People v. Castro, Cr. 6713

• Decision Date: 17 December 1959
• Docket Number: Cr. 6713
• Citation: 1 Cal.Rptr. 231,176 Cal.App.2d 325
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of State of California, Plaintiff and Respondent, v. Robert Jesus CASTRO, Defendant and Appellant.

Page 231

1 Cal.Rptr. 231

176 Cal.App.2d 325

PEOPLE of State of California, Plaintiff and Respondent, v. Robert Jesus CASTRO, Defendant and Appellant.

Cr. 6713.

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

Dec. 17, 1959.

Hearing Denied Feb. 10, 1960.

Robert Jesus Castro, in pro. per.

Stanley Mosk, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

An indictment was returned against the defendant in two counts charging violation of section 11500, Health and Safety Code count I, possession of heroin, and count II, possession of marijuana. He was also charged with three prior convictions and with having served terms of imprisonment therefor. He admitted the prior convictions. Trial by jury having been duly waived, defendant was found guilty by the court on both counts and sentenced to the state prison for the term prescribed by law. He has appealed from the judgment of conviction.

Officer Aguirre, of the Los Angeles Police Department who had been assigned to the Narcotics Division for a number of years, was informed by Sergeant Moen, of the Glendale Police Department, that defendant was selling narcotics at 4010 Baywood Street, Los Angeles. Moen told Aguirre that he had received this information from an informant but he did not disclose the informant's identity.

On October 15, 1958, at approximately 9:45 p.m., Officer Aguirre, accompanied by several other officers, went to the above address. Upon approaching the door at 4010 Baywood, Aguirre noticed that there was a screen door which was closed. Behind this door was a large wooden door which was open all the way to the inside wall. The officer was able to see inside the room through the screen door. He there observed a table lamp on a combination radio-television set. This lamp contained a red light which illuminated well the top of the combination set and the area around it. Defendant was observed seated on a sofa. The officer heard music coming from the room. Further observation revealed that it was coming from the record player. On top of the combination set he saw a cellophane bag which contained a number of small pieces of balloons in the shape of a bindle. These balloons appeared to have the shape of capsules within them, and were recognized by the officer as common devices for the use or preparation and sale of narcotics. Aguirre had had special training in the detection of narcotics and the manner in which they were packaged and sold, and was also familiar with the use of toy balloons in the packaging and selling of narcotics. It was his experience that they were used for the purpose of packaging gelatin capsules, making smaller bindles for the purpose of both protecting them from moisture and segregating them in different quantities so that they could be easily sold on the street. This manner of packaging also made it easy to dispose of the narcotics instantly by swallowing them, as the balloons would prevent the destruction of the narcotics and their assimilation into the system. After making these observations, the officer rapped on the wooden portion of the door with the tips of his fingers and called out, 'Bobby.' This was the type of signal generally used by persons engaged in the narcotics trade. Defendant rose from the sofa, came to the door and inquired of the officer what he wanted. Aguirre identified himself as a police officer and informed defendant that he was under arrest for narcotics violations. Defendant again inquired as to what the police wanted with him. Aguirre repeated that they were police officers; that he was under arrest, and demanded that he open the door. Defendant responded by saying that he had done nothing, stepped back and slammed the front door shut. Officer Aguirre forced the doors and entered the room just as defendant was going toward the combination set. As defendant reached the set the officer grabbed him by the arm and pulled him back. The officer then recovered the cellophane bag with its bindle-shaped pieces of balloons, which contained capsules of heroin. Upon searching the premises, Officer Aguirre discovered a brown paper sack containing marijuana in the combination bedroom-dining room behind a picture on a cupboard.

Defendant offered evidence that the only light in his living room was a 25 watt bulb; that the lamp which contained it was not on the combination radio-television set but was on a table next to the front door; that from the side of the room opposite the combination set it was not possible to see any objects located on top of it. Defendant contends that the narcotics found in his home were inadmissible on the theory that they had been obtained under an illegal search and seizure, since the officers had no probable cause to arrest him. He argues that there was no probable cause for his arrest since the reliability of the informant was not shown, and that the officers should have obtained a search warrant as there was no pressing emergency for the arrest. There is no merit whatever in either of these arguments.

The reliability of the informant is not an issue where there is...