People v. Amado

• Decision Date: 23 October 1962
• Docket Number: Cr. 8210
• Citation: 25 Cal.Rptr. 539,208 Cal.App.2d 780
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Benny Estrada AMADO, Defendant and Appellant.

Page 539

25 Cal.Rptr. 539

208 Cal.App.2d 780

The PEOPLE of the State of California, Plaintiff and Respondent, v. Benny Estrada AMADO, Defendant and Appellant.

Cr. 8210.

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

Oct. 23, 1962.

Howard E. Beckler, Hollywood, for appellant.

Stanley Mosk, Atty. Gen., George W. Kell, Deputy Atty. Gen., for respondent

HERNDON, Justice.

This is an appeal by Benny Estrada Amado from a judgment convicting him of the possession of heroin in violation of section 11500 of the Health and Safety Code, and from the order denying his motion for a new trial. Appellant was also found to have suffered a prior conviction for the same offense and sentenced to state prison for the term prescribed by law. He advances only two contentions as the grounds upon which he seeks a reversal of the judgment: (1) that the incriminating evidence against him was obtained by means of an unlawful search and seizure; and (2) that certain of the testimony of the investigating police officers in inherently improbable.

Three Los Angeles police officers testified that they had received information from various informants that the appellant was dealing in heroin. On August 24, 1961, at approximately 4 p. m. a confidential informant, whose reliability was unknown and whose identity the officers declined to reveal, advised the officers that appellant then had narcotics at his residence. At approximately 5 o'clock p. m. the officers arrived at appellant's residence for the purpose of seeking an interview with the suspect. Clearly this was in pursuit of both their right and their duty. (People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852; People v. Martin, 45 Cal.2d 755, 761, 290 P.2d 855.)

Upon arrival, the officers encountered appellant's brother who was seated upon the front steps. They identified themselves and stated the purpose of their call. The brother also identified himself and advised the officers that he lived in the house. He was then asked, 'Can we go in the house and talk about it?' He answered, 'Yes' or 'Sure' and led the way inside. The brother was then asked whether appellant or anyone else was home at the time. He 'shook his head in negative fashion'. The officers, however, heard male voices coming from an adjoining bedroom, the door of which was partially open. One of the officers went to the door, looked inside and observed appellant and another man seated on the bed 'cutting' heroin. The officer thereupon entered the bedroom and placed appellant under arrest. Appellant admitted his ownership of the narcotics and, upon being asked whether there were any more in the house, he produced from his pocket three condoms also containing heroin.

Obviously, the entry of the officers into the residence was proper since consent thereto had been given by a joint...