People v. Gutierrez

• Citation: 140 Cal.Rptr. 122,72 Cal.App.3d 397
• Decision Date: 03 August 1977
• Docket Number: Cr. 30239
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Flores GUTIERREZ, Defendant and Appellant.

Page 122

140 Cal.Rptr. 122

72 Cal.App.3d 397

The PEOPLE, Plaintiff and Respondent, v. Richard Flores GUTIERREZ, Defendant and Appellant.

Cr. 30239.

Court of Appeal, Second District, Division 1, California.

Aug. 3, 1977.

Hearing Denied Sept. 28, 1977.

Lee P. Crystal, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Dist. Atty., Harry B. Sondheim, Head, App. Div., Donald J. Kaplan and George M. Palmer, Deputy Dist. Attys., for plaintiff and respondent.

THE COURT: ^*

Defendant appealed from a municipal court judgment entered on a jury verdict finding him guilty of using an opiate, a misdemeanor (§ 11550, Health & Saf.Code). The appellate department of the superior court reversed the judgment and ordered publication of its opinion. Subsequently, on this court's own motion, the cause was ordered transferred hereto for hearing and decision pursuant to rule 62(a), California Rules of Court.

We have examined the original file of the appellate department of the superior court including the reporter's transcripts of all oral proceedings had in the municipal court and conclude that the opinion and judgment of the appellate department of the superior court correctly determine the legal issues involved, thus, we adopt the entirety of the opinion prepared by Judge Arthur L. Alarcon, and the judgment based thereon.

'The defendant has appealed from his conviction for using an opiate in violation of Health and Safety Code Section 11550. His pretrial motion to suppress the observations of the arresting officer was denied.

'He contends that he was the victim of an unreasonable search which renders his prosecution constitutionally impermissible. We agree.

'Factual Background

'Officer Charles Heilman testified he was present at the El Patio Bar on October 29, 1975. At 11:40 p.m. he saw the defendant leave the restroom and pass him on the way to the bar. The defendant was holding a bottle of beer. Despite the poor lighting, he observed two small brown scab marks over a vein on the defendant's right hand. One scab was an inch long. He had seen such scabs many times before in connection with the illegal injection of heroin. Officer Heilman also noticed that the defendant's eyes were watery, his pupils were pinpointed and appeared dilated and he was sniffling and yawning. These symptoms indicated to Officer Heilman that the defendant was experiencing withdrawal symptoms from the illegal use of an opiate.

'Officer Heilman told the defendant he was going to examine him for a narcotics violation and asked him to step outside. In the patio outside the bar, the defendant was requested to remove his coat. Officer Heilman observed 9 puncture wounds on the defendant's left arm and 8 or 9 on his right arm. The freshest puncture wound was two days old. Officer Heilman used a magnifying glass to examine the puncture marks. The defendant was arrested after Officer Heilman examined the defendant's arms.

'At the hearing on the motion to suppress, Defense Counsel argued that the detention was unlawful and that therefore the observations of the defendant's arms were the product of an unreasonable search.

'The People argued successfully that the presence of tracks and marks on the defendant's hand gave the officer 'reasonable cause to believe that a misdemeanor is being committed, namely a 11550', in that 'the defendant was going through withdrawals.'

'Discussion

'The observations made by Officer Heilman of the defendant's arm were made as the result of the request by the officer that the defendant remove his coat. These observations constituted a search. Since no emergency has been shown by the facts, in the absence of consent or a warrant, the only justification for this search would be 'Penal Code Section 836 provides in pertinent part: 'A peace officer may make an arrest . . . without a warrant . . .:

on the basis that it was incident to a lawful arrest.

'1. Whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.'

'The prosecution proceeded on the theory that the arrest was lawful because the officer had reasonable cause to believe that a violation of Section 11550 of the Health and Safety Code was being committed in his presence. Section 11550 provides in pertinent part as follows: 'No person shall use, or be under the influence of any controlled substance . . . which is a narcotic drug . . .'

'The arresting officer testified that he believed that the defendant was exhibiting withdrawal symptoms caused by the illegal use of an opiate.

'We must decide the novel question as to whether the fact that a person is observed to be experiencing withdrawal symptoms establishes reasonable cause to believe a violation of Section 11550 is being committed in the presence of the observer. To answer this query we must analyze the nature of the separate crimes of 'use' and of being 'under the influence of' a controlled substance or a narcotic.

'The term 'use' of narcotics refers to the act of injecting or ingesting a controlled substance or narcotic (see People v. Thompson (1956) 144 Cal.App.2d Supp. 854, 856 (301 P.2d, 313)). 'The object of the statute is to proscribe a Use of narcotics that is an activating part of the process of addiction whatever may be the stage of that process at the time of their use.' (Emphasis added) (People v. Davis (1966) 240 Cal.App.2d 496, 501 (49 Cal.Rptr. 663)).

'An officer may arrest for use under Section 11550 of the Health and Safety Code when he has reasonable cause to believe that the person to be arrested has injected or ingested a controlled substance in the officer's presence. Nothing in the facts presented to the trial court would support a finding that the search of the defendant was based on a reasonable belief that the defendant had used narcotics or a controlled substance in the officer's presence.

'The term 'under the influence' as used in Section 11550 of the Health and Safety Code refers to the presence of physical symptoms of the unlawful use of narcotics or a controlled substance 'in any detectable manner.' (People v. Davis (1966) 240 Cal.App.2d 496, 501 (49 Cal.Rptr. 663)). In the instant matter there was no evidence that the defendant was under the influence of a narcotic or a controlled substance at the time of the search.

'The basis for the search was the opinion of the officer that the defendant was experiencing withdrawal symptoms. Withdrawal from the use of narcotics is not a crime. It is in fact the direct result of discontinuing the crime of use. In People v. Victor (1965) 62 Cal.2d 280 (42 Cal.Rptr. 199, 398 P.2d 391), the Supreme Court discusses the various stages of the addiction process. In its discussion of withdrawal symptoms the Supreme Court stated: '(5) temporary cessation (whether voluntary or not) of use of the drug, resulting in manifestation of Physical dependence in the form of withdrawal symptoms' (at page 302 (42 Cal.Rptr. 199, 398 P.2d 391)).

'It is our view that persons who have ceased the use of narcotics and controlled substances, for whatever reason, should be encouraged and supported rather than subjected to unwarranted searches. The search of the defendant cannot be justified as incident to a lawful arrest. Accordingly, the trial court erred in denying the motion to suppress the observations of the officer which resulted from the direction to the defendant to take off his coat. The evidence obtained following these observations, including the defendant's statement, was tainted and should have been suppressed (see Wong Sun v. United States (1963) 371 U.S. 471 (83 S.Ct. 407, 9 L.Ed.2d 441); Brown v. Illinois (1975) 422 U.S. 590, 598--599 (95 S.Ct. 2254, 45 L.Ed.2d 416)).

'The judgment is reversed. The trial court is directed to vacate its order denying the motion to suppress and to enter an order granting such motion consistent with this opinion.'

HANSON, Associate Justice, dissenting.

I respectfully dissent.

I am compelled to register a dissent on the grounds that in my view the majority opinion 'run(s) counter to Both the 'legalities' of the case and the 'realities' of the disastrously mushrooming drug scene which California citizens increasingly demand that its public servants, in all branches of government, including the judiciary, bring under control.' (People v. Holly (1976) 62 Cal.App.3d 797, 133 Cal.Rptr. 331, dis. opn. of Hanson, J. at p. 807, 133 Cal.Rptr. at p. 337, original italics.)

My reasoning follows:

THE CASE

On October 30, 1975, defendant was charged with the unlawful use and being under the influence of a controlled substance on October 29, 1975, in violation of Health and Safety Code section 11550 (hereinafter Section 11550), a misdemeanor.

On November 21, 1975, defendant's motion in the municipal court to withdraw his previous plea of guilty was granted and a public defender was appointed to represent him.

On December 30, 1975, defendant's motion pursuant to Penal Code section 1538.5 was denied and the matter proceeded to jury trial.

On January 7, 1976, the jury returned a verdict of guilty as charged.

On February 23, 1976, defendant's motion for new trial was denied and he was sentenced to nine months in the county jail with credit for time served.

Although a minute order in the municipal court file on the date of sentencing indicates defendant was sentenced for the offense of being 'under the influence of narcotics', the entire file clearly shows defendant was tried and convicted under the 'use' provision of Section 11550. ¹

On March 19, 1976, defendant filed his notice of appeal to the appellate department of the superior court on the grounds, as contained in the 'Settled Statement by Court', that '(1) Officer Heilman lacked probable cause to detain the defendant for investigation at the time he made the initial contact; (2) Officer Heilman did not have probable cause to arrest the defendant...