People v. Gorg, Cr. 3341

• Decision Date: 10 February 1958
• Docket Number: Cr. 3341
• Citation: 157 Cal.App.2d 515,321 P.2d 143
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alan Kent GORG, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 143

321 P.2d 143

157 Cal.App.2d 515

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alan Kent GORG, Defendant and Appellant.

Cr. 3341.

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

Feb. 10, 1958.

Hearing Denied April 9, 1958.

Charles R. Garry, San Francisco, Julius M. Keller, San Francisco, of counsel, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

Defendant Alan Kent Gorg and one Norman Fontaine were jointly charged with the illegal possession of narcotics. Gorg admitted a prior narcotic felony conviction. The two were separately tried, and both were found guilty. Gorg appeals from the judgment of conviction and from the denial of his motion for a new trial. His contentions are that his arrest without a warrant was illegal, that such illegality tainted the subsequent search of his premises even though such search was based on a warrant, and that, in any event, the search warrant was a 'blanket' or 'general' warrant and, as such, invalid.

The facts as disclosed by the record are as follows: Gorg, Fontaine and one Hyde, for some months prior to June 1, 1956, when the arrest and search were made, lived in the lower flat of a two-story building located in Berkeley. The flat consisted of three bedrooms, a bathroom, a kitchen and a living room. The owner testified that each tenant paid his rent separately to her in differing amounts. Each tenant had his own bedroom, which was never locked, and the three occupants shared the utility expenses, and the other rooms of the apartment. Each of the three bedrooms opened into one of the areas occupied in common by the three tenants.

On March 21, 1956, Inspector Braumoeller of the Bureau of Narcotic Enforcement received a phone call from a reliable informant who told the inspector that he believed that Gorg and Fontaine were trafficking in marijuana at the address in question; that he had obtained a marijuana cigarette in the bathroom of the establishment; that there was considerable traffic to and from the apartment; that he believed marijuana was being sold from the premises and that marijuana parties were being held there. The informant did not say that he saw Gorg place the marijuana cigarette in the bathroom, or that he had seen Gorg sell or make any marijuana cigarettes. The inspector was familiar with the fact that Gorg had a prior felony conviction for a narcotic offense. People v. Gorg, 45 Cal.2d 776, 291 P.2d 469. He transmitted that knowledge and the information received from the informer to the Berkeley Police Department. That department placed the premises under surveillance for a period of about three months. Officer Reppas testified that during this period he observed several known narcotic offenders visit the premises, but he never saw these persons in the presence of appellant. Inspector McBee, at the preliminary examination, testified that in talking with several informers he heard appellant's name mentioned as being involved in the narcotic traffic, heard that appellant was associated with narcotics at his residence, and heard that narcotics could be obtained there from either Fontaine or appellant. He refused to identify these informers. He also stated that a Youth Authority officer informed him that a person on parole had purchased narcotics from Fontaine at the residence. The person on parole and the Youth Authority officer were both identified.

On the evening of May 31, 1956, Inspector McBee supplied an informer with funds, observed him enter the premises in question, and when he came out he delivered to the inspector six marijuana cigarettes. Appellant testified that he was in Los Angeles from May 26th to 11 p. m. on May 31, 1956, attending the funeral of his father.

On June 1, 1956, the police obtained a search warrant which named Fontaine and which authorized a search of the lower flat in question 'including all rooms and buildings used in connection with the premises and adjoining same, and in any receptacle or safe therein.' At about 9 p. m. a number of people were observed leaving the premises. Shortly thereafter appellant was observed backing his automobile out of the premises. Fontaine and another person were with him. Officer Reppas placed appellant under arrest. Appellant then reached in his shirt pocket for a cigarette that looked like and was wrapped in the same manner as a marijuana cigarette. A scuffle ensued, during which appellant swallowed the cigarette. The arresting officer, in the presence of appellant, told another officer that appellant had swallowed a mariuana cigarette, and appellant remained silent. A search of the automobile disclosed the remains of a marijuana cigarette on the floor. Then the police asked Fontaine to unlock the premises, which he did, and then the police served the search warrant on Fontaine. A search of the premises was quite rewarding. A cellophane bag of marijuana seeds and two marijuana cigarette butts were found in an ash tray in the living room. In Fontaine's bedroom two bottles of marijuana were found, as well as several marijuana cigarette butts. In appellant's bedroom, under a bookcase, a cardboard box containing marijuana was found. Fontaine testified that all of this marijuana belonged to him. A search of appellant's clothing disclosed traces of marijuana in the debris from the pockets.

Appellant first contends that his arrest was illegal, and that such illegality tainted the subsequent search of the automobile and the premises, even if the search of the premises was based on a valid search warrant. Based on this premise it is urged that all of the evidence against him, that is the exhibits found in his automobile and on his person, or in his apartment, the evidence of the scuffle and his swallowing a cigarette, and the evidence of his silence in the face of an accusation was inadmissible.

Whether the arrest was a legal one, since it was accomplished without a warrant of arrest, depends upon whether or not the police had reasonable cause to believe that appellant was committing or had committed a felony. People v. Simon, 45 Cal.2d 645, 290 P.2d 531; People v. Cannon, 148 Cal.App.2d 163, 306 P.2d 589. Reasonable or probable cause is such a state of facts as would lead a man of ordinary caution and prudence to believe, and conscientiously to entertain a strong suspicion that the person accused is guilty. People v. Soto, 144 Cal.App.2d 294, 301 P.2d 45. Reasonable cause to justify an arrest may consist of information obtained from others and is not limited to evidence that would be admissible at the trial on the issue of guilt. People v. Boyles, 45 Cal.2d 652, 290 P.2d 535; People v. Cannon, 148 Cal.App.2d 163, 306 P.2d 589. Just as a search without a warrant cannot be justified by what it turns up (People v. Gale, 46 Cal.2d 253, 294 P.2d 13; People v. Goodo, 147 Cal.App.2d 7, 304 P.2d 776), an arrest without a warrant cannot be justified by what is subsequently discovered. People v. Brown, 45 Cal.2d 640, 290 P.2d 528.

How do these rules apply to the present case? The important considerations are whether the officer, before the search, has reasonable cause to make the arrest, and whether the subsequent search is reasonably justified as an incident of that arrest. People v. Simon, 45 Cal.2d 645, 290 P.2d 531.

In the instant case the officers had ample evidence upon which to base the search of the premises even without a warrant, and the same evidence constituted ample information upon which to arrest the appellant. They had the information received from the various informers which was, of course, admissible on the issue of reasonable cause. They saw known narcotic past record. They saw known narcotic addicts going in and out of the premises. An identified person on parole had given them pertinent information. When they were about to serve the search warrant they saw appellant and Fontaine trying to leave the premises. The facts known to them constituted reasonable grounds to warrant the arrest and search. See Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36; People v. Cannon, 148 Cal.2d 163, 306 P.2d 589; People v. Hood, 150 Cal.App.2d 197, 309 P.2d 856; People v. Garnett, 148 Cal.App.2d 280, 306 P.2d 571; People v. Sayles, 140 Cal.App.2d 657, 295 P.2d 579; People v. Maddox, 46 Cal.2d 301, 294 P.2d 6.

Appellant contends that the relay of information from the informer to Braumoeller to the Berkeley police who arrested him constitutes hearsay upon hearsay, and was inadmissible. This point is without merit. People v. Hood, 150 Cal.App.2d 197, 309 P.2d 856, is precisely in point. There an informant gave information to a parole officer who relayed it to her superior officer who relayed it to the narcotic detail of the police department and so on to the...