People v. Bates

• Decision Date: 02 October 1958
• Docket Number: Cr. 3512
• Citation: 330 P.2d 102,163 Cal.App.2d 847
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Respondent, v. James BATES, Appellant.

Page 102

330 P.2d 102

163 Cal.App.2d 847

The PEOPLE of the State of California, Respondent, v. James BATES, Appellant.

Cr. 3512.

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

Oct. 2, 1958.

Harry A. Jackson, Jr., San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

Defendant James Bates was charged and convicted, after a trial before the court without a jury, of illegal possession of heroin. Defendant appeals from the judgment of conviction. His basic contention is that the uncontradicted evidence of his guilt was secured by an illegal search and seizure and was therefore inadmissible against him. There is no merit in the contention.

On and prior to September 16, 1957, one George Kostrikin had been under surveillance George Kostrikin had been under surveillance officers. Shortly before noon on September 16, 1957, the police observed defendant sitting in an automobile with one Swinger in front of a bowling alley on Mission Street, in San Francisco. Kostrikin entered the Swinger car, and that automobile was then driven about a block from the bowling alley and Kostrikin got out, walked back to his car and drove away. Bates and Swinger then also drove away. Later that afternoon Kostrikin was arrested for a narcotics offense.

The police knew where Kostrikin was living with one Nancy Francis. On the evening of September 16, 1957, four police officers proceeded to that apartment. One of the inspectors, Kerrigan by name, knew Miss Francis, and, when she came to the door, Kerrigan introduced her to the other officers and told her that they wanted to talk with her. Miss Francis invited the officers into the apartment. There was another unidentified young lady there.

It should be mentioned that Kerrigan was not a witness at the trial, but Daniel Casey and James Steffensen, narcotic agents, were. Casey testified that Kerrigan told the officers, in the presence of Miss Francis, that he had known her for several years, that she had cooperated with the police department in the past, and that her services had proven very reliable. The other officers, with the exception of Kerrigan, had had no prior experience with Miss Francis.

Both Casey and Steffensen testified that after the officers entered the apartment Miss Francis cooperated wholeheartedly with the police, and that no force or compulsion was used against her. Miss Francis was not placed under arrest.

Casey testified that he and Officer Kerrigan went into the kitchen of the apartment with Miss Francis. Kerrigan told her that Kostrikin had been arrested for a narcotic violation, and asked her if she would tell them what she knew about Kostrikin and his associates. Miss Francis stated that she would cooperate. In response to questions from the officers she stated that she knew James Bates, and knew that he was a runner or peddler for Kostrikin. She said that Kostrikin would give Bates narcotics on consignment and, after Bates sold them, he would bring the money to Kostrikin. She then stated that she knew that that very morning Bates had been given some narcotics by Kostrikin on Mission Street in front of the Sportsman's Bowl. This was the very transaction observed by the officers earlier that day. Miss Francis also told the officers that Bates customarily kept the narcotics on his person and did not usually leave them at his residence. She did not know where Bates lived, but she did know that he spent a lot of time at Ray Swinger's house. She agreed to introduce an undercover agent to Bates in an attempt to develop a case against him.

At about this stage of the conversation the telephone in the apartment rang. Miss Francis answered it and agent Steffenson monitored the call by listening at the earpiece held by Miss Francis. Steffensen heard the voice at the other end of the line say: 'This is Bates. I understand George has been busted. I have got stuff on me. What will I do with it?' The person also stated that he was calling from Swinger's house. At the direction of the officers Miss Francis told Bates to stay where he was and that she would call him back. At this time two additional officers had arrived, so that there were six officers in the apartment.

Bates testified and admitted that he had telephoned to Kostrikin's apartment that day and had talked with Nancy. He stated that he had learned that Kostrikin had been arrested and called to ask about him. He testified that Nancy told him that George was then out and would be right back. Bates asked Nancy to have George call Ray's house when he returned. He did not tell Nancy that he had some 'stuff.'

Miss Francis, who did not testify, had a police record and had been an addict.

The police officers then proceeded to Ray Swinger's house, the address of which was known to them. Mrs. Swinger came to the door and admitted them. From the door the officers could see Bates seated in a chair. The police came in and placed Bates under arrest. The chair in which he was sitting was searched and an envelope containing a hypodermic outfit and 19 bindles of heroin were found. Bates then stated: 'I don't want to get these other people in trouble. That stuff is mine.'

The officers did not have a warrant to arrest Bates or a warrant to search the Swingers' premises.

Appellant challenges the validity of his arrest and search, contending that the information gained from Nancy Francis was not a sufficient basis to constitute reasonable cause for the arrest without a warrant. Under Penal Code section 836, subdivision 3, an officer may lawfully arrest a person without a warrant when the officer has reasonable cause ^* to believe that the person has committed a felony. In the instant case we think the finding that reasonable cause existed is amply supported.

In the first place, it is now settled law that reasonable cause to justify an arrest or search may consist of information gained from others, and is not limited to evidence that would be admissible at the trial on the issue of guilt. People v. King, 140 Cal.App.2d 1, 294 P.2d 972; Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36. The test is, did the officer have reasonable cause to make the arrest--would a reasonable man, possessing the information possessed by the officer, reasonably believe that the person involved had committed a felony? This information may be, and usually is, evidence that would be hearsay on the issue of guilt. It may consist of information obtained from an informant known to the officer to be reliable and whom the officer in good faith believes to be trustworthy. People v. Rixner, 157 Cal.App.2d 387, 321 P.2d 91, and cases there cited. In most cases the informant must not only be known to the officer, but the officer must have had sufficient dealings with the informant to give him reasonable cause to believe that the informant is reliable and that the information given by him is truthful. It is only in the case of a pressing emergency that an arrest or seach without warrants may be justified based upon information...