Nelson v. People of State of California

• Decision Date: 22 June 1965
• Docket Number: No. 19463.,19463.
• Citation: 346 F.2d 73
• Parties: Chester NELSON, Appellant, v. PEOPLE OF the STATE OF CALIFORNIA, Robert A. Heinze, Warden, et al., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

346 F.2d 73 (1965)

Chester NELSON, Appellant, v. PEOPLE OF the STATE OF CALIFORNIA, Robert A. Heinze, Warden, et al., Appellee.

No. 19463.

United States Court of Appeals Ninth Circuit.

May 26, 1965.

Rehearing Denied June 22, 1965.

Chester Nelson, in pro. per.

Thomas C. Lynch, Atty. Gen. of California, Doris H. Maier, Asst. Atty. Gen., Richard K. Turner, Deputy Atty. Gen., Sacramento, Cal., for appellee.

Before POPE, HAMLEY and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

Nelson appeals from an order denying his petition for a writ of habeas corpus. He is a California State prisoner, convicted in the California Superior Court, County of Los Angeles, of a violation of section 11530.5 of the California Health and Safety Code, a felony. It was also found that he had been convicted of a prior offense, and he was sentenced accordingly on June 19, 1962. His appeal to the California District Court of Appeal was unsuccessful. People v. Nelson, 1963, 218 Cal.App.2d 359, 32 Cal.Rptr. 675. A petition for habeas corpus, filed in the California Supreme Court, was denied, without opinion, on October 16, 1963. Nelson then filed the present petition in the United States District Court. That court issued an order to show cause, and a return and a motion to dismiss, a traverse and a supplemental traverse were filed. The District Court, without further hearing, ordered that the petition be dismissed. It denied a petition for a rehearing, but granted a certificate of probable cause.

Although he states it in many ways, Nelson's basic contention is that there was introduced against him at his trial evidence obtained in violation of his rights under the Fourth Amendment to the Constitution of the United States in that there was an unlawful search of his apartment and seizure of contraband by the police. He also claims that there was no probable cause for his arrest.

The record of Nelson's trial in the California Superior Court was before the District Court, and it shows the following facts: On the morning of February 15, 1962 Officer Loeber, a Los Angeles policeman assigned to the narcotics division, accompanied by Officers Drees and Beckman of the same division, and by Agent Greppin of the United States Customs Service, went to an apartment building located at 1974 Raymond Street in Los Angeles. They proceeded to Apartment 208 and knocked on the door. One Virginia Thomas, who was later named as a co-defendant with Nelson in the State information, opened the door. Loeber showed his badge and told her that he and Greppin were police officers and wanted to talk to her. She told them to come in, which they did, entering a large room which was a combination living and bedroom. At one end of this room was a kitchen and at the other a bathroom and a dressing alcove. Loeber told Thomas that the police knew that she and her boy friend were selling narcotics from the apartment, which she denied. Loeber then asked her if she would mind if he and Greppin searched the premises, and she said: "No, go ahead." Loeber and Greppin went into the kitchen, where they saw, through the glass door of a cupboard, a brown package that appeared to be in brick form, and several white packages. Loeber opened a corner of the brown package and found that it contained a leafy substance, marijuana.

Some time later, Nelson and another man arrived at the door of the apartment. The police opened the door and one of them asked him if he was "Chester"¹ and whether he and Thomas lived there together. He said that he was, and that they did. He was then arrested and asked about the marijuana. He stated that it was all that he had, and that Thomas didn't know anything about it. Later on the same day, at the police station, he said that the marijuana found in the apartment was the last of 38 pounds that he had had buried since 1958 and that he had been gradually selling off in "cans" and "half cans."

The package or brick of marijuana, and the other packages, were produced at the trial and received in evidence. Loeber testified that he had been assigned to the narcotics detail for a little over four years, that he was familiar with the manner in which marijuana is commonly packaged in the illegal marijuana traffic in Los Angeles, that he had seen marijuana packaged in this manner before, and that such a package is commonly called a "kilo brick," or "key." He testified that this is the common method used by a wholesaler in selling to a retailer or to a sub-seller.

Miss Thomas took the stand in her own behalf and testified that Loeber correctly and truthfully stated the facts about arresting her, and the conversations he had with her. She denied that she knew that the marijuana was in the apartment. She also testified that Nelson had rented the apartment about two months before the arrest, that she had moved in with him at that time, and that she and he were living there "sort of as husband and wife." She testified that he lived there continuously up to the time of the arrest.

Nelson also took the stand. He testified that in February, 1962, at the time of the arrest, he was living at another address, the home of his brother. He said that he moved out of the apartment on Raymond Street about the 27th or 28th of January. However, he did not take all of his clothing with him. He denied that the marijuana was his. He paid the rent for the apartment, and he and Thomas had lived there together up to the latter part of January. He said that he had rented the apartment during the preceding June and that she moved in with him about August, July, August, or September; he was not sure. In response to a question as to whether he and Thomas were living in the apartment as husband and wife, he said: "Being the situation as it was, her and I, I felt it was assumed it would be man and wife. At least I felt that way about her." He testified that she had the keys. The fact that Thomas lived with Nelson "at his house" was corroborated by a witness, Conner, called by Nelson.

Nelson was represented by a deputy Public Defender of Los Angeles County. Thomas had separate counsel. After Loeber had completed his direct testimony, he was first cross-examined by counsel for Thomas and was asked whether, when he went to the apartment, he had any information that Mr. Nelson was dealing in narcotics out of that apartment. Nelson's counsel objected on the ground that the subject was immaterial. This objection was sustained, and the matter was not further explored. At no time during the trial, either by objection to any testimony, or by motion, or in any other way, did Nelson's counsel raise or even suggest the question as to whether the search that led to the discovery of the narcotic in Nelson's apartment, or his arrest, in any way violated any of his constitutional rights.

On Nelson's appeal, this question was raised and argued. The State argued that the question was not properly before the court, not having been raised in the court below, but it also argued the merits of the question. The District Court of Appeal, as appears from its opinion, passed upon the question and held that Loeber's testimony was sufficient to sustain a finding by the trial court that Thomas freely consented to the entry and subsequent search and that Nelson's constitutional rights had not been violated.

In his habeas corpus petition, Nelson alleges certain things that do not appear in the trial transcript. These allegations are scattered throughout his petition, traverse and supplemental traverse, and are frequently repeated, but with variant phrasing. The following is necessarily an abbreviated summary of them: The officers, before they went to the apartment, had a tip from an informer that narcotics were being sold from the apartment. They did not, however, have sufficient information to constitute probable cause, either for a search warrant or an arrest or a warrant of arrest. They did not seek, and did not have, either type of warrant.² Thomas denies that she gave the officers permission to search. She knew nothing about the law; she was placed in fear of her life, and of arrest and bodily harm, by the officers, and if she did tell them to go ahead and search, she was coerced into doing so. The officers went to the apartment for the purpose of making a search. They entered under color of office, and by subterfuge, and this, too, coerced Thomas. She was a weak and defenseless woman, and, if she gave permission, she did not do so freely or voluntarily, but only in submission to the authority of the officers. She was cross-questioned by them until her will was overborne, she was nervous, and wept; she was under mental strain and did not know what she had said. She was not permitted to call friends, nor an attorney. It is not claimed, however, that she either wanted or asked to call anyone.

The District Court in this habeas corpus proceeding did not reach the merits of Nelson's contention as to his constitutional rights. In an opinion, it pointed out that under California law it is well settled that unless a claim that evidence was illegally obtained is raised by appropriate objection, it may not be raised for the first time on appeal, citing People v. Lyons, 204 Cal.App.2d 364, 22 Cal.Rptr. 327; People v. Pruitt, 155 Cal.App.2d 585, 318 P.2d 552; People v. Brittain, 149 Cal.App.2d 201, 308 P.2d 38, and People v. Kelsey, 140 Cal.App.2d 722, 295 P.2d 462. The court concluded from its examination of the transcript that Nelson had deliberately by-passed the required state procedure. It pointed out that on three separate occasions at the trial the People offered in evidence articles obtained from the search of the apartment, and that on each occasion there was no objection. It also noted that Nelson's counsel had objected, on the ground of immateriality, to an inquiry which would have a bearing on the question of probable cause, and that, if probable cause had been made an issue, additional testimony,...