People v. Diggs

• Decision Date: 09 June 1958
• Docket Number: Cr. 3485
• Citation: 161 Cal.App.2d 167,326 P.2d 194
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Freddie DIGGS, Defendant and Appellant.

Page 194

326 P.2d 194

161 Cal.App.2d 167

PEOPLE of the State of California, Plaintiff and Respondent, v. Freddie DIGGS, Defendant and Appellant.

Cr. 3485.

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

June 9, 1958.

Rehearing Denied July 9, 1958.

Wilmont Sweeney (Aptd), Oakland, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

Freddie Diggs was charged with the unlawful sale and with the unlawful possession of marijuana, and with several priors. He was found guilty on both counts charged, and admitted priors of burglary and forgery. He appeals from the judgment entered on the verdict and from the order denying his motion for a new trial.

His sole contention on this appeal is that all of the evidence introduced against him was secured as the result of an unlawful search and seizure after an unlawful arrest. There is no merit to the contention.

The two offenses are alleged to have occurred on July 27, 1957. Sergeant Hilliard, attached to the Special Service Bureau of the Oakland Police Department, testified that about a month before July 27, 1957, he received information from a confidential informant that one Raymond Bardwell was selling narcotics in apartment 9 of 1026 Brush Street, Oakland, and that Bardwell had several other men staying with him. The informant had previously given Hilliard reliable information on such matters. The name of this informant was not requested by the defense, nor was there an objection to or a motion to strike this testimony.

On the evening of July 27, 1957, another informant by the name of Leroy Young came to Hilliard's office and told him that Bardwell was selling narcotics at 1026 Brush Street in Oakland, and that another person, whose name he did not know, was also dealing in narcotics at that address. Outside the presence of the jury on the issue of reasonable and probable cause, Hilliard then stated that Young was searched, found to have no narcotics and only some small change, and was given five one dollar bills, the serial numbers of which were recorded. Hilliard then drove Young to within several blocks of 1026 Brush Street, and Young then left the car in company with another officer. In a short time Young returned to the automobile and handed Hilliard three marijuana cigarettes, stating that he had purchased them for $2 from a man in apartment 9 at 1026 Brush Street. He told Hilliard that Bardwell was not then in the apartment, but that there were several men there; that he had purchased the cigarettes from a man the others had called 'Freddie'; that Freddie had taken the cigarettes from a brown paper bag that he carried in his pocket; that there were more cigarettes in that bag; that Freddie wore a straw hat, a white shirt, a vest and checkered pants. Hilliard ordered several other officers to proceed to the apartment and to arrest the man described by Young.

Hilliard also testified that, although this was the first time he had used Young directly as an informant, shortly before July 27, 1957, he had talked with Young about the narcotic problem in Oakland and found Young well and correctly informed about dealers and sellers in that area. Hilliard knew that Young was an addict.

Four officers proceeded to 1026 Brush Street. They knocked on the door of apartment 9 and, when the door was opened, arrested the man who opened the door. They then walked into the apartment, which consisted of a living roombedroom, kitchen and bathroom. There were five men in the apartment. Bardwell was not present. Diggs was sitting on a chair in the living room. A man by the name of McNeeley was sitting on another chair nearby. The officers searched the room and found a brown paper bag containing cigarettes, which later proved to be marijuana cigarettes, on the floor between the chair on which Diggs was sitting and the wall. Diggs denied that the bag belonged to him, stating that he did not live in the apartment; that he lived on Webster Street; that he was merely visiting, and that the tenant was named Bardwell.

The arresting officers had been told by Hilliard about Young's purchase with marked money in the apartment, and had also been given the description of the seller that Young had given Hilliard. The description was an accurate description of Diggs. Diggs was the only person in the room who fitted the description. When Diggs was searched, no narcotics were found on him, but the two marked bills previously given to Young, were found in his pocket. Diggs denied that he had received these bills from anyone that night, stating he had received the money for working.

As already stated, one of the occupants of the room when the police entered, was Reuben McNeeley. He testified that he and Diggs and another occupant of the room, who apparently lived in...