People v. Dabney

• Decision Date: 15 May 1967
• Docket Number: Cr. 5417
• Citation: 59 Cal.Rptr. 243,250 Cal.App.2d 933
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Israel DABNEY, Defendant and Appellant.

Page 243

59 Cal.Rptr. 243

250 Cal.App.2d 933

The PEOPLE of the State of California, Plaintiff and Respondent, v. Israel DABNEY, Defendant and Appellant.

Cr. 5417.

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

May 15, 1967.

Hearing Denied July 12, 1967.

Costello, Johnson, Kemp & DeCaro, Palo Alto, for appellant.

Thomas C. Lynch, Atty. Gen., San Francisco, Edward P. O'Brien, Don Jacobson, Deputy Attys. Gen., for respondent.

SIMS, Associate Justice.

Defendant has appealed from a judgment sentencing him to state prison following his conviction by a jury of possession of heroin in violation of the provisions of section 11500 of the Health and Safety Code, with an admitted prior conviction on February 10, 1956 of possession of narcotics in the State of Illinois.

Appellant contends that he was arrested without probable cause, and that the trial court erred in admitting into evidence the narcotics discovered as a result of this arrest. He further, for the first time on this appeal, asserts that his admitted prior conviction cannot be used against him without a showing that he was represented by counsel or that he intelligently and effectively waived that right in the prior Illinois proceedings; and that, in any event, his prior conviction was a misdemeanor, not a felony, and cannot be used to increase his punishment for the present offense.

An examination of the circumstances attendant to appellant's arrest demonstrates that the trial court did not err in admitting in evidence the 'bindle' of heroin discarded by appellant.

Appellant's admissions at the trial, coupled with the absence of facts in the record to sustain his present contentions, preclude their consideration on this appeal.

Legality of the Arrest

'When, * * * the question of the legality of an arrest or of a search and seizure is raised either at the preliminary hearing or at the trial, 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, and the burden then rests on the prosecution to show proper justification. (Citations.)' (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23, 25.)

'(T)he search of defendant's person may be justified only if he was committing or attempting to commit an offense in the officer's presence, Penal Code, § 836, subd. 1, or the officer had reasonable cause to believe he had committed a felony. Penal Code, § 836, subd. 5.' (People v. Simon (1955) 45 Cal.2d 645, 648, 290 P.2d 531, 533; and cf. Pen.Code, § 836, as amended Stats.1957, ch. 2147, § 2, p. 3805.)

'Reasonable or probable cause for an arrest has been the subject of much judicial scrutiny and decision. There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances (citation)--and on the total atmosphere of the case. (Citations.) Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. (Citations.) Probable cause has also been defined as having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt. (Citations.) It is not limited to evidence that would be admissible at the trial on the issue of guilt. (Citation.) The test is not whether the evidence upon which the officer acts in making the arrest is sufficient to convict but only whether the person should stand trial. (Citation.)' (People v. Ingle (1960) 53 Cal.2d 407, 412--413, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580; see also People v. Talley (1967) 66 A.C. 363, 368, 56 Cal.Rptr. 492, 423 P.2d 564; People v. Garavito (1967) 65 A.C. 814, 817, 56 Cal.Rptr. 289, 423 P.2d 217; People v. Cockrell (1965) 63 Cal.2d 659, 665, 47 Cal.Rptr. 788, 408 P.2d 116; People v. Harris (1965) 62 Cal.2d 681, 683, 43 Cal.Rptr. 833, 401 P.2d 225; People v. Torres (1961) 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 366 P.2d 823; People v. Privett (1961) 55 Cal.2d 698, 701--702, 12 Cal.Rptr. 874, 361 P.2d 602.)

The facts pertinent to the issue of the legality of the arrest are as follows:

About midnight on January 8, 1965, four police officers went to 61 Del Mar Street, San Francisco, to search for William Schindler. Schindler was suspected of stealing a Stradivarius, and the police had received information from his brother, among others, that he was in hiding at the above address. ¹ The police had with them a felony warrant for Schindler's aerrest for grand theft, automobile (Pen.Code, § 487, subd. 3) and a misdemeanor warrant for his arrest for possession of drugs. In addition, a complaint had been signed and an application for a warrant was pending for his arrest for grand theft of the violin.

61 Del Mar was the residence of Jerry Hallie. It was the downstairs flat of a two-flat building owned by Hallie. Each of the flats in that building had a separate entrance on Del Mar, a separate rear door opening to the back yard, and a common front porch. The police knocked first at number 61. They testified that they knocked and rang the bell for a period of five to ten minutes, that they received no answer, that they observed some of the lights go out in the apartment, and that they could hear movement within.

The officers testified that they then rang the doorbell of the upstairs flat, number 69, and were given permission, by a man who answered and identified himself as the resident, to pass through to the back yard. Two of the police officers, Yasinitsky and Hurley, testified that they went upstairs, while Officer Dickson and the other officer waited on the front porch.

Yasinitsky and Hurley stated that they proceeded to the back door and that upon opening it, they were face to face with Hallie and appellant, who were standing on the back porch of the upper flat. Yasinitsky, who testified that he was known to Hallie from a previous arrest and from official visits, said that as soon as this confrontation occurred, Hallie, who had been holding a rifle, dropped it. The officers testified that they saw Hallie move and throw something toward two refrigerators that were on the back porch. Appellant, during this interval, was trying to hide behind one of the refrigerators.

Yasinitsky stated at trial that he feared the men might be armed. He therefore directed his attention to appellant, telling him to come out from behind the refrigerator while telling Hurley to pick up what had been discarded. Hurley picked up the object and showed it to Yasinitsky. Both officers testified it was a rubber prophylactic containing a powdery substance. The officers testified that since they knew narcotics were transported in this manner, and since they believed the powdery substance to be a narcotic after examining it, they placed Hallie and appellant under arrest.

Inspector Yasinitsky did not ask appellant any questions before he placed him under arrest. The officers took Hallie and appellant into the kitchen of the upstairs flat and conducted a pat search for weapons. Yasinitsky then directed Hurley to take the two men downstairs while he searched the back porch.

Hurley ordered the men to go downstairs, with appellant leading the way. There was a disturbance on the stairway involving Hallie. According to Officer Dickson, who was waiting at the foot of the stairway, appellant descended almost all the way and then let a small white piece of folder paper slip from his hand. This paper was identified as a 'bindle' containing heroin. Dickson testified he picked it up, opened it, observed its contents, and turned it over to Officer Hurley.

Appellant and Hallie testified that appellant had come to the Hallie home about midnight to pick up a television set that Hallie was repairing. They testified that the upstairs flat was occupied by four or five young women, that on a previous occasion the women had been bothered by intruders and that when they heard noises upstairs they proceeded to the upstairs flat via the back stairway to help the young ladies. Hallie testified that, although there was some knocking at the front door, Hallie knew his wife would answer it. He also testified that there were no lights on in the house except the kitchen light. Several other friends were gathered there. Both appellant and Hallie testified they had no knowledge of the presence of narcotics. Hallie testified that he had no knowledge of the gun.

Mrs. Hallie testified that she did not hear any knocking on the night in question because the television set was on. She testified that guests often gathered in the kitchen. She also testified that the young women who lived upstairs had been disturbed once some months before.

In People v. Privett, supra, the opinion states: 'While evasive conduct upon the approach of police officers may under proper circumstances justify an arrest and search (citations), the observed approach to a private home in the nighttime of a party of seven or eight roughly dressed men and their knocking on the door might reasonably lead the most innocent of persons to extinguish the lights hoping that they would depart, and their subsequent announcement that they were police officers might reasonably arouse a degree of skepticism that would lead the occupants to make no immediate response or indeed any response at all, except possibly to telephone for the aid of those whom they knew with certainty to be police.' (55 Cal.2d at p. 702, 12 Cal.Rptr. at p. 876, 361 P.2d at p. 604; and see People v. Cedeno (1963) 218 Cal.App.2d 213, 224--230, 32 Cal.Rptr. 246, and People v. Zabala (1963) 217 Cal.App.2d 550, 554--555, 31 Cal.Rptr. 712.)

It may be assumed that the failure to answer the door and the extinguishing of the lights gave the officers no right to take further action against appellant or his host in...