People v. Green, Cr. 3373

• Decision Date: 30 July 1957
• Docket Number: Cr. 3373
• Citation: 313 P.2d 955,152 Cal.App.2d 886
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joe GREEN, Defendant and Appellant.

Page 955

313 P.2d 955

152 Cal.App.2d 886

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joe GREEN, Defendant and Appellant.

Cr. 3373.

District Court of Appeal, First District, Division 2, California.

July 30, 1957.

Edward T. Mancuso, Public Defender, City and County of San Francisco, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Marvin Christiansen, Deputy Atty. Gen., for respondent.

BRAZIL, Justice pro tem.

This is an appeal from a judgment which found defendant guilty of possession of heroin, in violation of Section 11500 of the Health and Safety Code, after a court trial; a jury having theretofore been properly waived. Appellant presents three points for consideration, any one of which he claims requires a reversal. (1) The evidence was erroneously admitted, over objection, in violation of the exclusionary rule relating to an unlawful search. (2) Testimony of the main witness was imporperly admitted by way of transcript of his testimony taken at the preliminary hearing, again over objection; and (3) the trial judge erred in holding he had to commit the defendant to State prison because of a prior conviction which had not been proved during the trial. Defendant also appeals from the order denying him a new trial.

Four federal narcotic officers, acting upon information from a reliable informant that narcotics were being sold by one Percy Howard, at 1513 Geary Street, went to those premises on the afternoon of December 12, 1956. Federal agent Prziborowski rang the door bell at the vestibule on the lower floor; Howard, the occupant of the premises, thereupon admitted them after they had identified themselves; raising his hands in a manner to be searched as soon as he found out who they were. When asked if he minded if they searched his premises he said, 'no' to go right ahead. This officer promptly placed Howard under arrest downstairs, while Agent Stenhouse and the other two went upstairs. When Prziborowski came upstairs to the living quarters with Howard, Agent Stenhouse already had defendant Green under arrest.

That portion of the testimony of Agent Stenhouse which came in by way of a transcript of his testimony given at the preliminary hearing insofar as it relates to the issue of reasonableness of the search and seizure is substantially as follows: He went past Agent Prziborowski at the doorway, went upstairs to the combination living room and bedroom and saw defendant attempting to hide behind the alcove of a small kitchenette. Green was holding a switchblade type knife in his right hand and held his left hand in a clenched or closed manner. Without permission, and without a search or any kind of warrant, he forced open the clenched fist, after taking the knife away from the defendant. He removed therefrom, what proved later to be, half a grain of heroin in a small white paper bindle and an improvised hypodermic outfit.

He further testified that on entering the upstairs apartment he announced he was a Federal Narcotics Agent, which was simultaneous with his observation of the defendant holding the knife. He told defendant he then was under arrest. When asked for what the defendant was being arrested, he testified that he had reason to believe that the defendant was engaged in the traffic of narcotics; having theretofore gotten such information from Agent Prziborowski. He related further that Green had been the topic of conversation with the other agent that same day at another place and as near as he could recall 'possibly during two or three week period.' The premises where defendant was searched and arrested were those of Howard and his wife; and defendant Green was a visitor there, without that fact having been previously known by the narcotic agents. Their original intention in going to the premises was not for the purpose of arresting Green.

The mere presence of defendant in a place where narcotics are being or have recently been unlawfully smoked or used could not, without more, have justified the search and arrest without a warrant, for it has recently been held that Health & Safety Code, § 11556, making such conduct unlawful, is unconstitutional. Bonwell v. Justice Court, 148 Cal.App.2d 906, 307 P.2d 716.

The mere fact that one is in company of a person reasonably known or believed to have committed a felony, standing alone, is not enough to justify the police in making a search of his person. People v. Simon, 45 Cal.2d 645, 290 P.2d 531. The facts in this case go beyond mere association. The officer who made the search and arrest had reliable information that narcotics were being sold at these premises, he had theretofore been reliably informed by a brother officer that this very defendant had been involved in the narcotic traffic; and further, the defendant's actions, to say the least, added to the suspicious circumstances. All these circumstances which were known at the time of arrest to Agent Stenhouse certainly add up to enough to 'lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion, that the person accused is guilty.' Montgomery v. Superior Court, 146 Cal.App.2d 622, 304 P.2d 206, 207. The trial court was justified under the facts of this case in holding that there was reasonable cause at the time of arrest, without at all considering that the search actually resulted in finding the narcotic and hypodermic outfit.

Respondent presents a further reason for affirmance which has not yet, to our knowledge, been passed upon by an appellate court of this state; and that is: 'Even if there had been an illegal search and seizure, the evidence was admissible since there was no evidence of state cooperation.' Reliance is placed on Feldman v. U.S., 322 U.S. 487, at page 492, 64 S.Ct. 1082, 1084, 88 L.Ed. 1408, wherein it appears, 'while evidence secured through unreasonable search and seizure by federal officials is inadmissible in a federal prosecution, [citations] incriminating documents so secured by state officials without participation by federal officials but turned over for their use are admissible in a federal prosecution.' This was a four to three...