Barajas v. Superior Court
| Decision Date | 03 August 1970 |
| Citation | 10 Cal.App.3d 185,88 Cal.Rptr. 730 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Delores BARAJAS and John Mitchell Mercado, Petitioners, v. SUPERIOR COURT OF the State of California, COUNTY OF LOS ANGELES, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 36278. |
Daye Shinn, Los Angeles, for petitioners.
No appearance for respondent.
Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, Daniel L. Lieberman, Deputy Dist. Atty., for real party in interest.
After a preliminary hearing the district attorney, on February 27, 1970, filed an information in the respondent court charging the petitioners Mercado and Barajas jointly with possession of Benzedrine and Seconal for sale (Health & Saf.Code, § 11911--Count II) and possession of marijuana (Health & Saf.Code, § 11530--Count III). Mercado and one Bohl, who is not involved in this proceeding, were charged with selling, furnishing and giving away Seconal (Health & Saf.Code, § 11912--Count I), Barajas alone was charged with possession of Benzedrine (Health & Saf.Code, § 11910--Count IV). A motion to set aside the information, made pursuant to section 995 of the Penal Code was denied and petitioners then applied to this court for a writ of prohibition. (Pen.Code, § 999a.) We issued an alternative writ.
At 8:35 p.m. on January 29, 1970, State Narcotic Agent Fleischer who was in the company of an informer, had a conversation with Bohl outside Big John's Pizza Parlor in Long Beach. After the conversation Bohl left in his car and drove to a single family residence at 245 LaVerne, followed and observed by Officer Gath of the Long Beach police. He entered and five minutes later emerged with Mercado who was carrying a blue suitcase which he put in the trunk of Bohl's car. They drove to Hamburger Henry's where they met agent Fleischer in the parking lot. Bohl asked to see Fleischer's money. Fleischer wanted to see the 'keg' first. Bohl opened the trunk of his car and pointed to a blue suitcase. Mercado invited Fleischer to open it. Fleischer did so and observed 10 plastic bags containing about 5000 capsules each. It was later stipulated that a forensic chemist would have testified that they contained Second (Count I). Fleischer started a discussion of the price of the 'keg' with Mercado who suggested that they enter an automobile because it was not 'cool' out there. Fleischer then put the suitcase inside the trunk of his car. This was a prearranged signal to several other officers who were apparently observing the transaction from a distance. Mercado and Bohl were arrested and promptly advised of their constitutional rights, which they waived. Mercado then stated that he lived at 245 LaVerne, had left his home knowing he was going to sell 'to the man,' had been 'dealing' for a long time and had a keg of 'whites' (Benzedrine) in the bedroom closet of his house. He also said that only his wife and baby were at the house at the time. He refused, however, to permit the officers to return to and search the house, unless they had a search warrant. He was told that one would be obtained.
Mercado was taken to a police station, while Fleischer in the company of five officers went to 245 LaVerne. Herewith his description of his initial encounter with petitioner Barajas: * * *' After two minutes Fleischer left and obtained a search warrant from Judge Sutherland of the Long Beach Municipal Court, with which he returned about two and one-half hours later.
On cross-examination, in answer to the question: 'Did you at any time ask defendant Barajas whether or not she lived there?' he replied: 'She stated that we must have the wrong house that she only lived there with her little baby, that nobody else lived in the residence.' At no time during the preliminary hearing was it developed whether that question was asked before or after the officers' entry. For that matter, none of the several officers who testified was ever asked specifically whether the purpose or the entry was to arrest Barajas or merely to prevent her from disposing of any drugs until a search warrant could be obtained and executed. 1 The most we know from the record is that the reason why she was handcuffed was that she was assaulting the officers.
Before Fleischer's return with the warrant other officers went through the house to look for other persons. They found a child described both as a 'little boy' and a 'little baby.' No search for drugs or other contraband was made until Fleischer returned with the search warrant. They then found about 1,000 Seconal capsules (Count II) and a certain amount of Benzedrine in a hall closet, marijuana on a table in the den (Count III), some more Benzedrine in Barajas' purse (Count IV) and 50,000 Benzedrine tablets in the laundry hamper in the bedroom closet (Count II).
Mercado's petition is clearly frivolous. He argues only an alleged lack of evidence of knowing possession. He does not even distinguish between the 50,000 Seconal tablets found in the blue suitcase and other items found in the house. The proof of his actual knowing possession of the former and constructive knowing possession of the latter was so obviously adequate that no further discussion is required. (People v. Redrick, 55 Cal.2d 282, 10 Cal.Rptr. 823, 359 P.2d 255.)
Barajas does not attack the validity of the warrant obtained by Fleischer. She claims, however, that the success in its execution was nevertheless the fruit of a poisonous tree--the officers' forced entry and continued presence while the warrant was being obtained.
When we granted the alternative writ we thought that we were squarely presented with a problem involving Fourth Amendment law which to the best of our knowledge had never been decided: whether police, who have probable cause to believe that a residence contains contraband, but have neither a search warrant, nor probable cause to arrest anyone in the home, may force entry for the sole purpose of preventing the disposal of the contraband while other officers obtain a warrant.
While in the future course of this litigation some court may yet have to deal with that issue, we have come to the conclusion that the present proceeding does not properly raise it. We feel bound to hold that on the evidence presented to him at the preliminary hearing, the magistrate was entitled to find that the officers had probable cause to arrest Barajas for possession of Benzedrine. (Health & Saf.Code, § 11910.) This fact, of course, would not have authorized a search of the inner reaches of her home (Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685); however the legal arrest of Barajas certainly permitted the officers to prevent her from gaining access to the contraband to frustrate the impending execution of a warrant. To be sure, once Barajas was arrested she should have been booked at a station and not kept prisoner in her own home. However, that illegality did not aid in the discovery of the drugs. Had Barajas been removed from the premises, she certainly would have had even less opportunity to dispose of them. 2 It remains then to determine whether Barajas' arrest was, indeed, legal.
The police had legally arrested Mercado. He talked freely after an adequate waiver of his constitutional rights. He had absolutely nothing to gain by disclosing the presence of 50,000 Benzedrine pills in his home. (Cf. People v. Spriggs, 60 Cal.2d 868, 874--875, 36 Cal.Rptr. 841, 389 P.2d 377.) That the statement was not made to curry favor with the arresting officers is demonstrated by Mercado's refusal to permit a warrantless search. 3 Obviously the information he gave was far more 'reliable' than information obtained from the usual untested or unreliable stool pigeon. Apparently it was adequate to convince Judge Sutherland to issue the search warrant. This appears to be tacitly admitted by petitioners' failure to attack the warrant. The principle which lifts victims and 'citizen' witnesses out of the class of unreliable informers (People v. Hogan, 71 Cal.2d ---, --- *, 80 Cal.Rptr. 28, 457 P.2d 868, People v. Gardner, 252 Cal.App.2d 320, 324--325) seems adequate to lend credibility to Mercado's voluntary confession. (See also Skelton v. Superior Court, 1 Cal.3d 144, 154, fn. 7, 81 Cal.Rptr. 613, 460 P.2d 485; People v. McFadden, 4 Cal.App.3d 672, 688, 84 Cal.Rptr. 675.)
Since, however, the validity of the search warrant is not before us we need not hold just what the police were entitled to do based only on the information obtained from Mercado. When they entered the house they knew considerably more about Barajas then they had known when they approached it. We must, of course, disregard her insistence that a search...
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