People v. Sanchez

Defendant, charged with possession of heroin for sale (§ 11500.5, Health & Saf. Code), was found guilty of a lesser but necessarily included offense, possession of heroin (§ 11500, Health & Saf. Code). He appeals from the judgment.

Federal Narcotic Agents Borquez and Restow had information that the intersection of Brooklyn and Breed in Los Angeles was a “hot” corner and a “hangout for a lot of people using narcotics”; in the vicinity is a pedestrian tunnel running beneath Brooklyn with entrances north and south. Several months before August 20, 1965, defendant had been pointed out to Borquez as a dope peddler; about a week before, the agent saw defendant go into the tunnel two or three times with different persons, remain a few minutes and come out the same side he had entered-—-he did not go through the tumi el. On August 20, around 4:45 p.m., the agents saw de

Defendant testified that he entered the tunnel to cool off and eat his watermelon; the other man was not a narcotic addict and they were just talking. He admitted he was under the addiction of heroin and that the heroin in his possession was for Ms own use and not for sale and that he used 7 to 8 grams a day, amounting to between 70 and 80 caps. He denied being down in the tunnel prior to that occasion.

Appellant’s main contention, that the arrest, search and seizure were unlawful, is predicated on the theory that “the confinement” in which he was placed by the officers approaching Mm from either end of the tunnel constituted the arrest and that it was without probable cause.

There is nothing improper about an officer stopping a motorist or a pedestrian on the streets or in public places for questioning when to a reasonable person such a course of conduct appears necessary to the discharge of his duty (People v. McGlory, 226 Cal.App.2d 762 , 765 [ 38 Cal.Rptr. 373 ]; People v. Alcala, 204 Cal.App.2d 15 , 20 [ 22 Cal.Rptr. 31 ]; People v. Martin, 46 Cal.2d 106 , 108 [ 293 P.2d 52 ] ; People v. Blodgett, 46 Cal.2d 114 , 117 [ 293 P.2d 57 ] ; People v. Michael, 45 Cal.2d

The agents had information that defendant was a dope peddler, at a prior time they had observed defendant’s suspicious activities in connection with the tunnel, they knew the nature of the area, from defendant’s appearance and conduct they were of the opinion that defendant was a narcotic user, and they had just watched his unusual activities in connection with the tunnel; thus, as reasonable persons, the agents were warranted in their decision to enter the tunnel for the purpose of investigating defendant’s suspicious conduct and talking to him to find out what he was doing. They had the right to walk up to him in a public place in the manner in which they did, exhibit their badges and identify themselves. Temporary detention for questioning is proper (People v. Mickelson, 59 Cal.2d 448 , 452 [ 30 Cal.Rptr. 18 , 380 P.2d 658 ]), and whether it was reasonable for that purpose is a question of fact for the trial court. (People v. One 1960 Cadillac Coupe, 62 Cal.2d 92 , 95-96 [ 41 Cal.Rptr. 290 , 396 P.2d 706 ]; People v. Alcala, 204 Cal.App.2d 15 , 20 [ 22 Cal.Rptr. 31 ].) The trial judge's finding that there was reasonable cause for detention and questioning is substantially supported by the record.

When Borquez identified himself, he saw defendant move quickly—plunge the spoon into the watermelon and reach into his pocket. As defendant started to pull his hand out of his pocket, the agent, believing he might be “going for a gun,” grabbed him around the wrist. This warranted the agent in taking precautionary measures to assure his own safety and seize the hand in which he had reason to believe might be a concealed weapon (People v. Martin, 46 Cal.2d 106 , 108 [ 293 P.2d 52 ]; People v. Blodgett, 46 Cal.2d 114 , 117 [ 293 P.2d 57 ] ; People v. McGlory, 226 Cal.App.2d 762 , 765 [ 38 Cal.Rptr. 373 ]; People v. Cove, 228 Cal.App.2d 466 , 469 [ 39 Cal.Rptr. 535 ] ; People v. Alvarado, 250 Cal.App.2d 584 , 589 [ 58 Cal.Rptr. 822 ] ; People v. Garrett, 238 Cal. App.2d 324 , 327 [47 Cal.Bptr. 731]; People v. Martines, 228 Cal.App.2d 245 , 247 [ 39 Cal.Rptr. 526 ]) even though defendant’s hand yielded a box instead of a gun. The right to investigate gives rise to the right to conduct a reasonable search for weapons (the same revealed the gun, an automatic pistol, in his belt) or pursue a course of action necessary to assure

Finally, appellant argues that the evidence obtained by the federal agents would not have been permissible in a federal prosecution, thus it should not have been received in a state court. The argument is based on his claim that the agents acted on information supplied by unreliable informants, suspicion and conjecture and without probable cause, and that the heroin was seized as a result of their unlawful activity. While provisions of the Fourth Amendment to the United States Constitution apply to the states through the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643 [ 6 L.Ed. 2d 1081 , 81 S.Ct. 1684 , 84 A.L.R.2d 933 ]), it is clear from the evidence here that even though the federal agents had no warrant they properly arrested defendant having observed him in the act of committing, and having reasonable cause to believe him to have committed, a felony. “Reasonable grounds” under the federal law is synonymous with “probable cause” in California law. (Ker v. California, 374 U.S. 23 [ 10 L.Ed.2d 726 , 83 S.Ct. 1623 ]; Teasley v. United States, 292 F.2d 460 , 465; Redmon v. United States, 355 F.2d 407 . 411.) Further, until the agents seized defendant’s hand and found the box, they had only the intention of conducting a routine inquiry; defendant was not arrested until after the box was discovered and the agent observed defendant sweating and “high.” For federal purposes, the question when the arrest took place is governed by California law. (United States v. Di Re, 332 U.S. 581 , 589 [ 92 L.Ed. 210 , 217, 68 S.Ct. 222 ].)

The judgment is affirmed.

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

A petition for a rehearing was denied January 4, 1968.