People v. Bock Leung Chew, Cr. 3178

• Decision Date: 19 June 1956
• Docket Number: Cr. 3178
• Citation: 298 P.2d 118,142 Cal.App.2d 400
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California. Plaintiff and Appellant, v. BOCK LEUNG CHEW, Defendant and Respondent.

Page 118

298 P.2d 118

142 Cal.App.2d 400

The PEOPLE of the State of California. Plaintiff and Appellant, v. BOCK LEUNG CHEW, Defendant and Respondent.

Cr. 3178.

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

June 19, 1956.

Rehearing Denied July 3, 1956.

Hearing Denied July 18, 1956.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for appellant.

Benjamin M. Davis, San Francisco, for respondent.

DOOLING, Justice.

Defendant was charged with possessing a preparation of yen shee in violation of Health and Safety Code, § 11500. His motion to set the information aside, Pen.Code, § 995, was granted on the ground that all of the evidence against him was obtained by an illegal search and seizure in violation of his constitutional rights. The People appeal.

At the preliminary hearing Police Officer McKinley testified that on the evening of April 5, 1955, at about 9:15 p. m. he and another police officer happened to be in an apartment building located at 823 Grant Avenue. They had never been in the building before and there was nothing suspicious about the place. On their way to another apartment in this building they walked by the door of Apartment 5. One of the officers testified, 'We walked by the door and smelled--and it smelled of opium.'

The officers were admitted to the apartment by respondent's wife who was the only person present therein at the time. Respondent's wife did not speak English and did not understand the officers when they talked to her.

Upon entering a room of the apartment the officers became aware of a very strong smell of opium. They searched the premisses and under the kitchen cupboard found what later was identified as yen shee in a coffee can. A chemist for the Bureau of Narcotics Enforcement testified that yen shee is the residue from smoking opium. Between 9:15 and 11:00 p. m. they saw no one enter or leave the premises and during that perior of time they searched the apartment. At 11 p. m. the officers called an interpreter so that they could talk with respondent's wife.

The officers had neither a search warrant nor a warrant for anyone's arrest in Apartment 5.

Respondent's name and identification was obtained from telephone bills found in his apartment. He was arrested the following day about 4:30 p. m. at the Palace Hotel where he worked in the pantry. At that time respondent told the arresting officers that he found the yen shee outside his window when he moved into the apartment. He took it into his apartment and had tried smoking it once but was unable to 'roll a pill' and had given it up. He stated that his wife had nothing to do with it and that the contraband belonged to him.

Where the question of the legality of an arrest or of a search and seizure is raised at the preliminary hearing the defendant makes a prima facie case when he establishes that an arrest was made without a warrant or that private premises were entered or a search made without a search warrant. The burden is then on the prosecution to show proper justification. Badillo v. Superior Court, 46 Cal.2d 269, 294 P.2d 23.

Police Officer McKinley testified: 'We walked by the door [of respondent's apartment] and smelled--and it smelled of opium.'

Respondent argues that this testimony must be construed to mean that only the door itself smelled of opium. We feel that this is too narrow a construction. The language used may be reasonably construed to mean that as the officers passed the door they detected the odor of opium. The basic question presented is: When officers detect the odor of a substance the possession of which is made a felony, apparently coming from an apartment, does this justify their making an immediate entrance into and search of the apartment without first procuring a warrant. Since the possession of opium is a felony officers who detect the odor...