People v. Johnson

• Decision Date: 13 September 1961
• Docket Number: Cr. 1292
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Lucille JOHNSON and Frank Benjamin Milton, Defendants and Appellants.

Page 1

16 Cal.Rptr. 1

195 Cal.App.2d 573

PEOPLE of the State of California, Plaintiff and Respondent, v. Lucille JOHNSON and Frank Benjamin Milton, Defendants and Appellants.

Cr. 1292.

District Court of Appeal, Fourth District, California.

Sept. 13, 1961.

Hearing Denied Nov. 8, 1961.

Hugh Wesley Goodwin, Fresno, for appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and George W. Kell, Deputy Atty. Gen., for respondent.

COUGHLIN, Justice.

This is an appeal from judgments, after trial by jury, convicting each of the defendants, who are the appellants herein, of a violation of Section 11500 of the Health and Safety Code, i. e., possession of heroin.

After announcing their presence and not being admitted, law enforcement officers broke into the defendant Johnson's home; searched the premises; found both defendants present therein; found heroin in a pair of levis, apparently belonging to the defendant Milton; and also found heroin in a jacket apparently belonging to the defendant Johnson. Thereupon the defendants were arrested and charged with the possession of heroin. At the trial objection was made to the introduction of evidence obtained as a result of the aforesaid search, upon the ground that the officers had entered the premises illegally. The objection was overruled. The defendants contend that the search was unlawful; that the evidence obtained thereby was inadmissible under the rule stated in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, and ask that the judgment be reversed. This is the sole contention made on this appeal. In opposition, the People, who are the respondent herein, rely upon the fact that the record does not show that the officers were not acting under a search warrant nor a warrant of arrest and contend that a reversal should not be ordered because, no evidence to the contrary appearing, it must be presumed that the officers regularly and lawfully performed their duties, citing Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23, and People v. Guy, 145 Cal.App.2d 481, 488, 302 P.2d 657, in support of their position. See also People v. Citrino, 46 Cal.2d 284, 287, 294 P.2d 32; People v. Maddox, 46 Cal.2d 301, 304, 294 P.2d 6; People v. Beard, 46 Cal.2d 278, 280, 294 P.2d 29; People v. Holguin, 145 Cal.App.2d 520, 521-522, 302 P.2d 635.

'The burden is on the defendant to raise the issue of illegally obtained evidence, * * *' People v. Prewitt, 52 Cal.2d 330, 335, 341 P.2d 1, 3; People v. Guy, supra, 145 Cal.App.2d 481, 488, 302 P.2d 657.

He may do this by moving to suppress the evidence or by objecting to its introduction. In either event, he must establish that private premises were entered or a search made without a warrant and, if the search objected to was an incident to an arrest, that the arrest was made without a warrant (Badillo v. Superior Court, supra, 46 Cal.2d 269, 272, 294 P.2d 23; People v. Smith, 171 Cal.App.2d 568, 570, 340 P.2d 640; People v. Guy, supra, 145 Cal.App.2d 481, 488, 302 P.2d 657), otherwise it must be presumed that the search or arrest was made pursuant to a warrant. People v. Prewitt, supra, 52 Cal.2d 330, 335, 341 P.2d 1; People v. Maddox, supra, 46 Cal.2d 301, 304, 294 P.2d 6; People v. Citrino, supra, 46 Cal.2d 284, 287, 294 P.2d 32; People v. Farrara, 46 Cal.2d 265, 269, 294 P.2d 21; People v. Smith, supra, 171 Cal.App.2d 568, 570, 340 P.2d 640; People v. Morris, 157 Cal.App.2d 81, 83, 320 P.2d 67; People v. Guy, supra, 145 Cal.App.2d 481, 488, 302 P.2d 657. This conclusion follows from the presumption that 'the officers regularly and lawfully performed their duties.' [46 Cal.2d 265, 294 P.2d 23.] Code Civ.Proc. sec. 1963, subds. 1, 15, 33; People v. Farrara, supra, 46 Cal.2d 265, 269, 294 P.2d 21; Badillo v. Superior Court, supra, 46 Cal.2d 269, 272, 294 P.2d 23; People v. Beard, supra, 46 Cal.2d 278, 280, 294 P.2d 29; People v. Citrino, supra, 46 Cal.2d 284, 287, 294 P.2d 32; People v. Collins, 172 Cal.App.2d 295, 302, 342 P.2d 370; People v. Dupree, 156 Cal.App.2d 60, 67, 319 P.2d 39; People v....