68 Cal.2d 629, 11360, People v. Johnson

Docket Nº:11360
Citation:68 Cal.2d 629, 68 Cal.Rptr. 441, 440 P.2d 921
Opinion Judge:[9] Peters
Party Name:People v. Johnson
Attorney:[7] Morton Herbert, under appointment by the Supreme Court, for Defendant and Appellant. [8] Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Lawrence Mindell and Marvin A. Bauer, Deputy Attorneys General, for Plaintiff and Respondent.
Case Date:May 27, 1968
Court:Supreme Court of California

Page 629

68 Cal.2d 629

68 Cal.Rptr. 441, 440 P.2d 921

The PEOPLE, Plaintiff and Respondent,


Lee Z. JOHNSON, Defendant and Appellant.

Cr. 11360.

Supreme Court of California

May 27, 1968.

In Bank

Rehearing Denied June 26, 1968.

Page 630

Morton Herbert, Hollywood, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Lawrence Mindell and Marvin A. Bauer, Deputy Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

Defendant was found guilty of possession of heroin in violation of section 11500 of the Health and Safety Code. After denying a motion for new trial on August 26, 1963, the trial judge adjourned the proceedings, and directed that a petition be filed to determine whether defendant was addicted to the use of narcotics or in imminent danger of becoming so addicted. Defendant was committed as a narcotic addict and thereafter, on May 4, 1966, was returned for completion of the criminal proceedings. On May 19, 1966, he was sentenced to the state prison for the term prescribed by law. He appeals from the judgment of May 19.

The testimony of Los Angeles Police Officers Miers and Ladner may be summarized as follows: On the night of May 27, 1963, a 'reliable informant' told them that one Curtis Cooper was selling heroin in his room at a named hotel. That night the officers went to the hotel to talk to Cooper, who had previously admitted being 'a user' to Miers. As the officers approached, Cooper came out of his room and walked down the hall towards them. They stopped Cooper in the hallway and questioned him as to possible sales of heroin. Officer Miers

Page 631

made a search of Cooper and found that he was carrying approximately $100 in small bills. No heroin was found on Cooper. He then asked Cooper if he could search his room, and Cooper said he could and gave the officer the key to the room. The officers went to the hotel room. Officer Miers inserted the key into the lock and was attempting to open the door, when it was opened by defendant. On seeing the officers, defendant appeared surprised, backed away, turned his back to the officers, bowed his head, and put his hand towards his face. Officer Miers asked him to turn around and open his mouth, and, when defendant did so, the officer saw a balloon in defendant's mouth. The officer told defendant to spit it out, and he did so. The balloon contained a powder which later proved to be heroin. The officers did not have a warrant to arrest or search defendant or Cooper.

Defendant testified that shortly after Cooper left the hotel room, he heard a key in the door, that he 'figured' that Cooper was trying to get back in, that when he opened the door he saw Officer Miers, that he turned away from the officer who told him to open his mouth, and that the officer then pulled the balloon out of his mouth.

After the prosecuting attorney had asked Officer Miers several questions on redirect relating to the issue of probable cause for the search of defendant, defense counsel on recross-examination asked the name of the informant. The officer stated that he did not wish to reveal that person's name because it might endanger his life. The prosecuting attorney then stated that the name must be revealed only if the information received from the informer is the sole basis of probable cuase, that if there is some other basis for probable cause the name need not be revealed, and that the prosecution was relying on the consent to enter the room and the observations of the officers after the door was opened.

Subsequently, defense counsel stated that he did not know if the consent was 'involuntary or otherwise. There have been recent cases which the Supreme Court, on the question of whether consent is really free, and of the recent Haven case in which the---'. The trial court then asked: 'You have no basis to attack the consent in this case?' And defense counsel replied: 'Except the entire situation is one that doesn't, in my estimation, ring really completely true, whether this is consent by Cooper or simply a submission, and the same thing is true when they get into the room. I think it

Page 632

is an entire picture that can't be--the officers went there. The information from the informant is no longer able to be considered, because of the officers not revealing the identity. The act of the defendant in the room--'.

It is settled that when the question of the legality of an arrest or search and seizure is raised at trial, the defendant makes a prima facie case when he establishes that an arrest was made without a warrant or that private premises were entered or a search made without a warrant, and the burden then rests on the prosecution to show proper justification. (Tompkins v. Superior Court, 59 Cal.2d 65, 67, 27 Cal.Rptr. 889; Badillo v. Superior Court, 46 Cal.2d 269, 272.) When the People seek to justify a search on the ground that consent was given, they have the burden of proving that a lawful consent was given. (People v. Gorg, 45 Cal.2d 776, 782--783.) If the prosecution is to rely upon a consent to enter a hotel room, it has the burden of establishing that the consent was lawful, was not a mere submission to authority, and was not inextricably bound up with unlawful conduct. (Cf. People v. Henry, 65 Cal.2d 842, 845--846, 56 Cal.Rptr. 485.)


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