195 Cal.App.2d 246, 7541, People v. Ker

Docket Nº:7541
Citation:195 Cal.App.2d 246, 15 Cal.Rptr. 767
Opinion Judge:[10] Lillie
Party Name:People v. Ker
Attorney:[7] Matthews and Stanley for Appellants. [8] Stanley Mosk, Attorney General, and George W. Kell, Deputy Attorney General, for Respondent.
Case Date:August 29, 1961
Court:California Court of Appeals

Page 246

195 Cal.App.2d 246

15 Cal.Rptr. 767

PEOPLE of the State of California, Plaintiff and Respondent,

v.

George D. KER and Diane K. Ker, Defendants and Appellants.

Cr. 7541.

California Court of Appeal, Second District, First Division

Aug. 29, 1961.

Rehearing Denied Sept. 20, 1961.

Hearing Denied Oct. 25, 1961.

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[Copyrighted Material Omitted]

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Matthews & Stanley, Los Angeles, for appellants.

Stanley Mosk, Atty. Gen., and George W. Kell, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

Defendants were charged with possession of marijuana in violation of Section 11530, Health & Safety Code. A motion for dismissal under Section 995, Penal Code, was denied; the following was offered on the issue of probable cause. Sergeant Cook, negotiating for the purchase of marijuana arranged to meet one Terrhagen around 7 p. m. on July 26, 1960. Terrhagen picked up Cook in his car and drove to a bowling alley which he entered; he returned in a few minutes and told Cook they were to meet the 'connection' by the oil fields near Slauson and Fairfax Avenues; Terrhagen then pointed out a parked 1946 DeSoto as the 'connection's' car. They drove to Slauson and Fairfax where Cook again saw the 1946 DeSoto; Terrhagen told Cook the 'connection' had his supply of narcotics somewhere in the hills. They parked in the vicinity near some vacant fields; the DeSoto proceeding ahead of them made a U-turn and pulled alongside. Cook identified the driver as Roland Murphy, whom he knew from 'mug' photographs and police information to be a large-scale seller of marijuana then out on bail on two

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narcotic offenses. Terrhagen entered the DeSoto leaving Cook in the car; they proceeded north on Fairfax over the hill and into the oil fields out of Cook's sight and returned fifteen minutes later. Murphy pulled up alongside the car in which Cook was waiting; Terrhagen entered carrying a kilo brick of marijuana. Murphy drove off northbound on Fairfax; Terrhagen drove home where he carved off of the kilo of marijuana a pound which Cook bought. Cook then relayed the foregoing information to Sergeant Warthen and Deputy Berman.

During all this time, Sergeant Warthen had Murphy under surveillance and observed the transaction with Cook; he also thereafter received from Cook direct information concerning it. The next day, July 27, 1960, Sergeant Warthen and Deputy Markman again took up surveillance of Murphy, starting at Murphy's home, following him in his 1946 DeSoto to the same bowling alley. He remained there ten minutes, returned to the DeSoto and drove off; Sergeant Warthen tried to follow but lost him; Warthen then drove to the Slausen-Fairfax location where he had staked out the evening before and observed Cook, Murphy and Terrhagen. Seated in his car with the lights off, parked near some vacant fields a short distance away, they saw defendant Ker, whom they did not then know. They were not then interested in Ker; their prime interest was Murphy whom they suspected to be a large-scale marijuana seller and of whom they were conducting a narcotics investigation. Soon Murphy drove past in his DeSoto north on Fairfax; they tried to follow but lost him when he turned off his lights upon entering the oil fields. Shortly thereafter, Murphy returned, stopped behind Ker's automobile, got out, walked over to his car and appeared to talk to Ker. It was then between 8 and 9 p. m. Sergeant Warthen was about 1,000 feet away and observed them through glasses; soon Ker drove away. Sergeant Warthen followed but lost him when he made a U-turn in the middle of the block; however he obtained the license number of the car and a check disclosed it was registered to Douglas Ker at 4801 Slauson. Fifteen minutes later, Sergeant Warthen communicated the foregoing to Deputy Berman.

Since November, 1959, Deputy Berman knew Ker as a narcotic suspect; he had received bits of information regarding him from 'various persons'; he had been told Ker was selling marijuana from his home and he was possibly securing it from Ronald Murphy, alias 'Ronnie' Murphy; in early 1960, he received a 'mug' picture of Ker from the Inglewood

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Police Department and until May, 1960, continued to receive various bits of information about him. Between May and July, 1960, Berman received information concerning Ker from one Black a previous informant whose information Berman had used in other cases on at least three occasions resulting in arrests of two on forgery and one on narcotics and whose information Berman believed to be reliable; Black also supplied information to Berman relative to Murphy which had aided officers in their investigation of Murphy resulting in a complaint in the Federal Court which was then pending. Black had told Berman that Ker and others had bought quantities of marijuana from Murphy.

Acting upon the foregoing information and that relayed to him by Sergeants Cook and Warthen as hereinabove described, on July 27 between 9 and 10 p. m., shortly after Warthen had observed Murphy and Ker; Berman, Warthen and Deputy Love went to an apartment house at 4801 West Slauson Avenue; they first determined that Ker's car was parked behind the apartment house, ascertained that defendants lived in apartment 29 and were home, obtained a key from the manager so they would not have to break the door down, unlocked the door quietly so defendants would not hear their approach and attempt to destroy the evidence, and entered. The apartment had a kitchen, living room, bedroom and bath room. Ker was seated in the living room; they identified themselves and told him they were conducting a narcotics investigation; simultaneous therewith, Ker's wife, Diane, walked from the kitchen into the living room; Berman identified himself to her and immediately walked to the kitchen door without entering; standing in the doorway Berman observed a small scale on top of the sink--on the scale was a brown paper package containing a 2 2/10ths-pound brick of marijuana (Exhibit 1), near it was a knife.

Defendants called Robert J. Black, presently serving time in Mira Loma, as their witness. He testified he had known them 4 1/2 years but denied knowing anything connecting them with the narcotic traffic, and denied he ever made statements to the effect to Berman or any other police officer; he admitted having met Deputy Berman at the bowling alley.

The motion denied, the matter was tried before a jury. Evidence of Sergeant Warthen's surveillance of Murphy and Ker, and Berman's entry on the premises was presented to the jury. Continuing with his testimony, Deputy Berman, after walking

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to the kitchen door and seeing the marijuana on the scales said to defendants: 'What is this,' defendants answered they did not know; Berman said, 'It appears to be marijuana to me. It is yours?', defendants did not answer. Deputy Berman then arrested defendants and asked them 'if they had any other narcotics or contraband in the apartment. They answered they did not.' The officers then took defendants into the bedroom; there they saw a box containing 1/2 ounce of marijuana (Exhibit 2) atop a dresser; asked if it was theirs, defendants remained silent. Sergeant Warthen searched the kitchen and found in the cupboard a brown manilla bag containing 1/2 ounce of marijuana (Exhibit 2); asked to whom it belonged, defendants remained silent. Warthen also saw in the kitchen a cup containing coffee, a partially eaten slice of toast and some silverware on the table, and a coffee pot on the drainboard close to the marijuana on the scales. Mrs. Ker told Warthen that she had been sitting at the table in the kitchen drinking coffee and eating toast, but had not looked in the direction of the marijuana. Sergeant Warthen then asked the defendants if they owned any other auto than the one parked in the back and which they had seen Ker driving; Ker said they did not; Mrs. Ker remained silent. Berman had information Mrs. Ker owned a car; around noon the next day he went to the car which was registered in the name of Diane Ker, searched it and found marijuana seed under the rear seat and a bag containing marijuana (Exhibit 3) in the dashboard compartment.

In his defense, Ker testified that he and his wife left the apartment at 7:30 p. m. to look for a new apartment, and returned at 10:00 p. m.; that before leaving he received a call from an unknown person and that a kitchen window had been tampered with in their absence. He denied prior knowledge or possession of the 2-pound brick of marijuana (Exhibit 1); admitted ownership of the box (Exhibit 2) but denied the marijuana in it was his; denied having met anyone during the period between 7:30 and 10:00 p. m., except Beswick whom they had visited; and admitted he knew Murphy but denied any rendezvous with him. Mrs. Ker corroborated her husband and denied prior knowledge of the marijuana (Exhibit 3) found in her automobile. Mr. Ker's father and mother and Mrs. Ker's mother corroborated defendants' testimony relative to the 'suspicious circumstances' of the telephone call and the tampered kitchen window. Beswick testified defendants visited him that night in his apartment. The theory of

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the defense was that while defendants were absent between 7:30 and 10:00 p. m. someone planted the marijuana in their apartment.

On rebuttal, Sergeant Keith of the Glendale Police Department testified to a conversation with Ker in 1957, wherein the latter told him he had smoked marijuana several times but got 'no kick out of it'; that Ker saw marijuana, which was identified as such, at that time.

Inasmuch as the...

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