People v. Johnson

• Decision Date: 27 May 1968
• Docket Number: Cr. 11360
• Citation: 68 Cal.2d 629,440 P.2d 921,68 Cal.Rptr. 441
• Court: California Supreme Court
• Parties: , 440 P.2d 921 The PEOPLE, Plaintiff and Respondent, v. Lee Z. JOHNSON, Defendant and Appellant.

Page 441

68 Cal.Rptr. 441

68 Cal.2d 629, 440 P.2d 921

The PEOPLE, Plaintiff and Respondent, v. Lee Z. JOHNSON, Defendant and Appellant.

Cr. 11360.

Supreme Court of California,

In Bank.

May 27, 1968.

Rehearing Denied June 26, 1968.

[68 Cal.2d 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

[440 P.2d 922] 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 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 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 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, 378 P.2d 113; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.) 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, 291 P.2d 469.) 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, 423 P.2d 557.)

[440 P.2d 923] not revealing the identity. The act of the defendant in the room--'.

'A search and seizure made pursuant to consent secured immediately following an illegal entry or arrest * * * is inextricably bound up with the illegal conduct and cannot be segregated therefrom.' (People v. Haven, 59 Cal.2d 713, 719, 31 Cal.Rptr. 47, 50, 381 P.2d 927 (disapproving cases containing contrary implications); People v. Henry, supra, 65 Cal.2d 842, 846, 56 Cal.Rptr. 485, 423 P.2d 557.) People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, itself established that the fruits of an unlawful search were inadmissible, and we are satisfied that a search or entry made pursuant to consent immediately following an illegal search, involving an improper assertion of authority, is inextricably bound up with the illegal conduct and cannot be segregated therefrom. (Cf. Wong Sun v. United States, 371 U.S. 471, 485--486, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Bilderbach, 62 Cal.2d 757, 764, 44 Cal.Rptr. 313, 401 P.2d 921; People v. Dixon, 46 Cal.2d 456, 458, 296 P.2d 557.)

Accordingly, if on the record before us we must conclude that the search of Cooper was unlawful, his consent to the entry of his hotel room is invalid, and the evidence secured by the prosecution as the fruit of that consent is inadmissible.

Under the record before us, the search of Cooper was unlawful. The information obtained from the informant may not be used to furnish probable cause for his arrest and search. At the time of trial in the instant case in 1963, the rule was that information received from an informer may not be considered on the issue of probable cause where the prosecution refuses to identify him, and where the defense shows that it is relying upon the failure to identify the informer as making the search illegal. (Coy v. Superior Court, 51 Cal.2d 471, 473, 334 P.2d 569; Priestly v. Superior Court, 50 Cal.2d 812, 819, 330 P.2d 39.)

Although an exception to the rule of Coy and Priestly was created subsequent to the trial, the exception does not justify consideration of the information of the informer in the instant case on the issue of probable cause. In McCray v. State of Illinois (1967) 386 U.S. 300, 305, 87 S.Ct. 1056, 1059, 18 L.Ed.2d 62, the Supreme Court of the United States in a five-to-four decision held that when 'the issue is * * * probable cause for an arrest or search * * * police officers need not invariably be required to disclose an informant's identity if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant.' The court pointed out that the officers there had related prior occasions when the informer had given information resulting in convictions, including the names of the persons convicted, and the court distinguished Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, on the ground that each of the officers Subdivision (c) of section 1042 of the Evidence Code which became effective in 1967 provides that in certain cases evidence of information communicated to a peace officer by a confidential informant who is not a material witness to guilt or innocence as to the charged offense 'shall be admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure.'

[440 P.2d 924] in McCray described 'with specificity' what the informer actually said and why the officer believed the information credible, the "underlying circumstances from which the officer concluded that the informant * * * was 'credible' or his information 'reliable."' (386 U.S. at p. 304, 87 S.Ct., at p. 1059.) We followed McCray in Martin v. Superior Court (1967) 66 Cal.2d 257, 57 Cal.Rptr. 351,424 P.2d 66 Cal.2d 257, 57 Cal.Rptr. 351, 424 P.2d

The exception to Priestly and Coy set forth in McCray and subdivision (c) of section 1042 can have no application where, as here, the only evidence as to reliability of the informer or credibility of his information, is the officer's opinion that he is reliable, without any showing of the underlying circumstances or any factual proof in court as to reliability and credibility.

It follows that, whether we apply the rules existing at the time of defendant's trial or the...