People v. Handy

• Decision Date: 19 February 1962
• Docket Number: Cr. 7894
• Citation: People v. Handy, 19 Cal.Rptr. 409, 200 Cal.App.2d 440 (Cal. App. 1962)
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Vincent Armand HANDY, Defendant and Appellant.

Page 409

19 Cal.Rptr. 409

200 Cal.App.2d 440

The PEOPLE of the State of California, Plaintiff and Respondent, v. Vincent Armand HANDY, Defendant and Appellant.

Cr. 7894.

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

Feb. 19, 1962.

Rehearing Denied March 9, 1962.

Hearing Denied April 11, 1962.

Haskell J. Shapiro, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Edmond B. Mamer, Deputy Atty.Gen., for respondent.

FOX, Presiding Justice.

Defendant was convicted of violation of Section 11530, Health and Safety Code (possession of marijuana). He has appealed from the judgment of conviction (order granting probation ¹).

Officer James Grennan of the Los Angeles Police Department assigned to the Narcotics Division, had received information from a reliable informant that defendant was dealing in marjuana and that he had offered to sell informant five kilos of marijuana or any part thereof. The first conversation was by telephone and about two weeks before the arrest; the second in person approximately a week before defendant was arrested. The informant told Officer Grennan that defendant was to receive five kilos of marijuana on the 22d of February, 1961. Officer Grennan and his partner, Sergeant Hanks, went to defendant's residence on February 28 at approximately 10:00 o'clock in the morning. They rang the doorbell which was answered by defendant. The officers identified themselves as police officers and were invited in by defendant. After entering the house, they again identified themselves, stating that they worked in the Narcotics Division and had information that he was dealing in marijuana. Defendant stated that this was not true.

Officer Grennan asked defendant if he had ever seen marijuana and if so, when he had last seen any. Defendant replied that he had seen some approximately two weeks prior to that time. When asked by the officer whether he had ever seen a kilo of marijuana, defendant stated that he had not seen a kilo since he had been out of the army; that while in the army he had on one occasion bought a kilo of marijuana. Officer Grennan requested permission to seach his home for marijuana; defendant declined to give permission. It had been the officer's experience that the only time that a person dealing in narcotics would not be in possession of any contraband would be if his source of supply had run out or he had been arrested. According to the officer's information, defendant had not been arrested.

When defendant declined to permit the officers to search the premises, he was placed under arrest. The officers proceeded to search the house and in a dresser drawer in defendant's bedroom they found a cellophane bag containing a quantity of green leafy material that proved to be marijuana. Defendant then stated that the bag containing the marijuana was his and that it was the remainder of half a can he had bought for his own use. He said that he had smoked marijuana for the past 20 years.

The marijuana was received in evidence over defendant's objection on the ground that its discovery was the product of an illegal search and seizure. It is not disputed that Officer Grennan received his information as to defendant's activities from a reliable source. This information was sufficient to justify defendant's arrest on February 22, the date on which he was to receive delivery of the five kilos of contraband. (People v. Moore, 154 Cal.App.2d 43, 45, 315 P.2d 357, and cases there cited.) Had defendant been so arrested it would have been proper as an incident thereto for the officers to have searched the house and to have seized the contraband there found. (Id., p. 46, 315 P.2d 357.) But the officer did not act upon the information until February 28, a period of five or six days. This delay was due, according to the officer's testimony, to the fact that he was busy with other duties, the nature of which he could not recall without reference to his long book which he did not have in court. The officer, according to his testimony, did not put this matter off for any period of time or put it out of order. He pursued it at the first opportunity he was free from other matters. He was mindful of the information that defendant was a dealer in marijuana and his experience that dealers were ordinarily in possession of narcotics unless they had been arrested or their supplier had run out of contraband; and to his knowledge defendant had not been arrested. The officer testified that it was his belief at the time he went to defendant's home the defendant would still be in possession. In this factual setting it was for the trial court to determine whether the officer was acting in good faith in reliance upon the information that he had received from the informer when he went to defendant's home on February 28, placed him under arrest, and then searched his household. The trial court impliedly determined that the officer was acting in good faith and reasonably relied upon the information at hand; that the arrest and search were legal; and that the contraband there found was admissible in evidence. We cannot say as a matter of law that the trial judge did not have sufficient basis for such implied finding.

Defendant contends that his arrest without a warrant and the search of his premises were illegal and the contraband thus discovered inadmissible in evidence on the theory that the police waited an unreasonable time after receiving the information from the informer before they took action. In the interest of accurately reflecting his position we quote from his reply brief: 'Defendant's specific contention is that as a matter of law the probable cause that arose when the police received their information from the reliable informant was vitiated by the delay of one week which occurred before defendant was arrested because it was no longer reasonable for the police officers, after waiting a week, to arrest the defendant and to search his premises without obtaining either a search warrant or a warrant for defendant's arrest.' In support of his contention he argues: 'Assuming that defendant were a dealer in narcotics and that the reliable information was correct and that defendant was to receive five kilos ² of marijuana on the 22nd, then it is unreasonable for police officers, experienced in narcotic matters to believe that the five kilos of marijuana would still be on the defendant's premises on the 28th of the month. The very reason why police officers usually arrest and search a person within twenty-four hours after reciving their reliable information, and without a warrant, is that they fear if they wait a week the evidence may be gone. Here, the fact that the officers waited a week indicates that they did not have the type of belief in the guilt of the defendant which would warrant them acting immediately.' In making this argument defendant is actually arguing a factual question and, contrary to the established principles of appellate review, he fails to give credence to evidence the truthfulness of which is implicit in the court's ruling and he draws inferences at variance with those drawn by the trier of fact. To illustrate: defendant says that it is unreasonable for police officers to believe that if a dealer in narcotics received five kilos of marijuana on the 22nd of the month, he would still have some of the contraband on his premises on the 28th. The officer testified specifically on this question:

'Q. Well, were you of the belief that at a week later that the defendant would still be in possession?

'A. Yes, sir; yes, sir.

'Q. And do you have any experience as...