People v. Tellez

Opinion

Appellants were charged with possession of heroin. Following denial of their joint motion to suppress evidence pursuant to

By this appeal, each appellant contends that the trial court erred in refusing to suppress the challenged evidence.

The following evidence was introduced at the hearing on the 1538.5 motion: Officer John Peters testified that he received an anonymous telephone call on July 12, 1979, informing him that appellant Tellez was selling heroin from his home. Tellez was well known to Officer Peters, and a stakeout was conducted the same day at Tellez’ home address. That afternoon, appellant Vasquez arrived at Tellez’ residence in a car driven by an unidentified female. Vasquez went into Tellez’ house, remained five to ten minutes, then left in the same car. Officer Peters and Officer Applegarth followed him in separate unmarked vehicles. They followed the car onto the freeway where it traveled at erratic speeds from 15 to 30 miles per hour and then onto an offramp where it came to a stop. The officers had intended to stop the vehicle for erratic driving, but they had no lights with which to effect the stop. It became unnecessary since the car stopped voluntarily.

The officers stopped behind the Vasquez car and quickly approached the passenger side. They observed Vasquez tearing open a pink balloon and throwing white powder out of the window; then he put the balloon in his mouth and attempted to swallow it while trying to knock the white powder off the door onto which it had adhered. Both officers, who were qualified narcotics experts, recognized the powder on the car as resembling heroin.

Vasquez and the female driver were both arrested. The female told the officers that Vasquez had scored some heroin for both of them at his connection, but she did not know the connection’s name. Officer Applegarth testified that two weeks earlier a reliable tested informant told him that, although he had not been able to purchase heroin from Tellez, others had taken him to that home and had gone in and purchased heroin for him, which they said they bought from Tellez.

Officer Applegarth then telephoned Tellez’ parole officer, who informed him that Tellez was still on active parole and that a condition of his parole release was that he submit his person, property, and residence to a search and seizure at any time by any police officer.

Appellant Vasquez’ contention that the trial court improperly denied his suppression motion warrants only brief discussion. There is no merit to his argument that his automobile was unreasonably detained. It was not detained. The officers saw in plain view contraband which appellant was trying desperately to destroy or conceal. There was adequate probable cause to justify the seizure of the heroin and the arrest of Vasquez.

Appellant Tellez contends that the search of his residence could not be justified on the basis of parole conditions, since he was not in fact on parole at the time of the search. The confusion over appellant’s parole status arises from the following set of facts: Appellant was previously granted parole on May 28, 1978, for a period of one year. Thus, his parole status was scheduled to terminate on May 27, 1979. During the one-year-parole period, Senate Bill 1057 was enacted on January 1, 1979. That bill, amending Penal Code section 3000, extended the parole period to five years for persons sentenced to life in prison and three years for all other persons. As a result of that legislation, the parole board automatically extended parole periods for all persons then serving on parole. Appellant’s records were adjusted to reflect that he would remain on parole until May 27, 1982, an additional two years after his previously established termination date.

The offense with which we are concerned occurred on July 12, 1979. Had his parole terminated in May 1979, no search and seizure condi

This fact, however, does not compel suppression of the evidence recovered in the search conducted by the officers. It is uncontradicted that the officers were informed by appellant’s parole officer and appellant, that he was in fact on parole. Their reliance on this information was reasonable and they acted thereon in good faith. As we previously stated in People v. Spratt (1980) 104 Cal.App.3d 562 , 567 [ 164 Cal.Rptr. 78 ]: “The test of legality of a search is that of reasonableness and the court must look to all of the circumstances known to the officers prior to implementing the search. [Citation.]”

It is clear that a good faith mistake of law will not justify an unlawful search or seizure. (See People v. Teresinski (1982) 30 Cal.3d 822 , 831, fn. 6 [ 180 Cal.Rptr. 617 , 640 P.2d 753 ].) However, California courts have recognized that a reasonable mistake of fact, entertained in good faith by arresting officers, will authorize a search or arrest, even if the facts subsequently prove to be mistaken. As the California Supreme Court pointed out in People v. Hill (1968) 69 Cal.2d 550 , 553-554, at footnote 4 [ 72 Cal.Rptr. 641 , 446 P.2d 521 ], an arrest is valid if an officer has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a falony has in fact been committed. (Pen. Code, § 836, subd. 3.) In Hill, the police had probable cause to arrest Hill, but mistakenly arrested Miller. The court found that the officers honestly and reasonably believed that the man arrested was Hill; such reasonable belief validated the arrest. “The purpose of the exclusionary rule is to deter unlawful police conduct.” (Lockridge v. Superior Court (1970) 3 Cal.3d 166 , 171 [ 89 Cal.Rptr. 731 , 474 P.2d 683 ].) “We do not see how that purpose would be advanced by ex post facto condemnation of an arrest, apparently valid when made. The Constitution does not demand judicial overkill.” (People v. Carnesi (1971) 16 Cal.App.3d 863 , 868-869 [ 94 Cal.Rptr. 555 ].)

Therefore, the lower court properly denied appellant’s motion to suppress evidence.

The judgments are affirmed.

Files, P. J., and McClosky, J., concurred.

On March 19, 1982, the opinion was modified to read as printed above. The petition of appellant Tellez for a hearing by the Supreme Court was denied April 21, 1982.