People v. Cahill, Cr. 1358

• Decision Date: 18 August 1958
• Docket Number: Cr. 1358
• Citation: 163 Cal.App.2d 15,328 P.2d 995
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Norman CAHILL, Defendant and Appellant.

Page 995

328 P.2d 995

163 Cal.App.2d 15

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Norman CAHILL, Defendant and Appellant.

Cr. 1358.

District Court of Appeal, Fourth District, California.

Aug. 18, 1958.

Thomas Whelan, San Diego, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

McCABE, Justice pro tem.

By an information defendant was charged with the possession of a narcotic in violation of section 11500, Health & Safety Code. From the judgment of conviction entered subsequent to a jury verdict of guilty, defendant appeals.

On September 2, 1957, the police department received information from the Chief Investigator, Naval Training Center, that several sailors had contracted a venereal disease at a particularly described house on K Street; the sailors were being contacted by a man in the downtown area and then taken to this house.

From the same source of information and on September 4, the police department received additional information concerning these activities together with the first name of the alleged prostitute, the description of the car used by the pimp, and the unlisted telephone number supplied to each participating sailor. The police department then obtained the address of the house, drove past it and thus determined the description of a white picket fence previously given by the informant fitted the appearance of the fence at the particular address.

On September 5, the police department enlisted the aid of a sailor and upon being supplied with information, the name Betty, and the telephone number, the sailor in the presence of a police officer telephoned Betty. An agreement was made, price predetermined, and Betty gave him directions on how to reach the house on K Street. A police officer who stood next to the sailor overheard the telephone conversation. In two cars, three police officers in plain clothes and the sailor then proceeded to the address given by Betty. The sailor was supplied with marked money. Upon approaching the address the police officers noticed (1) a car fitting the description of the car supposedly operated by the pimp, and (2) the house was the same as previous information and investigation had described. The sailor got out of the car in which he was riding and approached the house and entered it. One police officer went to the rear of the house, two officers remained in front for a period of a minute or two and then went into the house. Upon entering the living room they noticed a man later identified as Zeb, who was watching television. Their entrance did not disturb Zeb, and he made no objections. The officers located a bedroom, entered it and found a nude female on the bed, the seated sailor with his hat off and without his marked money. One of the officers arrested the nude female. She then disclosed the location of the marked money.

At no time did the officers have a search warrant, or information concerning narcotics at this address. To this point in the recitation of events, the officers did not know of the presence of anyone else in the K Street house except Zeb, the nude female and the sailor.

An officer was left in the bedroom with the female and sailor, and Officer Morse started through the house. Off the kitchen was a small room with an open door. In this small sparsely furnished room Officer Morse found the defendant lying on the bed partly clothed. Defendant was arrested for residing in a house of prostitution. The police officer who had been at the rear of the house was then admitted into the small room through a door leading to the outside rear of the house. No search of the small room was made at this time. Defendant was left in charge of the third officer. After the defendant and Zeb were transferred to the jail by uniformed officers called for that purpose, the third officer made a search of the small room. There is no direct evidence that anyone entered the small bedroom from the time defendant and the police officer left until it was searched. In making the search he looked under the bed and '* * * found a brown Manila sack at the north wall about half way in the middle of the bed at the head.' He testified: '* * * [T]his is the brown Manila sack I observed under the bed * * *.' There was no dust or lint on the floor or the Manila sack. At the time of trial an expert testified the contents of the Manila sack was marijuana. After finding the Manila sack and contents and later that night an additional charge of possession of narcotics was placed against defendant. At the jail and after the charge of possession of narcotics was placed against defendant an officer testified he, in the presence of defendant, removed the debris from the pockets of defendant's shirt and pants.

Witnesses for the defense testified that: On September 2, 1957, defendant rented the small room from Zeb, and only stayed there at night, eating his meals at a relative's home. Defendant testified and denied knowledge or ownership of the narcotics and that on September 3, two days before the arrest, upon permission granted by him, a woman had used his room and bed for a short time and then had changed the linen.

The debris from defendant's pockets and the sack containing marijuana were admitted to evidence over the objections of defendant. Upon this appeal defendant strongly urges that the evidence should not have been admitted because it was obtained through unlawful search and seizure.

Under the provisions of section 840, Penal Code, the officer could arrest for a misdemeanor when the offense was committed in his presence. An offense is in the view of the officer when his senses afford him knowledge that it is being committed. Whether the offense was committed in the presence of the officer is primarily a question for the trier of facts, and his findings should not be disturbed on appeal unless it is without support in the evidence. Elrod v. Moss, 4 Cir., 278 F. 123; United States v. Borkowski, D.C., 268 F. 408; Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453.

A police officer overheard the sailor's conversation with Betty in which the sailor was invited to the K Street house, and saw the sailor enter the K Street house at the address given by Betty. Under these facts the offense was completed in the presence of the police officer. See In re Chase, 119 Cal.App. 432, 434, 6 P.2d 577, which held the offense under section 318 Penal Code had not been completed until, as a result of an invitation, a visit was actually made.

The offense having been committed in the presence of an officer an arrest could be made. It was not necessary for the officers to exercise the authority given to them under section 844, Penal Code, because the officers merely opened an unlocked door and entered the premises without objections. This entry was made to make an arrest for a misdemeanor committed in the presence of an officer, and the officer had reasonable and probable cause to do so.

Reasonable cause for a search of the premises was sufficiently...