Davis v. People of State of California

• Decision Date: 26 March 1965
• Docket Number: No. 19358.,19358.
• Citation: 341 F.2d 982
• Parties: James DAVIS, Appellant, v. PEOPLE OF the STATE OF CALIFORNIA and Robert A. Heinze, Warden, Folsom Prison, Represa, California, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

341 F.2d 982 (1965)

James DAVIS, Appellant, v. PEOPLE OF the STATE OF CALIFORNIA and Robert A. Heinze, Warden, Folsom Prison, Represa, California, Appellees.

No. 19358.

United States Court of Appeals Ninth Circuit.

February 18, 1965.

Rehearing Denied March 26, 1965.

John Alan Montag, Los Angeles, Cal., for appellant.

Thomas C. Lynch, Atty. Gen. of California, Doris H. Maier, Asst. Atty. Gen. of California, Sacramento, Cal., for appellees.

Before POPE, HAMLEY and ELY, Circuit Judges.

HAMLEY, Circuit Judge:

James Davis, a California state prisoner, applied to the district court for a writ of habeas corpus.¹ The detention complained of results from a state court conviction, after a trial without a jury, of the crime of possession of a narcotic, heroin, in violation of California Health and Safety Code, § 11500.²

The district court, on its own motion and without hearing, denied the application. That court thereafter entered a certificate of probable cause, enabling Davis to appeal. See 28 U.S.C. § 2253 (1958). He has done so.

Appellant contends that the district court erred in holding that the evidence which led to the conviction was not obtained as a result of an unlawful search and seizure. The evidence in question consisted of a narcotic outfit wrapped in a newspaper and two balloons containing heroin.

Since the district court denied the application without a hearing, the facts to be considered are those set out in the application for a writ. In the preparation of that application Davis was represented by retained counsel. The method employed in setting out the pertinent facts in the application was to summarize, in considerable detail, the testimony of the various witnesses. This same testimony is also summarized, although in less detail, in the opinion of the District Court of Appeal.³

The summarized testimony establishes, without dispute, that on the morning of March 5, 1962, police officers J. F. Aguirre and Edward Sanchez were on a "stake-out" at 11819 Robin Street in Los Angeles. They were investigating reported narcotics activities at that address. Aguirre observed Mary Ballard and Kenneth Douthit leave that location. The two officers followed them to a motel at 405 East Imperial Boulevard, where Mary Ballard and Kenneth Douthit entered room No. 5.

Aguirre and Sanchez positioned themselves at the door to listen to conversation within the room, but heard nothing. About three minutes later Aguirre went to the office of the motel manager and ascertained that room No. 5 was registered to Mary Ballard and Kenneth Douthit. At approximately 11 A.M. Aguirre saw a person known to him as Walter Morris, whom he had once arrested for a narcotics violation, enter and then leave room No. 5. At this time neither officer had a warrant to search any place or person, or a warrant to arrest any person.

Concerning the manner in which the officers entered the room, the testimony is in conflict. Aguirre testified that at approximately 11:30 A.M. Mary Ballard and Kenneth Douthit began to leave. He testified that he and his partner approached them, displayed their badges, identified themselves as police officers, told them that they were investigating narcotics activity, and stated that the officers wanted to talk to them. Aguirre testified that Mary Ballard then volunteered, "We aren't messing around with any stuff — if you want to, come in and look around."⁴ According to Aguirre, he then entered the room ahead of his partner. During this episode Aguirre testified, neither he nor Sanchez had their guns drawn, nor did either of them open the door.

Mary Charlene Douthit, who is the Mary Ballard referred to by Officer Aguirre,⁵ testified that she was not leaving the apartment at the time in question, but was standing at the foot of the bed wrapping up a blouse that she had washed. Her husband, she testified, attempted to open the door and she was startled by the words "Don't move. You are under arrest." It was her testimony that she observed Sanchez with his pistol drawn and that he walked to her and stated, "Mary Ballard, don't go for your brassiere." According to her, Aguirre followed his partner into the room.

Mary Ballard further testified that she did not go outside and invite the officers in, or consent to a search of the room. She testified that Sanchez told her to remove her blouse, at which point she asked him if he had a search warrant. According to her testimony, Sanchez stated "I don't need a search warrant." Kenneth Douthit and appellant James Davis gave testimony tending to support that of Mary Ballard concerning the officers' entry. In this connection Douthit stated that when the officers came in they stated, "You are all under arrest."

With regard to the manner in which the items of evidence were obtained after the officers entered the room, Aguirre's testimony is, in most respects, undisputed. He testified that he saw Davis standing at the foot of a bed and observed him quietly put his hand in his right trouser pocket and draw it out and then take three hurried steps through a doorway leading to a bathroom. Aguirre testified that he then ran toward Davis, stopped him, and asked what he had in his hand. According to Aguirre, Davis responded by handing the officer a package wrapped in a newspaper. Aguirre opened it and found it to contain the narcotic outfit.

Officer Aguirre testified that Davis, Mary Ballard and Kenneth Douthit were then placed under arrest, whereupon Aguirre searched Davis and found the two balloons containing heroin in his trouser pocket. Except for the contrary testimony that the officers stated that "You are all under arrest," when they entered the room, and Davis' testimony that he had not seen any narcotics, Aguirre's version of the actual seizure is uncontradicted.⁶

The district court held that the initial entry into the apartment was made with the valid consent of Mary Ballard. Davis argues that the district court erred in so holding and that the illegality of the entry, because made without valid consent, tainted everything that thereafter transpired leading to seizure of the evidence.

Davis' argument proceeds on the assumption that the state trial court found the facts concerning entry into the apartment to be as testified to by Officer Aguirre, and involves no challenge to the correctness of that trial court finding.⁷ Under these circumstances the posture of the entry question is the same as if there had been an agreed statement of facts consistent with Aguirre's testimony concerning the entry, the only question being the application of the law to those facts.

One reason advanced by Davis why, under Aguirre's version, it should be held that Mary Ballard did not give a valid consent to enter, is that when the officers came to the door they told her that they were police officers investigating narcotics activities.

This statement constituted neither a demand to enter nor a demand for information. It was not even a request to enter and, according to Aguirre, no such request was made, the invitation being volunteered by Mary Ballard. The statement complained of served only to identify the officers, explain why they were present, and why they wished to talk with Mary Ballard. This was entirely proper and did not interject a coercive element which would render Mary Ballard's consent to enter involuntary.

Davis further argues, however, that incidents occurring prior to the officers' conversation with Mary Ballard tend to establish the illegality of the entry. Referring to these events as encompassing the "total atmosphere of the case," Davis makes the following assertions: the officers were conducting a general exploratory investigation of unlawful narcotics activities on a "stake-out" at another address; the officers were not investigating Mary Ballard and Kenneth Douthit nor the motel to which they went; the officers gave no reason for following Mary Ballard and Kenneth Douthit to the motel; there was no reason to suspect they were engaged in narcotics activities warranting police surveillance, and the officers were trespassing and eavesdropping at the motel.

Since the district court did not err in determining, on the basis of the implied state trial court findings, that the police officers entered the motel room pursuant to the permission voluntarily given by Mary Ballard, all of the prior events, whether or not correctly characterized by appellant, are wholly immaterial.

Passing to the manner in which the evidence was obtained after the officers entered the motel room, the district court held that when Davis handed to Aguirre the package containing...