People v. Aleria

• Decision Date: 26 June 1961
• Docket Number: Cr. 7179
• Citation: 14 Cal.Rptr. 162,193 Cal.App.2d 352
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joey Anthony ALERIA, Defendant and Appellant.

Page 162

14 Cal.Rptr. 162

193 Cal.App.2d 352

PEOPLE of the State of California, Plaintiff and Respondent, v. Joey Anthony ALERIA, Defendant and Appellant.

Cr. 7179.

District Court of Appeal, Second District, Division 2, California.

June 26, 1961.

Hearing Denied Aug. 23, 1961.

Robert A. Barnett, Los Angeles, under appointment by the Court, for appellant.

Stanley Mosk, Atty. Gen., Jack E. Goertzen, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant appeals from judgment of conviction of possession of narcotics, rendered after a non-jury trial. He was arrested in the lobby of the Chelsea Hotel at 504 South Bonnie Brae Street, Los Angeles, while under the influence of a narcotic, and his room in the hotel was forthwith searched revealing seven capsules of heroin and a hypodermic outfit.

Appellant's counsel asserts as the sole point on appeal the following: 'Where the accused is arrested in the lobby of his hotel for being under the influence of narcotics, to search his hotel room without warrant as an incident to the arrest and use the contraband therein seized to convict the accused of possession of narcotics is unreasonable, illegal and violative of' his constitutional rights.

It appears from the evidence most favorable to respondent that the police officers who effected the arrest on October 22, 1959, had received information and observed facts concerning appellant which justified a robust suspicion that he was engaged in possessing and selling narcotics; that he was himself an addict and probably was living in the Chelsea Hotel. On the afternoon of October 22nd Officers Dorrell and Fessler went to that hotel and exhibited to the clerk on duty a photograph of defendant and the clerk said he lived in the hotel; at that moment descending footsteps on the stairs were heard and defendant appeared some three to five feet away from the officers. He was carrying the key to room 143. Officer Dorrell testified: 'At that time he appeared to be under the influence of narcotics. * * * Well, his mouth was partly open, his eyes appeared to be partly closed, as if he was in a stuporous condition.' Also: 'He was a known user of narcotics to me, because I had examined him on July the 5th, 1959 and found, by the examination of his legs, that he was using narcotics. And he also stated to me at that time that he was a user of narcotics. And at the time I arrested him on October 22, I knew him as a user of narcotics and the symptoms that I observed coupled with the knowledge of his background, I was of the opinion that he was under the influence of narcotics at that time.' Asked by the officer whether he lived in the hotel defendant said 'No.' The clerk in answer to a similar question said, 'Yes, he is in room 143,' and that he was registered as Sinatra (which, of course, was a false name). Defendant, in the immediate presence of the clerk and the officers, made no response to this. Though they had no warrant of any kind they then arrested defendant, took the key from his hand, escorted him up one flight of stairs and thence 20 to 30 feet down the hall to room 143, unlocked it with defendant's key and searched the entire room, finding the narcotics above mentioned. Defendant himself testified that he was then living in room 143. Neither he nor the clerk gave the officers permission to enter it.

After being brought into room 143 defendant told the officers that that was his room but they would not find anything; "Go ahead and search it." (He was at that time under arrest and in handcuffs.) Search they did, finding the seven capsules in a suitcase. Asked if they were his and if there were more, defendant said, "That is all there is. I don't have any more." Then a box containing two capsules of heroin was found and defendant said, "That is all there is, I don't have any more." When entering the Police Station: "I have got some more stuff wrapped up with that hype outfit." Unwrapping the hypodermic outfit Dorrell found a rubber containing more heroin, and defendant observed, "There is about three and a half grams there. I bought it yesterday, I paid $55 for it.' He said he had just had a fix about an hour before that. He said he used about three or four caps of narcotics a day.'

In a discussion of a defense objection to receipt in evidence of the heroin and hypodermic outfit which had been revealed by the room search, the prosecutor said: '* * * and in addition, Officer Dorrell's observation of the defendant's condition on the date of this arrest, all these things gave them probable cause to make an arrest on October 22, 1959.' The court: 'Counsel has agreed to that. Now, go one step further and tell me what the answer is.' Defense counsel made no response to this but he later said: 'I realize that the officers have testified that they saw the defendant in this hotel lobby, it appeared to them he was under the influence of narcotics. Now, it is probable that that would be in my opinion probable--I will concede for this argument here at least--well, without conceding I will say it could be interpreted to be probable cause for arresting him at that time.' Appellant's brief on appeal makes no claim that the arrest itself was illegal and proceeds upon the tacit assumption that it was lawful.

Counsel comes to rest always upon the proposition that it was violative of appellant's constitutional rights to make a search at a distance from the place of arrest--up one flight of stairs and down the hall 20 to 30 feet.

Appellant's chief reliance is Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, which involved illegal sale of cocaine by several conspirators. A government agent saw such a transaction take place at the home of one of them named Alba. They searched not only his premises but also the residence of co-conspirator Agnello which was several blocks away from the scene of the crime and arrest. This was held violative of Agnello's constitutional rights. The court said, in part (269 U.S. at pages 30-31, 46 S.Ct. at page 5): 'The legality of the arrests, or of the searches and seizures made at the home of Alba, is not questioned. Such searches and seizures naturally and usually appertain to and attend such arrests. But the right does not extend to other places. Frank Agnello's house was several blocks distant from Alba's house, where the arrest was made. When it was entered and searched, the conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of the arrests.' This phrasing has created a plethora of decisions which turn upon the question of distance between place of arrest and place of search. Our courts have struggled with this mechanistic test but have concluded that distance is neither the sole nor the controlling consideration in most instances. The said Supreme Court, in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, used this language: 'This Court has also pointed out that it is only unreasonable searches and seizures which come within the constitutional interdict. The test of reasonableness cannot be stated in rigid and absolute terms. 'Each case is to be decided on its own facts and circumstances.'' 331 U.S. at page 150, 67 S.Ct. at page 1101. 'The opinions of this Court have clearly recognized that the search incident to arrest may, under appropriate circumstances, extend beyond the person of the one arrested to include the premises under his immediate control.' 331 U.S. at page 151, 67 S.Ct. at page 1101. 'Nor can support be found for the suggestion that the search could not validly extend beyond the room in which petitioner was arrested.' 331 U.S. at page 152, 67 S.Ct. at page 1102.

United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 434, 94 L.Ed. 653: 'What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are 'unreasonable' searches and, regrettably, in our discipline we have no ready litmuspaper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.'

People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17: 'There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances [citations]--and on the total atmosphere of the case.'

The following factors are usually determinative,--whether the search is actually incidental to the arrest in point of both time and place, whether arrest and search form part of a continuous transaction, whether the place of search is under the actual or probable control of the suspect. The truth of the foregoing statement is exemplified by the following cases.

People v. Dixon, 46 Cal.2d 456, 459, 296 P.2d 557, recognizes control and proximity of a garage as sufficient warrant for search of same incident to a lawful arrest within defendant's residence. So do People v. Bernal, 174 Cal.App.2d 777, 781-782, 345 P.2d 140 and Trowbridge v. Superior Court, 144 Cal.App.2d 13, 300 P.2d 222; in the latter the arrest was made just outside defendant's apartment. In People v. Lawrence, 149 Cal.App.2d 435, 445, 308 P.2d 821, it appeared that the arrest was made in the entry hall to defendant's apartment and the court upheld an immediate search of her said residence as being a proper one made in the vicinity of the arrest and in an area under defendant's control. Where defendant was arrested in his driveway, a search of his house was held justifiable in People v. Montes, 146 Cal.App.2d 530, 531-532, 303 P.2d 1064.

People v. Gorg, 45 Cal.2d 776, 781, 291 P.2d 469, 472, holds that a search of a man's rented room was not lawful where 'it was not incidental to the arrest, for it was at a distance from the place thereof and was not contemporaneous therewith.' The separation in point of time was 48 hours and the search in question was made after one search had been completed...