People v. Burke, Cr. 3848

CourtCalifornia Court of Appeals
Writing for the CourtSULLIVAN; BRAY, P. J., and MOLINARI
Citation24 Cal.Rptr. 912,208 Cal.App.2d 149
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Francis Lloyd BURKE, Defendant and Appellant.
Docket NumberCr. 3848
Decision Date03 October 1962

Page 912

24 Cal.Rptr. 912
208 Cal.App.2d 149
PEOPLE of the State of California, Plaintiff and Respondent,
v.
Francis Lloyd BURKE, Defendant and Appellant.
Cr. 3848.
District Court of Appeal, First District, Division 1, California.
Oct. 3, 1962.
Hearing Denied Nov. 28, 1962.

Page 913

[208 Cal.App.2d 152] Hartly Fleischmann, San Francisco, for appellant (under appointment of the District Court of Appeal).

Stanley Mosk, Atty. Gen., John S. McInerny, Joseph I. Kelly, Deputy Attys. Gen., San Francisco, for respondent.

SULLIVAN, Justice.

After a trial by jury, the defendant was convicted of violating section 11501 (transportation of heroin) and section 11531

Page 914

(transportation of marijuana) of the Health and Safety Code. The jury also found the charges of two prior convictions of felonies contained in the indictment to be true. Defendant appeals from the judgment.

On February 6, 1960, Officer Robert Martin of the San Francisco police department's narcotic bureau received information from one Mrs. Murray, the manager of the Malden Hotel in San Francisco, that one Nicolas Santos and a female, who had been registered and living in a room at the hotel since February 3, 'had been receiving a large number of visitors, Caucasian, oriental, and that she was becoming a little alarmed due to the amount of traffic.' Mrs. Murray reported that some of the visitors were 'unsavory characters' and, in addition, that on one occasion she overheard a telephone conversation between the occupant of the above room and an unknown male calling in to the hotel during which there was a discussion of 'two cans for fifteen cents,' meaning in narcotics jargon, two Prince Albert cans of marijuana for fifteen dollars.

Officer Martin and Officer Lawlor, also of the narcotic bureau, thereupon went to the hotel and in the company of Mrs. Murray went up to the room in question. Mrs. Murray [208 Cal.App.2d 153] knocked on the door and, upon receiving no answer, let the officers into the room, also going in herself. The officers made a cursory search of the room, found no contraband, but found various letters and postcards with southern California addresses and postmarks, an idenification reflecting the name Francis Burke, and other identifications reflecting the name Nick Santos.

The officers then requested information from the Los Angeles police department which replied that it had no record of Nick Santos.

On the following Monday, February 8, the officers returned to the hotel and again gained entrance to the room with the assistance of the manager who told them that the occupants had not returned in the interim. In the room they found a business card with the name of a detective sergeant of the Los Angeles sheriff's office and a phonograph record with the name 'Linda Ross' on it. Upon inquiry, they were advised by the Los Angeles sheriff's office that Linda Ross was in fact Linda Melby, age 17 and married; that in January she had been reported missing by her father; that she had left in the company of a Nicolas Santos but that her father had later heard she was staying at the Malden Hotel; that she had returned to Los Angeles; and that they had a file on a Nicolas Santos who lived in the Los Angeles area and was suspected of being involved in narcotic activities.

Officer Martin then contacted Mrs. Murray who advised him that the rent for the room was due on February 10 and agreed, on his request, to hold the room open. On Friday, February 12, she informed Martin of a long distance telephone call from Nicolas Santos, in which he told her that he and his wife would return to San Francisco on Saturday, February 13, and that he wanted her to keep the same room available for him. On Saturday morning Mrs. Murray telephoned Officer Martin stating that she had heard from Santos and that he and his wife were on the way to the hotel. Officers Martin and Lawlor thereupon went to the hotel where they were advised by the manager that the young lady in question had gotten out of an automobile driven by Santos and had gone up to the room.

The officers knocked on the door of the room and identified themselves. Linda Melby let them in. They told her they were conducting a narcotic investigation. She at first denied any knowledge of narcotics. Later she admitted that she had smoked marijuana and that her husband, Melby, had been arrested on a marijuana charge. She also said that between [208 Cal.App.2d 154] February 3 and February 6, she, together with Santos and another woman, had gone to a hotel across the street where some friends of Santos' had rooms and where she saw a quantity of bulk marijuana spread out on a table in the room. Upon inquiry of her as to a telephone call received by Santos 'pertaining to

Page 915

a couple of cans of marijuana,' she confirmed that Santos had received such a call and that there was a discussion about the sale of marijuana. It developed that Nick Santos was the defendant, Francis Burke.

Burke, alias Santos, had gone out to cash a check and the officers waited in the room for him. Officer Lawlor then went out to the police car to get a telephone listening device and while outside saw Burke, whom he recognized from previous descriptions, parking his car near the hotel. Officer Lawlor returned to the hotel and, after seeing the defendant enter, went back into the room to wait for him. Officer Martin left the room and waited in the hallway.

The defendant knocked on the door and Officer Lawlor opened it. At about the same time, Officer Martin came up behind the defendant and tapped him on the shoulder. The officers identified themselves. Martin and the defendant entered the room. Martin made a search of the defendant's person and found an empirin compound bottle containing 22 capsules of heroin and an envelope containing seeds and other fragments of marijuana. The record is susceptible of a reasonable construction that the defendant was arrested inside the room. Martin questioned the defendant about the substance in the capsules and the defendant replied that it was sugar, that he had purchased both the capsules and the so-called 'sugar' in Los Angeles, and that he had filled the capsules with the 'sugar.' The defendant insisted the substance was sugar even after Martin in the defendant's presence made a field test showing that it was heroin. At the same time, the defendant claimed that he did not know that the substance in the envelope was marijuana.

Burke was further interrogated on the way to, and upon arrival at, the city prison. He persisted in claiming that the white powder in the capsules was sugar and that he did not know the other substances were marijuana.

Lawlor then took the car keys which had also been found in the search, and made a search of the defendant's automobile. In it he found a vial and a large jar, both with remnants of marijuana, and a pipe with marijuana in it.

At no time did the police officers have a warrant for the [208 Cal.App.2d 155] defendant's arrest or a search warrant for the search of his hotel room or automobile. The police officers further admitted that prior to her first communication with them on February 6, Mrs. Murray, the hotel manager, was unknown to them and had never been an informant before.

At the trial, expert opinion evidence was introduced by the People establishing that the substances found in the above-mentioned containers were hereoin, marijuana seeds and traces of marijuana. The various containers and their contents, uncovered by the search of the defendant's person and automobile, were all admitted in evidence over defendant's objections and after a hearing thereon before the court outside the presence of the jury.

The defendant testified at the trial that during the search of his person, the officer took all of his papers and receipts and 'all of a sudden he had the [marijuana] envelope in his hand.' He admitted it could have been among the papers. He denied ever possessing heroin. He admitted going to the hotel across the street but denied it was to discuss a transaction involving marijuana. He admitted that he 'transported those sugars' from Los Angeles.

We are presented with three contentions on appeal: (1) That the contraband on the defendant's person and in his automobile was discovered as the result of an illegal search; (2) that the defendant was not properly convicted of transporting narcotics; and (3) that the trial court denied defendant his right to compulsory process for the production of witnesses. We conclude that none of these contentions have merit.

The applicable rules of law are well settled. Reasonable cause to justify an arrest or search may consist of information received from others and is not limited to evidence that would be admissible at the

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trial on the issue of guilt. (People v. Boyles (1955), 45 Cal.2d 652, 656, 290 P.2d 535; Willson v. Superior Court (1956), 46 Cal.2d 291, 294, 294 P.2d 36; People v. Bates (1958), 163 Cal.App.2d 847, 851, 330 P.2d 102.) In Willson v. Superior Court supra, it was said: 'Although information provided by an anonymous informer is relevant on the issue of reasonable cause, in the absence of some pressing emergency, [citation], an arrest may not be based solely on such information, [citations], and evidence must be presented to the court that would justify the conclusion that reliance on the information was reasonable. [Citation.] In some cases the identity of, or past experience [208 Cal.App.2d 156] with, the informer may provide such evidence, [citation], [footnote omitted] and in others it may be supplied by similar information from other sources or by the personal observations of the police.' (46 Cal.2d at pp. 294-295, 294 P.2d at p. 38.) Thus, as it was held in People v. Goodo (1956), 147 Cal.App.2d 7, 9, 304 P.2d 776, in the absence of 'some pressing emergency' (Willson v. Superior Court, supra), an arrest and search may not be based solely on information received...

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27 practice notes
  • People v. Cooper, Cr. 4233
    • United States
    • California Court of Appeals
    • May 24, 1965
    ...294 P.2d 36; People v. Bates (1958) 163 Cal.App.2d 847, 851, 330 P.2d 102; People v. Burke (1962) 208 Cal.App.2d App.2d 149, 155-156, 24 Cal.Rptr. 912.) Here the evidence set forth in detail by us at the beginning of this opinion establishes Page 493 the sale by sufficient circumstantial ev......
  • People v. Estrada, Cr. 4504
    • United States
    • California Court of Appeals
    • May 3, 1965
    ...v. Superior Court (1956) 46 Cal.2d 291, 294-295, 294 P.2d 36; People v. Swayze, supra; People v. Cedeno, supra; People v. Burke (1962) 208 Cal.App.2d 149, 155-156, 24 Cal.Rptr. 912; People v. Bates (1958) 163 Cal.App.2d 847, 851, 330 P.2d 102.) The reference to the sale of narcotics. Defend......
  • People v. Baker, Cr. 7920
    • United States
    • California Court of Appeals
    • October 21, 1970
    ...Cal.App.2d 663, 669-670, 52 Cal.Rptr. 654; People v. Machel (1965) 234 Cal.App.2d 37, 43-46, 44 Cal.Rptr. 126; People v. Burke (1962) 208 Cal.App.2d 149, 161, 24 Cal.Rptr. 912; People v. Cove (1964) 228 Cal.App.2d 466, 469, 39 Cal.Rptr. 535; Cf., however, People v. Hunt (1967) 250 Cal.App.2......
  • People v. Machel, Cr. 4539
    • United States
    • California Court of Appeals
    • April 29, 1965
    ...Michael (1955) 45 Cal.2d 751, 754, 290 P.2d 852, 854; People v. Martin (1955) 45 Cal.2d 755, 761, 290 P.2d 855; People v. Burke (1962) 208 Cal.App.2d 149, 161, 24 Cal.Rptr. 912.) Generally speaking a [234 Cal.App.2d 45] police officer may detain and question a person when the circumstances ......
  • Request a trial to view additional results
27 cases
  • People v. Cooper, Cr. 4233
    • United States
    • California Court of Appeals
    • May 24, 1965
    ...294 P.2d 36; People v. Bates (1958) 163 Cal.App.2d 847, 851, 330 P.2d 102; People v. Burke (1962) 208 Cal.App.2d App.2d 149, 155-156, 24 Cal.Rptr. 912.) Here the evidence set forth in detail by us at the beginning of this opinion establishes Page 493 the sale by sufficient circumstantial ev......
  • People v. Estrada, Cr. 4504
    • United States
    • California Court of Appeals
    • May 3, 1965
    ...v. Superior Court (1956) 46 Cal.2d 291, 294-295, 294 P.2d 36; People v. Swayze, supra; People v. Cedeno, supra; People v. Burke (1962) 208 Cal.App.2d 149, 155-156, 24 Cal.Rptr. 912; People v. Bates (1958) 163 Cal.App.2d 847, 851, 330 P.2d 102.) The reference to the sale of narcotics. Defend......
  • People v. Baker, Cr. 7920
    • United States
    • California Court of Appeals
    • October 21, 1970
    ...Cal.App.2d 663, 669-670, 52 Cal.Rptr. 654; People v. Machel (1965) 234 Cal.App.2d 37, 43-46, 44 Cal.Rptr. 126; People v. Burke (1962) 208 Cal.App.2d 149, 161, 24 Cal.Rptr. 912; People v. Cove (1964) 228 Cal.App.2d 466, 469, 39 Cal.Rptr. 535; Cf., however, People v. Hunt (1967) 250 Cal.App.2......
  • People v. Machel, Cr. 4539
    • United States
    • California Court of Appeals
    • April 29, 1965
    ...Michael (1955) 45 Cal.2d 751, 754, 290 P.2d 852, 854; People v. Martin (1955) 45 Cal.2d 755, 761, 290 P.2d 855; People v. Burke (1962) 208 Cal.App.2d 149, 161, 24 Cal.Rptr. 912.) Generally speaking a [234 Cal.App.2d 45] police officer may detain and question a person when the circumstances ......
  • Request a trial to view additional results

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