People v. Davis

• Citation: 231 Cal.App.2d 180,41 Cal.Rptr. 617
• Decision Date: 14 December 1964
• Docket Number: Cr. 4572
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. R. D. DAVIS, Defendant and Appellant.

Page 617

41 Cal.Rptr. 617

231 Cal.App.2d 180

PEOPLE of the State of California, Plaintiff and Respondent, v. R. D. DAVIS, Defendant and Appellant.

Cr. 4572.

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

Dec. 14, 1964.

Hearing Denied March 3, 1965.

Brian D. McGinty, Seaside (under appointment of the District Court of Appeal), for appellant.

Thomas C. Lynch, Atty. Gen., of California, Albert W. Harris, Jr., Michael R. Marron, Deputy Attys. Gen., San Francisco, for respondent.

SHOEMAKER, Presiding Justice.

This is an appeal by defendant R. D. Davis from a judgment convicting him of possession of heroin, in violation of Health and Safety Coce, section 11500.

On January 9, 1963, commencing at 11 a. m., the Oakland police had under surveillance the premises at 1422 Brush Street. They observed a car pull into its driveway, heard its horn sounded, and saw Freddie Harrington, known to the police as a dealer in and user of narcotics, alight from the car, start to enter the building, but then walk to a point beneath a second story window on the south side of the building, at which window appellant Davis appeared. Harrington raised his cupped hands toward the window and an unidentified arm threw a small white object out the window, which landed by Harrington, who picked it up, got in his car and left. Pursuit was instituted, which Harrington became aware of and took evasive action. He eluded the police for a short time but was finally stopped in his car, and although a search was made of Harrington and the car, no white object was discovered, but fresh injection marks were seen on Harrington's arms.

Next, Leon Johnson, who had worked with the police on narcotics cases as a special employee, was seen leaving the building. He was followed by the police and approached by them just as he was entering a grocery two blocks away. He made a throwing motion with his hand and the police recovered eight papers containing what appeared to be heroin.

Next, Irene Blackshear, who had been arrested by Oakland police on several occasions for narcotics violations, left the building and went to the corner of 15th and Brush, where she was shortly joined by Clifton Weems, who also had a record for narcotics, and who had come from the building. Weems was stopped within a few minutes and his arm showed fresh injections marks. Weems told the officers he had passed out from a narcotics injection while at 1422 Brush.

Irene Blackshear reappeared at 15th and Brush, where appellant and Curley Davis, a woman, joined her. The parties talked for five minutes, then appellant and Davis went to the building where appellant handed her some keys. Appellant went on his way toward 14th Street and Davis unlocked the door and entered the building.

Appellant was arrested a short distance away in a liquor store. A Nalline test given later that day indicated he was then under the influence of a narcotic. After arresting appellant, the officers went to 1422 Brush and knocked on the front doors, which was opened by Davis. Officer Prentice observed injection marks on her left inner elbow, concluded they were fresh and that she was then under the influence of narcotics, whereupon he arrested her and said, 'Let's go take a look at your room.' She then took them to Room 7 on the second floor, which was the same room in which appellant had been observed at the window. A search of the room turned up 13 bindles of heroin under the spread on the bed, and clothing of appellant and Davis in the closet.

The owner of the building testified that she had rented the room to appellant in November 1962, and that he had paid the rent for November, December and January to her.

Appellant testified that Curley Davis asked him to rent the room for her in October. He admitted paying the rent on the room and that he spent a occasional nignt there, but denied he occupied the room. He stated that he had gone to the room at approximately 9 a. m. on January 9, 1963, that Curley Davis was already there, and that Leon Johnson, Clifton Weems and Irene Blackshear arrived shortly thereafter. Freddie Harrington also arrived some 30 to 40 minutes later and asked if he could 'paper up some stuff.' Curley Davis gave Harrington a razor blade and he began cutting a sheet of writing paper into small squares. He then took a balloon from his pocket, poured out a quantity of white powder which appeared to appellant to be heroin, and folded the powder into the small squares of paper. Although Harrington offered appellant some of the powder, he refused it. Appellant then took the surplus scraps of paper to an incinerator located at the rear of the building and burned them. When he returned to Room 7, Harrington had left and appellant saw no evidence of any narcotics remaining in the room. Clifton Weems had passed out in a chair and appellant took him into the bathroom and revived him with cold water. When appellant returned to Room 7, Curley Davis informed him that Harrington was out in front. Appellant went to the window, and Harrington asked if he could borrow $15 for a few minutes. Appellant threw a $5 bill and a $10 bill out the window, and Harrington picked them up, got into his car, and drove off. Appellant denied using narcotics on January 9, 1963, but stated that he had received a heroin injection in Richmond on the previous day.

The jury, under its power to determine the credibility of a witness, had the right to accept or reject any or all of appellant's 'explanation.' It is, of course, quite evident that they rejected it almost completely. If the appellant were to accept this fact, then there would be but little for him to augue in support of a reversal of the judgment.

Appellant first contends that the trial court committed prejudicial error by admitting into evidence, over his objection, the 13 bindles of heroin taken from Room 7. Appellant asserts that these items were the product of an illegal search which cannot be deemed incidental either to his arrest or to the arrest of Curley Davis. ¹

In order to be 'incidental to an arrest,' a search must be limited to the premises where an arrest is made, must be contemporaneous with said arrest, must have a definite object, and must be reasonable in scope. (People v. Cruz (1964) 61 A.C. 959, 965, 40 Cal.Rptr. 841, 395 P.2d 889.) In the present case, it is apparent that the search of Room 7 was not incidental to appellant's arrest, since said arrest occurred several blocks from the premises at 1422 Brush Street, and the search was not contemporaneous therewith. (People v. Cruz, supra, at p. 964, 40 Cal.Rptr. 841, 395 P.2d 889.)

However, appellant's contention that the search was not incidental to the arrest of Curley Davis cannot be upheld.

In People v. Aleria (1961) 193 Cal.App.2d 352, 14 Cal.Rptr. 162 (cert. denied, 374 U.S. 832, 83 S.Ct. 1876, 10 L.Ed.2d 1055), the defendant was arrested in the lobby of a hotel by a police officer who had observed him had concluded that he was under the influence of narcotics. The officer then asked the defendant if he lived in the hotel, and the hotel clerk replied that he was in Room 143. When the defendant made no response, the officer took the key from his hand, escorted him up one flight of stairs and 20 or 30 feet down a hall to Room 143, unlocked the door with the defendant's key, searched the entire room, and found seven capsules of heroin and a hypodermic outfit. The court held that search was clearly incidental to the arrest in point of both time and place, and that the contraband was therefore properly received in evidence.

In his argument, appellant ignores the fact that the arresting officer told Miss Davis that he wanted to take a look at her room and that she immediately led him to Room 7, where both appellant's and her clothing were in the closet. Under such circumstances, the officer was entitled to conclude that Room 7 was under her immediate control, and it follows that a search of said room was a proper incident of her arrest.

Appellant next objects to the...