People v. Grubb

Defendant appeals from a judgment of conviction, after jury trial, of violation of section 12021 of the Penal Code, possession of a eoneealahle weapon by a convicted felon. The sole question presented in this appeal is whether the weapon which was admitted into evidence over defendant’s objection, and which was the basis for his conviction, was the product of an illegal search. The pertinent facts leading to this search are substantially as follows.

In January 1965 Lieutenant Crow of the El Dorado County sheriff’s office received information from an informer by the name of John Reed that he (Reed) had personally observed marijuana being used in defendant’s apartment which was located over his place of business, the Witch Doctor Beauty Salon. Reed also informed Officer Crow that one Donald Powers, who had a prior narcotics record, and who was residing with the defendant, possessed marijuana which he kept in the trunk of his ear. Upon receiving this information Officer Crow investigated defendant’s background and initiated a surveillance of his place of business which lasted approximately six months. The investigation revealed that defendant had a prior arrest record for possession of narcotics. The surveillance disclosed that Donald Powers, who also had a prior arrest record for illegal narcotic activities, frequented the

It is firmly established that a search which is made by a peace officer without a warrant is not per se unreasonable or in violation of a person’s rights as guaranteed by the Fourth Amendment to the United States Constitution. In fact, it is settled that a search without a warrant made in connection with a lawful arrest and as an incident thereto is proper, and that evidence abduced therefrom is not deemed inadmissible as the product of an unreasonable search (United States v. Rabinowitz, 339 U.S. 56 [ 94 L.Ed. 653 , 70 S.Ct. 430 ]; People v. Ingle, 53 Cal.2d 407 [ 348 P.2d 577 ] (cert. den. 364 U.S. 841 [ 5 L.Ed.2d 65 , 81 S.Ct. 79 )] ; and People v. Phillips, 240 Cal. App.2d 197 [ 49 Cal.Rptr. 480 ]). Under Penal Code section 836 an arrest is lawful without a warrant when a peace officer has reasonable cause to believe that the person arrested has committed a felony. Reasonable or probable cause exists when the facts and circumstances within the knowledge of the officers at the moment of arrest are sufficient to warrant a prudent man in believing that defendant has committed an offense (People v. Talley, 65 Cal.2d 830 [ 56 Cal.Rptr. 492 , 423 P.2d 564 ]). Thus, the first question is whether the officers who made the search of defendant’s place of residence had reasonable cause to believe that he had committed a felony, and therefore whether defendant’s arrest without a warrant was lawful.

We conclude that the answer to this question is in the affirmative. In fact, we conclude that the officers had ample justification to arrest the defendant without a warrant, and to search his apartment as an incident to his arrest. First, they were armed with information received from two separate informants, John Reed and James McCord. Reed, a reliable informant, had informed Officer Crow that defendant was involved in narcotics activities approximately six months earlier. Reed had been known to Crow since May of 1964 when he had been arrested on a fictitious check charge. Between May of 1964 and January 1965 he had given Crow several items of information which were apparently reliable, although they did not

Second, Officer Crow’s independent investigation of defendant’s background and the six months’ surveillance of his activities revealed that not only did he have a prior arrest record for possession of narcotics, but he was associating with two other persons with prior narcotics records, Howard Powers and Dale Powers. In fact, one of the known offenders (Dale Powers) had introduced defendant to James McCord ostensively for the purpose of enabling McCord to make a “score.”

Third, the officers were equipped with information received from two persons arrested the evening before as suspects in connection with illegal narcotics activities. These suspects, Dale Powers and Margo Howard, had informed the officers that narcotics would be found in defendant’s home. Although information received from an arrestee is not of itself sufficient to constitute probable cause, if it is corroborated by other facts, sources, or circumstances (as in the instant case), it is sufficient to justify reliance thereon (People v. Reeves, 61 Cal. 2d 268 [ 38 Cal.Rptr. 1 , 391 P.2d 393 ]).

Having determined that the officers had probable cause to arrest the defendant without a warrant when they entered his residence in the early morning hours of August 24, we must now consider whether the fact that they evidently had time to and did first procure a warrant which turned out to be void, so tainted the resulting search as to render the evidence abduced therefrom inadmissible as the product of an unlawful search. In considering this question, however, we are mindful that we are not here concerned with an unannounced force-able entry, but rather we are concerned with a situation where (according to the evidence) the officers acted in good faith after an abundance of caution.

Defendant argues that since no great emergency existed the officers were required to obtain a warrant, even if they had reasonable or probable cause to believe that defendant had

We do not agree with defendant's contention. In the first place, we do not necessarily agree with his assumption that no great emergency existed in this case, and that the officers were required to get a warrant before searching his residence. Time is almost always of the essence when narcotics are involved, for convictions are seldom obtained without evidence that a defendant had narcotics in his possession or under his control when the arrest was made. Furthermore, the officers had arrested Dale Powers and Margo Howard shortly before the search of defendant’s residence was made. These persons had been associating with the defendant on the very day of their arrest, and from this and the information received from James McCord the officers Avere entitled to believe that the three suspects were involved in the same narcotics activities. Consequently, the officers could reasonably assume that if the news of their arrest reached the defendant he would dispose of any incriminating evidence which he had in his possession. Hence, the officers would have been entitled to act promptly Avithout the necessity of procuring a warrant. Furthermore, when a search is made as an incident to a lawful arrest the controlling factor is not necessarily whether there was time to get a warrant, but rather it is whether the arrest itself was lawful. As stated by the United States Supreme Court in United States v. Rabinowitz, 339 U.S. 56 , 65-66 [ 94 L.Ed. 653 , 660, 70 S.Ct. 430 , 435] : “It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it is practicable for the officers to procure one. The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. It is not disputed that there may be reasonable searches, incident to an arrest, without a search Avarrant. Upon acceptance of this established rule that some authority to search follows from lawfully taking the person into custody, it becomes apparent that such searches turn upon the reasonableness under all the circumstances and not upon the practicability of procuring a search warrant, for the warrant is not required. To the extent that Trupiano v. United States, 334 U.S. 699 [ 92 L.Ed. 1663 , 68 S.Ct. 1229 ], requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled. The

When viewed in its true light, defendant’s contention is merely an assertion that since the officers took the trouble to seek a warrant they are now entrapped by their own caution and can no longer demonstrate that his arrest would have been lawful in the first instance without a warrant. We conclude to the contrary. In fact, we conclude that the prosecution properly and successfully justified the search as lawful without relying on the void warrant. In short, it is our decision that a search made pursuant to a void warrant is not rendered unlawful, nor is the evidence abduced therefrom tainted with illegality if, as in this case, the officers who procured the warrant and made the search (1) had sufficient facts to justify the issuance of a warrant when the warrant was procured, (2) had probable cause to arrest the defendant when the search was made, and (3) were acting in good faith and the warrant was void because of inadvertent failure to comply with the technical requirements of the statute under which the warrant was issued. A contrary holding would turn law enforcement into a monstrous chess game in which the slightest tactical error by law enforcement officers could be fatal to the successful prosecution of a person accused of a heinous offense even though the intent, purposes and spirit of the Constitution had not been violated.

A somewhat analogous situation arose in the case of Giordenello v. United States, 357 U.S. 480 [ 2 L.Ed.2d 1503 , 78 S.Ct. 1245 ]. In that case the warrant was void because the complaint upon which it was issued was defective in not providing a sufficient basis upon which a finding of probable cause could be made. On appeal the government for the first time attempted to justify the arrest apart from the warrant as an arrest based on probable cause under Texas law. The Supreme Court rejected this argument because in the lower court

Defendant contends that in any event the search of his home cannot be justified as an incident to a lawful arrest because the arrest was not made until after the gun was discovered and Officer Crow admitted that he would not have arrested defendant on a narcotics charge unless narcotics had been found in his house. Thus, he concludes that from this it is evident that the officers went to his residence primarily to make a search and to arrest him only if the search revealed incriminating narcotics.

This contention that the search could not be justified as an incident to a lawful arrest is also without merit. There is substantial evidence to support the trial court’s finding that the officers believed that the defendant had actually committed a felony when they went to his residence with the void warrant, and that they intended to arrest him. In other words, there was sufficient evidence to justify finding that the purpose of the officers’ visit to defendant’s home on the morning of August 24 was to make an arrest and not to make an exploratory search. Moreover, Officer Crow’s negative answer to the question, "Would you have arrested Mr. Grubb had you found no narcotics in the house?” was adequately explained by his remaining testimony, "I felt with what information I had on Mr. Grubb that I could have arrested him. However, I felt with no physical evidence we would not obtain a criminal complaint or a conviction upon said complaint. I wanted physical evidence in conjunction with the arrest.” Finally, the fact that the search was made before the arrest is not critical where, as here, the defendant’s arrest and not the search was the real object for the officers entering his home. As the Supreme Court stated in People v. Hammond, 54 Cal. 2d 846 , 853 [ 9 Cal.Rptr. 233 , 357 P.2d 289 ] : "A search which is made as an incident to a lawful arrest, based on reasonable cause to believe that the person arrested has committed a felony, is a lawful search even though made without a warrant [citations], and even though it occurs before rather than after the arrest. [Citations.] And as the court held in People v. Koelzer, 222 Cal.App.2d 20 , 29 [ 34 Cal.Rptr. 718 ], for the evidence to be admissible it must simply be: “. . . the prod-

The ease of People v. Haven, 59 Cal.2d 713 [ 31 Cal.Rptr. 47 , 381 P.2d 927 ], is clearly distinguishable. In that case the defendant was confronted by the officers in the home of his mother-in-law. The officers did not have a search warrant but defendant produced narcotics equipment of his own accord. The officers, however, purposely delayed his arrest so that they could search his hotel room where narcotics were ultimately discovered. Thus, in that ease the officers obviously went to defendant’s hotel room to search it and not to arrest the defendant.

The judgment is affirmed.

Conley, P. J., and Stone, J., concurred.