Hurst v. People of State of California

Decision Date06 December 1962
Docket NumberCiv. No. 8507.
CourtU.S. District Court — Northern District of California
PartiesArthur Lee HURST, Petitioner, v. The PEOPLE OF the STATE OF CALIFORNIA, Robert A. Heinze, Warden, et al., Respondents.

Arthur Lee Hurst, in pro. per.

Stanley Mosk, Atty. Gen. of California, Sacramento, Cal., for respondents.

HALBERT, District Judge.

Petitioner has filed with this Court an application for a writ of habeas corpus, pursuant to the provisions of Title 28 U.S.C. § 2241(c) (3), seeking his release from the California State Prison at Folsom. He is presently incarcerated in said prison under a commitment of the Superior Court of the State of California, in and for the County of Los Angeles, pursuant to a conviction on two counts of violation of California Health and Safety Code, § 11500 possession of narcotics other than marijuana (See: People v. Hurst, 183 Cal.App.2d 379, 6 Cal.Rptr. 483). From the record, it is clear that petitioner is a State prisoner, and is not imprisoned under any Federal law.

This Court issued its order to show cause on July 30, 1962, based upon the facts alleged in petitioner's application. Pursuant to said order the State of California, through its representative the Attorney General, has filed a reply. Petitioner has filed a traverse thereto. A recitation of the facts in this case, as found by the State courts, is appropriate at this point.

At about 3:30 p. m. on May 18, 1959, Officer Garrahan of the Los Angeles Police Department received an anonymous telephone call at the Narcotics Division office in the Police Building. The person on the telephone stated, "If you want to find two pounds of marijuana, look under the house at 309 West 83d Street," and hung up. Garrahan testified that the voice sounded like that of a female, and that he had not heard it before.

Garrahan, along with Officers Hanks and Grennan, drove to the above address. The building there located was a single-story duplex, with two residences, numbered 307 and 309.

After parking in front of the duplex, the officers went directly to the residence at 309, whereupon they dispersed to appropriate locations surrounding it. Garrahan went to the front door; Hanks went to the rear of the building; and Grennan, to the side. As Garrahan approached the building, he saw a female through an open window, inside the house. On reaching the front door he knocked once, waited a few moments and knocked a second time, waited a period of time and knocked a third time. Anniece Jones (petitioner's co-defendant and common-law wife) then came to the door. Garrahan identified himself as a police officer. Anniece opened the door and he entered. Anniece did not refuse him permission to do so. He did not force his way into the house. Anniece did not say anything until he was inside. Once inside, Garrahan told Anniece that the officers had information that there was marijuana at the house and asked her if she would mind their looking around. Anniece replied, "My husband is not here. He will be home in about thirty minutes."

During this period of time, Grennan, at the side of the building, was looking through a screened window into the bathroom. He heard Garrahan knocking on the front door, and immediately saw Anniece enter the bathroom and empty something from an ashtray into the toilet and flush it. He did not, however, see what she flushed down the toilet. He immediately stated in a loud voice that Anniece had flushed something down the toilet, walked around to the front of the house, and went inside.

During this same period of time, Hanks was at the rear of the house, where he noticed that the screen was off a "vent hole" underneath the bedroom window of 309, and was alongside said hole. The vent hole was about 12 to 14 inches wide and about eight inches high. About six inches inside the hole he saw a large brown package. He could "readily" see it, standing outside. He reached under the house and got the package, which was about a foot and a half long and six to eight inches in diameter. There were two brown paper bags inside, covering two plastic bags which, in turn, covered a large gray pillowcase. He felt of the pillowcase and felt "a weedy, leafy material" inside one of the bags. He immediately knocked on the rear window and told Garrahan, "The stuff is under the house; place them under arrest."

In the second bag there were two "condoms" containing a white powder, wrapped in a handkerchief. In the package there was also what looked like a "hypodermic outfit". Hanks then entered the house and conducted a thorough search of it. In a purse which was sitting on a dresser in the bedroom he found a bag which contained numerous green seeds, three packages of cigarette papers and a gas bill made out to petitioner at 309 West 83d Street. He found another purse which Anniece said was hers, which contained two green seeds lying loose in the bottom. He also found two hypodermic needles and an eye dropper wrapped in a piece of paper in a "poker chip box".

Petitioner arrived at the house in a Ford automobile about 4:45 p. m. As he walked toward the front door, Grennan and Hanks stepped out, identified themselves, and asked him who he was. Petitioner identified himself, and was thereupon immediately placed under arrest. Hanks searched the car, and under the dashboard on the driver's side he found one brown paper cigarette.

Officer Grennan had a conversation inside the house with petitioner in which petitioner stated he did not know anything about any marijuana in the house or underneath it. Petitioner admitted knowing that the two needles had been in the house, and claimed that they belonged to a couple of friends of his up north. Petitioner also admitted that he had been "to the joint twice, once for marijuana and once for heroin", but denied that any of the "stuff" belonged to him. He also disclaimed any knowledge about the cigarette found in the car.

The package found under the house contained 20 grams of heroin, four pounds of marijuana and a hypodermic outfit. The seeds found in the purses were marijuana. The cigarette found in the car contained marijuana. All of these items were introduced into evidence over timely and appropriate objection by petitioner. The officers had neither a search warrant nor a warrant for petitioner's arrest.

Both petitioner and Anniece took the stand in their own behalf. Their testimony consisted generally of denials of any knowledge of any of the narcotics which had been found.

Petitioner has raised three basic contentions, two of which contain no merit whatsoever. He claims, first, that he was denied the effective aid of counsel in the State court proceedings. The record demonstrates the contrary, showing that petitioner was represented by counsel at all stages of the proceedings, extending from the preliminary examination to and including the appeal from the judgment. The question of the competency of counsel is not reviewable on habeas corpus proceedings in the absence of such a showing of incompetence "as to make the trial a farce and a mockery of justice" (Palakiko v. Harper, 9 Cir., 209 F.2d 75; and Anderson v. Bannan, 6 Cir., 250 F.2d 654). Moreover, petitioner has not presented this contention to the California courts. In the absence of such a presentation, petitioner has failed to exhaust his remedies on that point, and this Court has no jurisdiction to review said contention (Title 28 U.S.C. § 2254).

Petitioner also claims that he has been subjected to double jeopardy. The apparent basis for such contention is that petitioner was originally charged with a violation of Health and Safety Code, § 11500 possession of marijuana, and that said complaint was dismissed at the preliminary hearing, after which the complaint upon which petitioner's present conviction rests was filed. The apparent basis for said dismissal was the fact that possession of marijuana was, at that time, prohibited not by § 11500, but by § 11530 of the California Health and Safety Code. Not only has petitioner failed to present this argument to the California courts on appeal, therefore preventing either this Court or the California courts from considering said point on habeas corpus proceedings (Title 28 U.S.C. § 2254, and In re Dixon, 41 Cal.2d 756, 264 P.2d 513), but the substantive point raised by petitioner is itself incorrect. Jeopardy does not attach, under California law, until a defendant has been placed on trial before a court of competent jurisdiction upon a valid indictment or information before a jury duly impaneled and charged with his deliverance (Jackson v. Superior Court, 10 Cal.2d 350, 74 P.2d 243, 113 A.L.R. 1422). The dismissal of the original complaint at the preliminary hearing did not operate as res judicata (See: People v. Prewitt, 52 Cal.2d 330, 341 P.2d 1).

The more substantial point raised by petitioner relates to the allegedly illegal search and seizure proceedings prior to his arrest. The importance of said point stems from the recent decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, by which the exclusionary rule, previously applied only to the Federal Government under the terms of the Fourth Amendment (Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782), was held applicable to the States as well. For purposes of the instant petition, however, Mapp is significant for what it says by implication, rather than expressly. Two points arise in connection with petitioner's petition.

1. It appears to this Court that the logical interpretation of Mapp is that the Fourth Amendment has now been incorporated into the Fourteenth Amendment, and that the law of search and seizure has now been nationalized. The specific holding of Mapp, which leads this Court to the above conclusion, is that,

"Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the
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