771-772 [ 315 P.2d 473 ] ; People v. Acosta, 142 Cal.App.2d 59 , 62-64 [ 298 P.2d 29 ].) Although the warrant under which the officers acted authorized only a search for marijuana, their seizure of heroin discovered in the course of that search was proper and the evidence thus produced was not illegally obtained. (People v. Ortiz, 147

During the hearing on the motions to exclude evidence obtained by virtue of the search warrant, the defendant sought disclosure of the identity of the informer referred to in the officer’s affidavit. Disclosure was refused. Thereupon he urged that the information given by the informer be excluded in determining the sufficiency of the affidavit to support issuance of the warrant. This request was denied. These orders were proper under the settled rule that “where a search is made pursuant to a warrant valid on its face, the prosecution is not required to reveal the identity of the informer in order to establish the legality of the search and the admissibility of the evidence obtained as a result of it.” (People v. Keener, 55 Cal.2d 714 , 723 [ 12 Cal.Rptr. 859 , 361 P.2d 587 ].) There was no showing from which it might be concluded that disclosure would be “ ‘relevant and helpful to the defense of the accused, or essential to a fair determination of’ ” the cause. (People v. McShann, 50 Cal.2d 802 , 807 [ 330 P.2d 33 ].) The informer was not a participant in the offense with which the defendant was charged nor a witness to any material fact relating to that offense. His information concerned an offense by the codefendant occurring two weeks before the defendant’s arrest. (Cf. People v. Mora, 232 Cal.App.2d 400 , 404 [ 42 Cal.Rptr. 725 ].) Under these circumstances, disclosure of the informant’s identity was a matter within the discretion, respectively, of the magistrate or the trial judge, and his refusal to require disclosure, absent a showing of abuse of that discretion, will not be interferred with by a reviewing court. (People v. Keener, supra, 55 Cal.2d 714 , 720-724 ; People v. Williams, 175 Cal.App.2d 774 , 776 [ 1 Cal.Rptr. 44 ] ; see also People v. Perez, 62 Cal.2d 769 [ 44 Cal.Rptr. 326 , 401 P.2d 934 ].)

The orders of the trial court denying the motions to suppress the evidence obtained upon a search of the premises and the defendant's person and to require disclosure, properly were denied.

The prosecution introduced evidence in support of their position that, before service of the search warrant, the officers were in possession of information in addition to that contained in the affidavit which constituted probable cause for search of the subject premises. However, in view of our conclusion that the order of the trial court upholding issuance of the warrant was not error, there is no need to consider the sufficiency of this evidence to establish probable cause independent of that shown to support issuance of the warrant.

After his arrest the defendant was placed in jail. While in custody he was interrogated by a police officer and in the course thereof made incriminating statements concerning his use of marijuana and heroin; his knowledge of the narcotic substance thereof; and his purchase and possession of the seized marijuana and heroin. Noteworthy is the defendant’s admission he had purchased the heroin, because such admission precluded any contention that it belonged to his eodefendant; that it was not under his, the defendant’s, control and dominion; and that he had no knowledge of its presence. The record does not show that, preliminary to such interrogation, he was advised of his rights to counsel and to remain silent, nor is there any evidence from which it may be concluded that he waived these rights. The statements made establish without equivocation the elements of the offenses with which he was charged, i.e., the existence of dominion and control over the contraband, knowledge of its presence, and knowledge of its narcotic character. (People v. Groom, 60 Cal.2d 694 , 696 [ 36 Cal.Rptr. 327 , 388 P.2d 359 ].) Admission into evidence of these statements was error and, under the circumstances of this case, requires a reversal. (People v.