Hernandez v. Superior Court, In and For Los Angeles County

• Decision Date: 10 July 1956
• Citation: Hernandez v. Superior Court, In and For Los Angeles County, 299 P.2d 678, 143 Cal.App.2d 20 (Cal. App. 1956)
• Court: California Court of Appeals
• Parties: Caroline HERNANDEZ, Petitioner, v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF LOS ANGELES, Respondent. Civ. 21845.

Page 678

299 P.2d 678

143 Cal.App.2d 20

Caroline HERNANDEZ, Petitioner, v.The SUPERIOR COURT of the State of California, in and for the COUNTY OF LOS ANGELES, Respondent.

Civ. 21845.

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

July 10, 1956.

Bryon Schwartz, Los Angeles, for petitioner.

S. Ernest Roll, Dist. Atty., Fred N. Whichello, Deputy Dist. Atty., Los Angeles, for respondent.

NOURSE, Justice pro tem.

By an information filed with the District Attorney of the County of Los Angeles, petitioner is charged with violation of section 11500 of the Health and Safety Code.Her motion to set aside the information, made pursuant to section 995 of the Penal Code, having been denied she here seeks a writ of prohibition to arrest further proceedings in the respondentcourt.

The relevant facts are:

Petitioner and one Taverez resided in an apartment at the rear of 1814 Workman Avenue in the City of Los Angeles.

Taverez had been indicted by the grand jury of Los Angeles County on a charge of the sale of narcotics.Police of the City of Los Angeles learned that an automobile used by him was parked on Workman Avenue (adjacent to the apartment house in which petitioner and Taverez resided).The police staked out in the vicinity of the parked automobile, and when Taverez entered it they placed him under arrest and there took him into custody.After he was under arrest the officers were advised by a by-stander that Taverez lived in an apartment at the rear of 1814 Workman Avenue, the door to which was about 95 feet from the place on the public street where Taverez was held under arrest, and that it was the apartment with a light on.

The officers then went to the apartment indicated by their informant and entered without invitation.They there found petitioner.They did not then have any knowledge of any unlawful act having been committed by petitioner, nor did they have any basis for believing that petitioner had committed a felony.They did not have a warrant for her arrest or a search warrant.They proceeded to search the apartment and found therein a quantity of narcotics.Petitioner admitted that one of the narcotics (dolophine) was hers and that she was using it.Petitioner was then placed under arrest.

The evidence seized in the apartment was received in evidence by the committing magistrate over petitioner's objection.It is conceded by respondent that if this evidence was improperly received, petitioner's motion made pursuant to section 995 of the Penal Code should have been granted, and that the writ prayed for here should issue.

We have concluded that the evidence in question was obtained through an unreasonable search and an unlawful seizure, and that therefore under the rule laid down in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, the evidence in question should have been excluded by the committing magistrate; and that petitioner is entitled to the writ she here prays for.

It is the contention of respondent that the search of the apartment occupied by petitioner and Taverez was a proper incident to the lawful arrest of Taverez.Respondent relies in People v. Winston, 46 Cal.2d 151, 293 P.2d 40, andPeople v. Coleman, 134 Cal.App.2d 594, 286 P.2d 582.Neither of these cases supports respondent's contention.In each of them the premises searched were those in which a lawful arrest had been made.In the case at bar the arrest of Taverez was made upon the public street, and at the time of the arrest the officers were not even informed as to his place of residence.

Respondent also relies on People v. Dixon, 46 Cal.2d 456, 296 P.2d 557.That case does not support its contention.In the cited case the same arresting officer who made the arrest of petitioner here entered Dixon's apartment and placed her under arrest without a warrant.The officers searched the apartment and found material which is used to cut heroin.While they were in the apartment Dixon attempted to dispose of a key and it was taken from her by force.This key turned out to be the key to a garage connected with the apartment she rented.In the garage the officers found a quantity of heroin which had been cut.This drug was introduced into evidence against Dixon at her trial.The Supreme Court held that there having been no evidence to justify the entry, arrest, and search, the evidence was illegally obtained and should have been excluded; and reversed her conviction.It stated, however, that if on a new trial reasonable cause was shown for the entry into Dixon's apartment and her arrest, that the contemporaneous search of the garage would be a lawful search as an incident to that arrest, since the garage was on the premises where the arrest was made and was under defendant's control.It is evident that this case is not authority for a search without a warrant of an arrested person's home and place of residence, when that arrest is not made upon the premises where the person arrested resides.

To usthis case seems to be on all fours with that of Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409.In that case Agnello and others were charged with conspiracy to violate the Harrison Act.Among the overt acts charged was the sale of a quantity of cocaine at the home of one Alba.The evidence introduced by the government showed that certain under-cover agents of the...