People v. Ghimenti

• Decision Date: 04 February 1965
• Docket Number: Cr. 4384
• Citation: 232 Cal.App.2d 76,42 Cal.Rptr. 504
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert GHIMENTI, Defendant and Appellant.

Page 504

42 Cal.Rptr. 504

232 Cal.App.2d 76

The PEOPLE of the State of California, Plaintiff and Respondent, v.Robert GHIMENTI, Defendant and Appellant.

Cr. 4384.

District Court of Appeal, First District, Division 3, California.

Feb. 4, 1965.

Donald R. Abrahamson, San Francisco, for appellant(under appointment of the District Court of Appeal).

Stanley Mosk, Atty. Gen., Harold B. Haas, Asst. Atty. Gen., Elizabeth Palmer, John Carl Porter and Asher Rubin, Deputy Attys.Gen., San Francisco, for respondent.

DEVINE, Justice.

Appellant was found guilty of possession of narcotics.His sole point on appeal is that the search which revealed the contraband was illegal.

Facts

Inspector Groom of the state narcotic bureau received anonymous phone calls informing him that a man at a certain telephone number (which the inspector traced to appellant) was dealing in heroin.In investigating appellant, Inspector Groom discovered that the Hayward-San Leandro Municipal Court in Alameda County had issued a warrant for appellant's arrest for violation of Penal Code section 12021(possession of concealable firearm by former felon or addict).One or two weeks before appellant's arrest, Inspector Groom contacted Deputy Robert Sang of the Contra Costa County Sheriff's Office, and told Deputy Sang of the anonymous telephone call and of the arrest warrant.

At 1:15 p. m. on December 18, 1962, four officers arrived at appellant's apartment: Inspector Groom, Deputy Sang, Deputy Louis Price of the Contra Costa Sheriff's Office, and Officer Bernard of the Alameda County Sheriff's Office.Inspector Groom and Officer Bernard apparently waited on the sidewalk in front of the building; Deputy Price went around to the rear of the building; Deputy Sang went up to the entrance of the apartment.When Deputy Sang knocked, appellant answered; and when Deputy Sang asked appellant if he was Robbert Ghimenti, appellant replied that he was.Deputy Sang then displayed his badge and told appellant, 'I am from the Sheriff's Office and I have a warrant for your arrest.'¹At this point, appellant began to back away from the door; and when Deputy Sang reached up to open it, appellant turned and ran.Breaking the hook (it was a screen door) and stripping from the door jamb, Deputy Sang pulled the door open and chased appellant as he ran through the apartment to the bathroom.When appellant reached the bathroom, he flushed the toilet, reached for something on the back of the toilet, and put it into the toilet.With the help of Inspector Groom and Officer Bernard, who had followed Deputy Sang into the apartment, Deputy Sang restrained appellant and took him into the living room.

Upon entering the living room, the officers found Mrs. Elsie Rodriguez.Both Mrs. Rodriguez and appellant admitted living in the apartment, Mrs. Rodriguez stating that she occupied the west bedroom and appellant stating that he occupied the east bedroom.Each denied that anyone else lived there, but one Clarence Drwe had rented the apartment with appellant.In the living room, Inspector Groom Searched appellant and found an 'outfit,' a small plastic case containing an eye dropper, a rubber bulb, some wire cleaners, and a needle.Appellant admitted that the 'outfit' was his.While Deputy Sang guarded appellant in the living room, the three other officers then conducted a two-hour search of the apartment.Several items which were contraband or associated with contraband were discovered.Their description and appellant's statements about them at the time of his arrest, and his testimony about them at the trial, follow:

1.A bindle of heroin, found in the pocket of a white jacket in the closet of the west bedroom.Appellant told the officers that he knew nothing of the bindle, but admitted that he owned the jacket.His testimony was the same.

2.A marijuana cigarette found in the pocket of a brown suit jacket, and a marijuana cigarette found in a chest of drawers in the west bedroom.Appellant told the officers that he knew nothing of the first cigarette, but admitted that the jacket in which it was found was his; as to the other cigarette, he denied ownership and said he did not know what the cigarette was.At the trial, he testified that the inspector showed him two cigarettes and said if he, appellant, would cooperate and admit the stuff was his, he would get a break.

3.A hypodermic needle and a spoon, which contained some residue and which was burnt on the bottom, found in a desk in the west bedroom.

4.A matchbox containing marijuana seeds, found under a towel in a hall closet.

5.A vial containing one percodan tablet, found in a box on the floor of the same hall closet.

6.A vial containing 14 codeine tablets, found in a kitchen cabinet.

7.Cigarette papers, found in the living room and in the front room closet.This type of paper is tougher than the normal cigarette paper and is usually found in marijuana cigarettes.

8.A needle box containing an eye dropper with a gasket, three rubber bulbs, a hypodermic needle, and a small piece of cotton, found in the bathroom cabinet.

Appellant denied ownership of items 3 through 8 (he was not charged with any offense in possessing them), except the 'outfit.'He told police that this was his; at the trial he denied ownership of it, saying that he had admitted ownership just because they had found it in his pocket.

During the search, appellant produced a document explaining that the pistol which had been in his possession had been taken from him.Although several rifles were found, no pistol was discovered in the apartment.

Deputy Sang testified that the purpose of going to appellant's apartment was to serve the warrant on appellant and to arrest him for being an ex-felon with a gun; that the purpose of arresting appellant was to serve the warrant and not to search for narcotics; that at the time of the arrest there was no intent to search for narcotics; and that although Deputy Sang knew from the information received that he might have to search for narcotics, this was not his primary intention.Inspector Groom testified that the purpose of his going to appellant's apartment was to serve the warrant.Deputy Sang explained that Inspector Groom was present because where a warrant is to be served on someone who is possibly using or dealing in narcotics, a state agent is called in so that in case something is found, the agent will be there to identify it.

Asked why the officers searched appellant's apartment, Deputy Sang testified that the search was not exploratory; that the officers searched for a gun and found narcotics; and that after appellant had made the 'furtive gesture' of flushing the toilet and after the 'outfit' had been found on appellant, the search was both for a gun and for narcotics.Inspector Groom testified that when he was making his search, he was searching for narcotics and not for a gun.

Finally, Deputy Sang testified that appellant was arrested on the warrant and also for violations of Health and Safety Code sections 11500(possession of narcotic other than marijuana), 11530 (possession of marijuana), and 11555 (possession of paraphernalia used for unlawfully injecting or smoking a narcotic).

Legality of the Entry and Search

Appellant contends that the real purpose of the officers' visit, entry, arrest, search and seizure was not to take him into custody because of violation of the gun law, but because of their information regarding his dealing in narcotics.He argues that this purpose is shown by the leading part taken by Inspector Groom, a narcotics agent, who is not concerned with an exfelon's possessing of a weapon, per se.It was Groom, he says, who received the tip, who looked for information about appellant and discovered that the warrant was outstanding, whose search was for narcotics.

He cites authorities, quite correctly, which hold that where the search and not the arrest was the real object of the officers in entering upon the premises, and the arrest was a pretext for or, at an incident of the search, the search cannot be held to be reasonable.(People v. Haven, 59 Cal.2d 713, 31 Cal.Rptr. 47, 381 P.2d 927;People v. Roberts, 47 Cal.2d 374, 303 P.2d 721;Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399.)Further, where the arrest is for one crime, a general exploratory search for evidence of other crimes may not be made.(People v. Mills, 148 Cal.App.2d 392, 399-402, 306 P.2d 1005.)

On the other hand, if a search is being made reasonably, the fact that it yields evidence of a crime other than that which was suspected originally does not in itself render the evidence inadmissible.(Harris v. United States, supra, 331 U.S. p. 155, 67 S.Ct. 1098;People v. Aguirre, 158 Cal.App.2d 304, 322 P.2d 478;People v. Moore, 205 Cal.App.2d 754, 23 Cal.Rptr. 502[warrant was for sale of heroin, and a gun was found on the premises of appellant, a felon, the reverse of the Ghimenti case as to the contraband described in the warrant and the contraband actually found].)

Two of the officers testified that their primary purpose was to execute the warrant.It was testified that Groom was present because where a warrant is to be served on someone who is possily using or dealing in narcotics, a state agent is called in so that in case something is found, the agent will be there to identify it.

The decision upon the purpose of the officers was essentially for the trial judge to make.(People v. Reyes, 206 Cal.App.2d 337, 342, 23 Cal.Rptr. 705;People v. Taylor, 176 Cal.App.2d 46, 51, 1 Cal.Rptr. 86.)Unquestionably, he had the right to believe the officers.(People v. Moore, 205 Cal.App.2d 754, 757, 23 Cal.Rptr. 502.)

We need not discuss how far search might have gone if appellant had yielded to arrest at the door, or demanded to see the warrant.When he fled at once, the officers were justified in breaking the door and pursuing him, both in order to protect themselves (the...