People v. King
| Decision Date | 07 July 1970 |
| Docket Number | Cr. 17301 |
| Citation | 9 Cal.App.3d 419,88 Cal.Rptr. 273 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Lavada Carole KING, Defendant and Appellant. |
Albert D. Silverman, * Canoga Park, for appallant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., John H. Darlington, Deputy Atty. Gen., for respondent.
Mrs. King, charged with possession for sale of a restricted dangerous drug (Health & Saf.Code, § 11911), moved to suppress evidence under Penal Code section 1538.5, and after a hearing her motion was denied. She later submitted the cause on the transcript of the preliminary hearing and the testimony given at the motion to suppress, and she was found guilty of the lesser offense of possession of a restricted dangerous drug (Health & Saf.Code, § 11910). On appeal Mrs. King questions, as she is entitled to do (Pen.Code, § 1538.5(m)), the correctness of the order denying her motion to suppress evidence, and she contends the questioned evidence was obtained in violation of the search and seizure provisions of the Fourth Amendment to the Constitution.
About 6 p. m. on 28 January 1969 Deputy Sheriff Lambe of the Los Angeles County Sheriff's office was given a photograph of a man named Gifford and told of an outstanding warrant for Gifford's arrest for failure to appear in court on a petty theft charge. This information came from Deputy Butts of the narcotic detail, who said that Gifford was living in an apartment which belonged to Mrs. King, that Mrs. King kept a large amount of dangerous drugs in her bedroom under her bed, that on one occasion Deputy Butts had been present in her apartment when a person purchased dangerous drugs from her.
Deputy Lambe verified the fact that there was a warrant dated 3 December 1968 for the arrest of Gifford, and later that night with four other deputies he went to Mrs. King's apartment. At 11:45 p. m. he knocked on the door of her apartment, and in response to an inquiry from within he identified himself as a representative of the Sheriff's Department. The apartment door was opened by a man whom he recognized as Gifford, and he told Gifford that he had a warrant for his arrest. Gifford stepped outside the apartment and was handcuffed and then taken back into the apartment and seated on the sofa. Deputy Lambe asked the whereabouts of Mrs. King, and he was told she was in the rear bedroom. Thereupon Lambe and another deputy went to the rear of the apartment, where they found the door to Mrs. King's bedroom closed. The two deputies opened the bedroom door, turned on the lights, entered the bedroom, and found Mrs. King under the covers in bed. Lambe asked if she was Lavada King, and when she said she was he said he had information she was engaged in the sale of illegal drugs. She threw back the covers, thereby disclosing that she was dressed in normal street clothes, but remained on the bed. Thereafter, according to the testimony of the officers, a deputy entered the bedroom and said he had found a bennie in the living room. At that point Lambe ordered Mrs. King out of the bed, and when he looked under the bed he found a brown paper sack which contained numerous plastic bags filled with pills subsequently identified as benzedrine. On the discovery of these items he arrested Mrs. King.
Mrs. King's two young daughters, Ricky, 13, and Randy, 11, were in bed in another bedroom of the apartment. Their bedroom was also entered by two deputies, who made a flashlight inspection of their room. Further searches in the apartment were made of the closets, the dresser drawers, a jewelry box, the rugs, and the kitchen.
At the hearing on the motion to suppress there was a conflict in the evidence whether the benzedrine pill in the living room had been discovered before or after Officer Lambe found the paper sack under the bed and placed Mrs. King under arrest. At the same hearing Deputy Lambe was asked the purpose of his visit to the apartment, and he replied:
The issue presented by the motion to suppress evidence was whether the search of Mrs. King's bedroom and the seizure of dangerous drugs therein violated the Fourth Amendment to the Constitution. The learned trial judge thought not, and in denying the motion to suppress he observed that the officers went to the apartment with a proper warrant for the arrest of Gifford and therefore were lawfully situated within the apartment and entitled to find out whether there was contraband on the premises; additionally, he concluded that their advance information about a supply of dangerous drugs on the premises had been substantiated by their discovery of the benzedrine pill in the living room.
In reviewing the correctness of the trial court's ruling on the motion, we are restricted to the evidence presented to the trial court on that motion. Since the officers did not have a warrant to arrest Mrs. King or a warrant to search her apartment, that evidence, in order to justify a search and seizure without a warrant, must be sufficient to establish probable cause for Mrs. King's arrest. (Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.) It is, of course, hornbook law that the known existence of contraband on the premises would be insufficient in itself to justify a search and seizure without a warrant. (Chapman v. United States, 365 U.S. 610, 614-615, 81 S.Ct. 776, 5 L.Ed.2d 828).
We begin with an analysis of the statement of Deputy Lambe that there was a dual purpose in his visit to Mrs. King's residence at 11:45 p. m.: first, to execute the warrant for the arrest of Gifford for his failure to appear in court on a petty theft charge, and second, to conduct a narcotic investigation if the opportunity presented itself. Justification for the second purpose of the officers' visit was based on (a) Deputy Butts' statement to Deputy Lambe that he was present in the apartment on one occasion when a person purchased dangerous drugs from Mrs. King, and (b) Deputy Butts' statement that he had information that Mrs. King kept a large amount of dangerous drugs in her bedroom under her bed. As to item (a) nothing was said about the date, the time, the occasion, or the circumstances of the purchase of dangerous drugs from Mrs. King. Such a statement would have been insufficient to obtain a warrant because of its lack of specificity. As to item (b), information about the presence of a large amount of dangerous drugs under Mrs. King's bed, the source of this information was not shown. In the form in which it was presented this item amounted to nothing more than an assertion by Deputy Lambe that he had been told by Deputy Butts that the latter had been told by someone that Mrs. King kept a large amount of dangerous drugs under her bed. This is a classic instance of hearsay on hearsay, whose source and whose reliability has not been disclosed and therefore cannot be evaluated. It is clear that the information in the form in which it came to Deputy Lambe would have been insufficient to obtain a search warrant for the apartment or a warrant for the arrest of Mrs. King. (People v. Hamilton, 71 A.C. 189, 192-195, 77 Cal.Rptr. 785, 454 P.2d 681.) It is also clear that the officers themselves did not believe they had probable cause to arrest Mrs. King for possession of narcotics or probable cause to obtain a warrant to search her apartment. To bolster a claim of probable cause the Attorney General in his brief on appeal refers to testimony given at the preliminary hearing, at which Deputy Lambe testified that Deputy Butts told him he had information from a reliable informant that Mrs. King was engaged in the sale of dangerous drugs from her apartment and that she had made sales to numerous people. It is sufficient to point out, (a) the testimony at the preliminary hearing was not before the trial court on the motion to suppress evidence where its validity would have been subject to test by cross-examination, (b) the information itself would not have been sufficient to obtain a warrant for arrest in that information furnished by a reliable informant does not establish probable cause for arrest unless (1) the reliability of the informant is developed, and (2) the source of his information is revealed. (Spinelli v. United States, 393 U.S. 410, 415-416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 113-115, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); People v. West, 237 Cal.App.2d 801, 805, 47 Cal.Rptr. 341.) Information furnished by one police officer to another is insufficient to establish probable cause if the source of the information is not revealed. (Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 113-115, fn. 4, 84 S.Ct. 1509 (1964); People v. Hamilton, 71 A.C. 189, 192-195, 77 Cal.Rptr. 785, 454 P.2d 681; People v. West, 237 Cal.App.2d 801, 805-806, 47 Cal.Rptr. 341.)
The Attorney General is thus forced to justify the search by the events which occurred on the premises after 11:45 p. m. Specifically, he claims that the search of Mrs. King's bedroom was an appropriate incident of the arrest of Gifford, and in any event that the officers were authorized to address inquiries to Mrs. King as part of an investigation conducted from a location at which they had a right to be present.
The Attorney General first argues that the officers made a lawful entry into the apartment. We agree with that part of his argument, and we accept his view that the officers substantially complied with the demand-for-admittance requirement to make an arrest and properly arrested Gifford when he opened the apartment door. (Pen.Code, § 844.) While it...
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