People v. Dickenson

• Decision Date: 23 November 1962
• Docket Number: Cr. 1820
• Citation: 26 Cal.Rptr. 601,210 Cal.App.2d 127
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Harold Eugene DICKENSON, Defendant and Appellant.

Page 601

26 Cal.Rptr. 601

210 Cal.App.2d 127

The PEOPLE of the State of California, Plaintiff and Respondent, v. Harold Eugene DICKENSON, Defendant and Appellant.

Cr. 1820.

District Court of Appeal, Fourth District, California.

Nov. 23, 1962.

Rehearing Denied Dec. 21, 1962.

Rehearing Denied Jan. 16, 1963.

George H. Chula, Santa Ana, and Russell E. Parsons, Los Angeles, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

STONE, Justice. ^*

A jury found defendant guilty of possession of a narcotic, violation of section 11500 of Health and Safety Code. He admitted a prior conviction for possession of narcotics. Defendant's motion for a new trial was denied; he was sentenced to the state prison; and this appeal from the judgment and from the order denying motion for a new trial followed. The motion for a new trial was filed subsequent to September 15, 1961, the effective date of the amendment to Penal Code, section 1237 abolishing appeal from an order denying a motion for a new trial in a criminal case, except in certain special circumstances which are not applicable here. Thus the appeal from the order denying motion for a new trial must be dismissed, as it was taken from a nonappealable order.

Preceding defendant's arrest, Sergeant Dodge, a San Diego Police Officer, received information from a federal guard at the Mexican border that an unidentified informer reported that two white males had obtained a quantity of heroin in Mexico, crossed the border with it and were proceeding toward San Diego in a bluish MG roadster bearing license No. PUG 319.

Sergeant Dodge picked up Officer Wilson and they drove in Dodge's private automobile along Highway 94 until they observed an MG bearing license number PUG 319. The officers pulled alongside the MG and Officer Wilson, after observing the facial expression and the eyes of defendant passenger, concluded that he was under the influence of a narcotic. The driver was ordered to stop the car, which he did only after Wilson displayed his gun. The two occupants were ordered out of the car, and one of the officers noticed that defendant was making swallowing motions. When asked if he were swallowing 'it' defendant did not answer, and an officer attempted to prevent defendant from swallowing. A scuffle ensued, during which defendant's breathing became labored, he turned blue and became semiconscious, apparently from suffocation. An officer removed a rubber contraceptive containing heroin, from defendant's throat, his breathing resumed and his color returned. Defendant was charged with possession of heroin, tried, and found guilty.

Defendant does not deny possession of the narcotic. To quote the statement of his counsel in the trial court, 'We are not denying that this is heroin, that we had the heroin, it was in our possession, the only question we are going into at this time was the stopping and the force used in removing it from him.' Defendant's position on this appeal is essentially the same except that he has, additionally, alleged errors occurring during the course of the trial. His contentions are: '(I) It is reversible error to try the question of probable cause for arrest, search and seizure before the jury. (II) The defendant's arrest, search and seizure was a violation of due process of law. (III) The forcible search and seizure of evidence from the defendant was barbaric and in violation of due process of law. (IV) The court's failure to order disclosure of the informant's name requires reversal of the judgment. (V) The prosecutor was guilty of prejudicial misconduct. (VI) The trial judge's prejudicial misconduct of vicious attacks on defense counsel's ability and integrity is unequaled in the annals of criminal jurisprudence.'

Defendant's assertion that the court erred in permitting evidence of probable cause for arrest, search and seizure to be received in the presence of the jury is precisely the point that was raised in People v. Russell, 196 Cal.App.2d 58, 16 Cal.Rptr. 228. The court in Russell makes a well considered analysis of the leading cases discussing the question, and concludes, at page 61 of the opinion, at page 230 of 16 Cal.Rptr., that:

'Thus, the manner in which the issue of probable cause is heard during the trial of a case and determined by the lower court appears to be a matter within its discretion; and in the absence of any showing here of abuse of discretion or prejudice, we hold there was nothing in the procedure used by the trial court requiring a reversal.'

The thrust of defendant's argument on this point is that the court committed a procedural error as a matter of law in permitting such evidence to go to the jury. This contention must be rejected upon the authority of the Russell case. Also, the record reflects that counsel for defendant, by both direct and cross-examination, elicited much of the evidence concerning the arrest, search and seizure. He cannot now base an assignment of error upon the introduction of the very evidence he helped develop. (People v. Terry, 180 Cal.App.2d 48, 53, 4 Cal.Rptr. 597.)

Finally, the rule of People v. Gorg, 45 Cal.2d 776, 291 P.2d 469, upon which defendant relies, is predicated upon the fundamental principle that a defendant must be protected from the introduction of inadmissible evidence which might be received on the question of reasonable or probable cause for both arrest and search and seizure; evidence which might be prejudicial to the defendant on the issue of guilt. Absent a showing by defendant that inadmissible evidence was received in the presence of the jury, there is no ground for reversal. No evidence that could be classified as inadmissible or as prejudicial to defendant under the reasoning of Gorg or Russell, is found in the record.

The officers had no warrant for defendant's arrest, and he argues that it was made without probable cause. He carries the argument one step further, contending the search and seizure which followed his arrest without a warrant, violated due process of law. In connection with his argument alleging lack of probable cause for arrest, defendant also asserts the court erred in refusing to order disclosure of the informer's identity.

The initial question is whether there was probable cause for defendant's arrest; the answer to which rests upon whether the arresting officers had reasonable cause to believe defendant had committed or was committing a public offense in their presence. (Penal Code, § 836, subd. 1.) 'Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspiction of the guilt of the accused.' (Bompensiero v. Superior Court, 44 Cal.2d 178, 183, 281 P.2d 250, 254; People v. Fischer, 49 Cal.2d 442, 317 P.2d 967; People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Russell, supra, 196 Cal.App.2d 58, 63, 16 Cal.Rptr. 228.)

The car in which defendant was riding was under surveillance because a federal border patrol officer, one Maxcy, called Sergeant Dodge of the San Diego Narcotics Squad and advised him that an informer had told him two white males had obtained a quantity of heroin in Mexico and crossed the border traveling north in a bluish MG roadster bearing a certain license number. Upon receiving the information, Sergeant Dodge picked up Officer Wilson, a nineteen-year veteran of the San Diego Police Force, thirteen of them as a member of the Narcotics Squad. Dodge and Wilson commenced a surveillance along Highway 94, Dodge driving his private, unmarked automobile with Wilson as a passenger. The officers came upon a bluish MG roadster bearing the license number which had been supplied by the border guard. There was no top on the car, and the officers observed two males, the driver and defendant passenger. The MG was cruising between 30 and 40 miles an hour in a 65-mile zone, the passenger looked back at the officers, then leaned forward so his head and shoulders were out of sight. He straightened up, looked back again, and then leaned forward a second time; whereupon Dodge and Wilson pulled alongside the MG. In People v. McLaine, 204 A.C.A. 119, at page 124, 22 Cal.Rptr. 72, at page 75, it was held:

'In the present case, in view of the report received by the officers by radio as to the robbery which had occurred earlier that evening some three miles away, which information included a description of the participants, and in view of the actions of one of the occupants of the automobile in turning around several times in apparent observation of the police car, the officers were warranted in stopping the automobile for the purpose of interrogating the occupants.'

Wilson testified that he was opposite the passenger and had an opportunity to observe his face, which was expressionless, and that the pupils of defendant's eyes were constricted. Wilson testified that he had qualified as an expert on narcotics upon numerous occasions, that he had done considerable research and study in the field of narcotics, and that he had learned that use of heroin constricts the pupils of the eyes. By comparing the eyes of defendant with those of the driver, the officer concluded that defendant was under the influence of drugs. Officer Wilson further testified that only then did he order the driver to pull over, and that when the driver hesitated he exposed a gun he had been holding below the window of the car, and said, 'Now.' Wilson further testified that after the car stopped his belief that defendant was under the influence of an opium derivative was confirmed; and defendant was handcuffed.

The officers noted that defendant's cheeks were swelled, that his neck muscles stood out, and that he appeared to be gagging. Defendant was asked if he had swallowed 'it', meaning a narcotic, but he did not reply. He refused to open his mouth and continued to move...