People v. Layne

• Decision Date: 21 June 1965
• Docket Number: Cr. 1653
• Citation: 45 Cal.Rptr. 110,235 Cal.App.2d 188
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Dennis LAYNE, Defendant and Appellant.

Page 110

45 Cal.Rptr. 110

235 Cal.App.2d 188

The PEOPLE, Plaintiff and Respondent, v. Michael Dennis LAYNE, Defendant and Appellant.

Cr. 1653.

District Court of Appeal, Fourth District, California.

June 21, 1965.

Hearing Denied Aug. 18, 1965.

Gostin & Katz, San Diego, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Stanley Mosk, Atty. Gen., William E. James, Asst.Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

COUGHLIN, Justice.

Defendant was charged with the offenses of possession of marijuana and of heroin, i. e., violations, respectively, of §§ 11530 and 11500 of the Health and Safety Code, to which he pled not guilty; also was charged with a prior conviction of possession of narcotics which he admitted; was convicted; and appeals from the judgment. A co-defendant, Foster, pled guilty to the offense of possession of marijuana.

Three principal issues are presented by the appeal, viz., whether (1) the court erred in denying defendant's motion to suppress evidence obtained under a search warrant; (2) admission of incriminating statements contrary to the exclusionary rule announced in People v. Dorado, 62 A.C. 350, 42 Cal.Rept. 169, 398 P.2d 361 requires reversal; and (3) the court erred in commenting upon the defendant's failure to testify.

Police officers entered a residence at 4182 Marlborough Avenue in the City of San Diego pursuant to a search warrant authorizing a search thereof, and of the person of the co-defendant, for the unlawful possession of marijuana and paraphernalia for the use of marijuana. As one of the officers entered the premises he detected the odor of burning marijuana; after entry saw the defendant; engaged the latter in conversation; noted that his speech was slurred, his actions were slow and deliberate and the pupils of his eyes were dilated; questioned the defendant further about the use of narcotics; and accompanied the defendant to his bedroom where the officers noted a strong odor of marijuana smoke. While in the bedroom the defendant fumbled in his right front pocket, purportedly attempting to produce a prescription about which the officer previously had asked him; produced the prescription and immediately placed something back into his pocket; was asked by the officer what he was attempting to hide; and made no reply or movement to show what he had placed in his pocket. Thereupon the officer arrested the defendant for being under the influence of marijuana; searched the pocket in question; and removed two hand-rolled marijuana cigarettes. Upon a further search of the premises the officers discovered heroin and the paraphernalia adapted to its use.

The defendant claims that the search warrant pursuant to which the officers entered the premises was issued without probable cause; for this reason did not authorize the entry; and, as a consequence, the subsequent search and seizure were illegal. Issuance of the warrant was based upon an affidavit of the police officer wherein it was stated that in May, 1963, Foster, the co-defendant, had committed the offense of unlawful possession of marijuana; that Foster lived with the defendant at 4182 Marlborough Avenue, in the City of San Diego; that affiant had received information from a person known to him personally, from whom he had received information in the past upon which he acted and found to be accurate and reliable, that during the last week of May, 1963, the informant purchased approximately one ounce of marijuana from the co-defendant at the latter's residence at 4182 Marlborough Avenue; that the foregoing information was given to affiant in official confidence, and the identification of the informant could not be revealed because the public interest would suffer from such disclosure; that on May 29, 1963, the officer observed Alfred Villalores, Jr., a known narcotics user, enter the residence at 4182 Marlborough Avenue, and leave a short time later apparently under the influence of some substance; that on June 3, 1963, Jesus Romo, a known narcotics user, was observed visiting the residence in question; and that the officer had determined by investigation that the co-defendant lived at 4182 Marlborough Avenue. The affidavit concluded with the prayer that a search warrant issue for the recovery of marijuana and paraphernalia for the use of marijuana from the premises at 4182 Marlborough Avenue, and from the person of the co-defendant.

At the trial, as well as at the preliminary hearing, the defendant moved to exclude the evidence obtained under the search warrant; was granted a hearing thereon; and produced witnesses contradicting some of the allegations contained in the affidavit which was the basis for issuance of the warrant. In each instance the motion was denied. The testimony of the witnesses produced by the defendant created merely a conflict with the evidence produced by the affidavit, which was resolved against his contention. The allegations in the affidavit supported issuance of the warrant under the rules stated and applied in People v. Prieto, 191 Cal.App.2d 62, 68, 70, 12 Cal.Rptr. 577; People v. Williams, 175 Cal.App.2d 774, 775-776, 1 Cal.Rptr. 44; Epople v. Nelson, 171 Cal.App.2d 356, 360, 340 P.2d 718; People v. Bates, 163 Cal.App.2d 847, 852, 330 P.2d 102; Arata v. Superior Court, 153 Cal.App.2d 767, 771-772, 315 P.2d 473; People v. Acosta, 142 Cal.App.2d 59, 62-64, 298 P.2d 29. Although the warrant under which the officers acted authorized only a search for marijuana, their seizure of heroin discovered in the course of that search was proper and the evidence thus produced was not illegally obtained. (People v. Ortiz, 147 Cal.App.2d 248, 251, 305 P.2d 145; People v. Acosta, supra, 142 Cal.App.2d 59, 64-65, 298 P.2d 29.) Likewise, the fact that the warrant described the premises as those of the co-defendant, situated at 4182 Marlborough Avenue, San Diego, California, under the circumstances of this case, did not foreclose entry of the premises jointly occupied by the co-defendant and the defendant. (People v. Phillips, 163 Cal.App.2d 541, 545, 548, 329 P.2d 621.) The affidavit in support of the warrant established this joint occupancy. In addition, the affidavit supported the conclusion that persons entering the subject residence were obtaining narcotics therein, supporting the inference that those in occupancy thereof were in possession of narcotics.

During the hearing on the motions to exclude evidence obtained by virtue of the search warrant, the defendant sought disclosure of the identity of the informer referred to in the officer's affidavit. Disclosure was refused. Thereupon he urged that the information given by the informer be excluded in determining the sufficiency of the...