People v. Garrett

• Decision Date: 26 October 1965
• Docket Number: Cr. 10137
• Citation: 237 Cal.App.2d 701,47 Cal.Rptr. 194
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Hollie GARRETT, Defendant and Appellant.

Page 194

47 Cal.Rptr. 194

237 Cal.App.2d 701

The PEOPLE, Plaintiff and Respondent, v. Hollie GARRETT, Defendant and Appellant.

Cr. 10137.

District Court of Appeal, Second District, Division 4, California.

Oct. 26, 1965.

As Modified on Denial of Rehearing Nov. 22, 1965.

Stanley L. Avery, Los Angeles, under appointment by District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Charles R. Kocher, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Justice.

Defendant was convicted by the court of possession of heroin (Health & Safety Code § 11500). A motion for new trial was denied and three prior felony convictions alleged in the information were found not true. Further criminal proceedings were suspended and defendant was committed to the California Narcotic Rehabilitation Facility pursuant to section 6451 of the Penal Code. Defendant's appeal, stated to be from the 'judgment of conviction,' is treated as an appeal from the order denying a new trial since no final judgment of conviction has been entered. (Pen.Code § 1237, subd. 2).

Police Officers Hanks, Flynn and Walker testified for the prosecution of the issue of probable cause for search. On January 10, 1963, these officers, accompanied by Lieutenant Kennedy, all of the Narcotics Division of the Los Angeles Police Department, were parked in an unmarked police vehicle about one block south of an apartment located at 1157 West 30th Street. They were in plain clothes. The officers had received information from two informants that defendant, who lived at this location with an unidentified female, was a user and seller of heroin. At about 5:30 p. m. defendant and a woman came out of the front door of the apartment and began to walk in a westerly direction on 30th Street to the corner of the block. The officers drove up to this corner and pulled their vehicle over to the curb in front of defendant and the woman. Officer Hanks, who was seated in the right rear seat of the vehicle adjacent to where defendant was standing, displayed his badge and stated that he was a police officer. Defendant, about three feet away from the officer at the time, turned and began to run back along 30th Street in the direction of the apartment. As he turned and started to run he made a motion toward his mouth with his left hand. The officers pursued and caught him a short distance down the street. Hanks grabbed him by the right arm and Walker took hold of his left arm. A short scuffle followed during which defendant was wrestled into a prone position on the street. In the course of this struggle defendant dropped a red balloon from his left hand. Hanks picked up the balloon and the other officers handcuffed defendant. A key was then removed from defendant's pocket, and the apartment--which was about ten feet away from the place where defendant was subdued, was searched. A wax paper bindle was found in the mail box and a blue balloon was discovered under a bed. (It was stipulated that the contents of the red balloon which defendant dropped, and of the items found in the mail box and in the apartment, were tested and found to contain heroin.)

On cross-examination Officers Hanks and Flynn refused to disclose the identities of the persons who had informed them that defendant was dealing in heroin, each officer invoking section 1881 subdivision 5 of the Code of Civil Procedure. ¹ Defense counsel moved the court to require the disclosure of the identity of the informers or, in the alternative, to strike the testimony of the officers as it related to the information received from these persons, on the ground that this testimony was necessary to establish the legality of the search. The court denied the motions.

As stated in People v. Williams, 51 Cal.2d 355, 357, 333 P.2d 19, 'It has long been recognized that, although the government is generally privileged to withhold the identity of informers, the privilege must give way when it comes into conflict with the...