People v. Landry

• Decision Date: 18 November 1964
• Docket Number: Cr. 9977
• Citation: 230 Cal.App.2d 775,41 Cal.Rptr. 202
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Edward Louis LANDRY, Defendant and Respondent.

Page 202

41 Cal.Rptr. 202

230 Cal.App.2d 775

The PEOPLE, Plaintiff and Appellant, v. Edward Louis LANDRY, Defendant and Respondent.

Cr. 9977.

District Court of Appeal, Second District, Division 4, California.

Nov. 18, 1964.

Hearing Denied Jan. 13, 1965.

Thomas C. Lynch and Stanley Mosk, Attys. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Harry Wood and Wilber A. Sweeters, Deputy Dist. Atty., for plaintiff and appellant.

Erling J. Hovden, Public Defender, Edward J. Carney and James L. McCormick, Deputy Public Defenders, for defendant and respondent.

BURKE, Presiding Justice.

Defendant was charged by information with the crime of possession of marijuana, a felony. (Health & Saf.Code, § 11530.) A preliminary hearing was had and defendant held to answer. The public defender made a motion in his behalf to set aside the information under Penal Code section 995 upon the ground of lack of probable cause for the entry and search of defendant's apartment and the seizure of the incriminating evidence. The motion was granted and the People appeal from such order.

Evidence was presented at the preliminary hearing that on January 18, 1964, two experienced uniformed policemen were patrolling an area known to have a heavy concentration of prostitutes. At about 7:30 p. m. they saw a young girl, 17 years of age, walking alone on the street, and asked her for identification and her purpose. She had no identification with her but took the officers to her nearby residence where they learned her name and age. While there they checked with the police department and found that she had been arrested several times, three times for narcotics. Her eyes were checked and showed normal reaction. She was returned to the place of pickup. She was neatly and cleanly dressed at the time.

At 12:45 a. m. that night the officers saw her standing in an extremely disheveled condition, her hair hanging down in her face, her coat and blouse open, her hose hanging loosely with holes at both knees. Her demeanor was confused, her step unsteady and her speech slurred. A woman, who identified herself as the girl's mother, approached the group and remained with the officers.

There was no odor of alcohol about the girl to explain her condition. By flashlight examination her eyes and pupils failed to react normally; this was demonstrated by similar use of the flashlight on the eyes of one of the officers. Both officers had made numerous arrests of persons under the influence of narcotics, had received special training in the field, and they formed the opinion that she was under the influence of a narcotic. They arrested her for curfew violation. She denied she had been smoking marijuana and when asked where she had been she stated she had been upstairs, at the place where she had been standing, visiting a friend and to verify this she volunteered to take the officers to her friend's apartment where she said she had spent the evening. The girl, her mother and the officers went to apartment 6; the officers stood to one side while the girl knocked on the door. It was opened slightly, then a chain was released and the defendant opened the door and stepped out. He then saw the uniformed officers, said 'Jesus Christ, the fucking cops!,' turned and dashed back into the room, leaving the door open. The officers followed. Believing the girl had obtained narcotics in the apartment, one of the officers surmised immediately that defendant was rushing back in the apartment to destroy narcotics. The other officer simply followed his partner.

The first officer testified that a common way of disposing of narcotics is to flush them down the toilet. The defendant in this case ran into the bathroom and took a cardboard box top from the top of the toilet. He opened the bathroom window and threw it out the window. The officer, having observed defendant's action, looked out the window and saw that the box had landed on an outside ledge. He picked up the box top, examined it and found that it contained a marijuana cigarette and a portion of a green leafy substance that resembled marijuana. The officers then searched the apartment and found a paper bag under a couch containing some additional green leafy substance. The officers then arrested defendant.

During the time that one of the officers was making the search the other officer had a conversation with defendant in which the defendant made certain statements, freely and voluntarily. When asked where he had obtained the marijuana, he told the officer he had bought four bags of marijuana for $12; that he did not know the seller's name; that he had then left. When asked if he smoked marijuana he stated that he did but not very much, sometimes half a cigarette or maybe one or two cigarettes a day; that he had been using marijuana for approximately three years but that he wasn't 'hooked on it' and just did it for enjoyment; that he did not sell any and merely bought the four sacks for his own use.

In Tompkins v. Superior Court, 59 Cal.2d 65, 67, 27 Cal.Rptr. 889, 891, 378 P.2d 113, 115, the court said: 'Petitioner made a prima facie case that his arrest and the search and seizure were illegal when he established that they were made without a warrant. The burden then rested on the prosecution to show proper justification. (Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23, and cases cited.)'

The officers had no warrant either to arrest defendant or to search him or his premises. However, a search without a warrant is proper when it is incident to a lawful arrest. (People v. Torres, 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 366 P.2d 823.) But an informant must be reliable, or tested, to provide reasonable cause (People v. Cedeno, 218 Cal.App.2d 213, 220, 32 Cal.Rptr. 246), and, the girl in the case here, denying use of narcotics, the other evidence, consisting of her disheveled appearance and physical condition, only 'pointed the finger of suspicion at the defendant.'

The committing magistrate found that the officers had probable cause to believe that a felony had been committed in the apartment in question, and we believe justifiably so. In People v. Wilson, 183 Cal.App.2d 149, 152, 6 Cal.Rptr. 872, 874, the court stated: '[o]n a motion to set aside an information, the question of the guilt or innocence of the defendant is not before the court, nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. The court is only to determine whether the magistrate, acting as a man of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant participated. Proof of guilt need not be demonstrated. The court may not substitute its judgment as to the weight of the evidence for that of the...