People v. Honore

• Citation: 82 Cal.Rptr. 639,2 Cal.App.3d 295
• Decision Date: 04 December 1969
• Docket Number: Cr. 16543
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Huey HONORE, Defendant and Appellant.

Page 639

82 Cal.Rptr. 639

2 Cal.App.3d 295

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Huey HONORE, Defendant and Appellant.

Cr. 16543.

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

Dec. 4, 1969.

Frank Heller, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Peter G. Samuelson, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Associate Justice.

Defendant appeals from the judgment convicting him of possession of marijuana for sale (Health & Saf.Code, § 11530.5) and possession for sale of a restricted dangerous drug in the nature of an amphetamine (Health & Saf.Code, § 11911). Both appellant's pretrial motion to suppress under Penal Code section 1538.5 and the cause on its merits were submitted to the trial court on the transcript of the preliminary hearing.

Appellant's Contentions

Appellant does not question the sufficiency of the evidence to prove his guilt but attacks the judgment solely on the basis of two contentions, namely: (1) that his arrest and the search made incident thereto were illegal; and (2) that the attorney who appeared for him at his trial had not been regularly substituted for the private attorney whom he had employed and that said appearing attorney failed to provide him with competent representation as evidenced by his joining in the stipulation to submit the cause on the transcript of the preliminary hearing. In support of the foregoing assignments or error appellant has advanced the following basic contentions:

'(1) A search and/or arrest warrant is required under the Fourth Amendment to the United States Constitution where no offense is committed in the presence of the officers, where there is sufficient time to obtain said warrant and where no pressing emergency exists;

'(2) Where (the) arrest of (a) defendant is a mere pretext for searching the premises, evidence obtained thereby is illegally obtained;

'(3) Where the counsel representing appellant at trial and at probation and sentencing hearing was neither obtained by defendant as private counsel nor properly substituted in as attorney of record, nor appointed by the court, and where said counsel at trial merely submits on the basis of the transcript of the preliminary hearing and refuses to try said matter before a jury, appellant's right of representation as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution have been violated as well as appellant's rights pursuant to sections 284 and 285 of the Code of Civil Procedure.'

Statement of the Facts

Sergeant McKnight, an officer of the Los Angeles Police Department, testified that on April 3, 1967, he received information that appellant was 'dealing (in) marijuana from his residence.' Upon receiving this information, Sergeant McKnight caused a check to be made of the official police records and determined therefrom that appellant was named as the suspect in a crime report concerning an assault with a deadly weapon and that there was an outstanding warrant for appellant's arrest for that offense. The officer was further advised by one of the clerks in the Records and Identification Division that there was also an outstanding warrant for appellant's arrest on a traffic violation. The officer did not 'actually physically search out this latter warrant.'

Sergeant McKnight then proceeded to appellant's place of residence accompanied by another officer. After knocking and identifying themselves, the officers were invited into the apartment by one Michael Roundy, who advised the officers that appellant was expected to return to the premises in approximately 15 minutes. The officers entered the living room directly through the fount door of the apartment. The residence was described as 'a very small apartment' on three rooms consisting of the living room, kitchen and bedroom.

When appellant returned to the apartment a few minutes later, he entered and stood 'directly adjacent to the entrance from the driveway area.' The officer thereupon arrested appellant 'for (a) 245, assault with a deadly weapon.' The officer also told appellant that there was a traffic warrant for his arrest but that he was not arresting him on the basis of that warrant.

After making the arrest, the officer searched appellant's person for weapons and in the course of the search found 'four small newspaper-wrapped bindles.' The bindles contained a green leafy substance subsequently identified as marijuana.

The officer then proceeded to search the residence further and found a glass jar containing a substantial quantity of marijuana, a plastic vessel containing a substantial quantity of foil-wrapped tablets, a number of newspaper-wrapped bindless containing marijuana and a glass jar containing a large quantity of various capsules and tablets. The capsules were determined to be phenobarbital, nembutal and seconal. All of these items were recovered from a small cabinet and from the closet in appellant's bedroom. The officer also found a small suitcase in the closet of appellant's bedroom which contained a large quantity of marijuana. The officer expressed the opinion based upon the quantity of the narcotics found and the manner in which they were packaged that appellant had them in his possession for resale on the illicit market.

Legality of the Arrest and Search

The legality of the arrest and incidental search conducted in this case is sustained by the well established rule of law that a police officer may make a valid arrest and a legal search incident thereto without a warrant in his possession where reasonable cause for the arrest is established on the basis of information received through official channels.

As stated by our Supreme Court in People v. Webb, 66 Cal.2d 107, 111--112, 56 Cal.Rptr. 902, 905, 424 P.2d 342, 345, 19 A.L.R.3d 708: 'Although the officers had no search warrant, they had ample reasonable cause to arrest defendant (Pen.Code, § 836, subd. 3) and hence were authorized to search his car as an incident to that arrest. (People v. Robinson (1965) 62 Cal.id 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. Burke (1964) supra, 61 Cal.2d 575, 580, 39 Cal.Rptr. 531, 394 P.2d 67.) Reasonable cause was established by the information received by the officers via police teletype that there was a warrant outstanding for defendant's arrest; even though they were ot in possession of the warrant itself they were entitled to make an arrest on the basis of this information as it was received from official sources. (People v. Kraps (1965) 238 Cal.App.2d 675, 679, 48 Cal.Rptr. 89; People v. Schellin (1964) 227 Cal.App.2d 245, 251, 38 Cal.Rptr. 593; People v. Stewart (1961) 189 Cal.App.2d 176, 178, 10 Cal.Rptr. 879.)'

In People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202, cert. den. 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407, our Supreme Court reaffirmed its holding in Webb, supra, and sustained a search as incident to a lawful arrest where the arresting officer had acted upon a request received by telephone from a police agency to take the defendant into custody on a murder charge. The court viewed the information received by the officer through official channels as providing reasonable cause to believe that defendant had committed a felony, thus justifying the warrantless arrest. ¹

In the instant case, Sergeant McKnight acted reasonably and circumspectly in causing a check of the official records to be made at the 'Records and Identification Section of the Los Angeles Police Department.' The officer was informed that appellant 'was a named suspect on a crime report for assault with a deadly weapon and that there was currently active with the police department a warrant for the arrest of the (appellant) for investigation of 245 Penal Code.' The officer was further informed by the clerk of the same official agency that a traffic warrant against appellant was also outstanding.

We recognize the fact that prior to the time of appellant's arrest, the District Attorney's office determined not to press the felony charge with the result that the felony warrant was withdrawn, whereupon the City Attorney's office caused to be issued a misdemeanor complaint and a warrant for appellant's arrest for violations of Penal Code sections 242 and 415 involving charges of battery and disturbing the peace. The police records and the identification division had not been informed of this change in the status of the case at the time when Sergeant McKnight was provided with the information upon which he acted. As a result, the officer was not made aware of the more recent misdemeanor warrant which had been substituted for the felony warrant previously issued. It remains true, nevertheless, that the officer acted reasonably and properly upon the official information which he had received when he arrested appellant and conducted the incidental search.

It would constitute an outrageous sacrifice of substance to technical form to hold that the procedure followed by the police officer in this case was illegal merely because he acted without knowledge that the misdemeanor warrant had been substituted for the previously outstanding felony warrant and because it was...