People v. Luke

• Decision Date: 23 April 1965
• Docket Number: Cr. 9954
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnnie Howard LUKE, Defendant and Appellant.

Page 878

43 Cal.Rptr. 878

233 Cal.App.2d 793

The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnnie Howard LUKE, Defendant and Appellant.

Cr. 9954.

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

April 23, 1965.

Leonard M. Angus,* Van Nuys, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., George J. Roth, Deputy Atty. Gen., David B. Stanton, Deputy Atty. Gen., for respondent.

ROTH, Presiding Justice.

Appellant was convicted of possession of narcotics by a nonjury trial, a violation of Health and Safety Code, section 11530. One of two alleged prior felonies also was found to be true.

On November 1, 1963, Officer Poor, during the course of a narcotics investigation, was standing on or near the corner of 60th and Avalon Streets in the City of Los Angeles, a high frequency narcotics area. He observed appellant on four separate occasions first talk to a third person and immediately thereafter walk to an abandoned car parked on a vacant lot adjoining a service station. On each of these four occasions when appellant reached the rear of the abandoned car, he stooped down and picked up what the officer believed to be a package or bindle which he then delivered to the person the officer had seen him talking with. The contents of these packages were never determined. After the four exchanges had been completed, appellant went into a nearby bar. Officer Poor went to the bar and motioned appellant to come out. When appellant came out, Poor asked him what he had in his pocket. Appellant removed his closed hand from his pocket. His fist contained a number of bindles which had been broken open and contained red capsules. The officer believed these capsules to contain barbituates.

Appellant was placed under arrest. Officer Poor then walked appellant back to the abandoned car and left him in the custody of his partner. Poor made a search of the area around and under the car. The search uncovered a large paper bag under the front of the car. This bag contained foil wrapped objects similar to those appellant had in his fist at the time he was accosted by Officer Poor. Continuing his search Officer Poor found a smaller paper bag under the rear of the car. This smaller bag contained two marijuana cigarettes.

Prior to November 1, Officer Poor had been informed by his supervising officer that appellant had been selling narcotics. Officer Poor had also been told by at least two persons, who in the past had proven to be reliable informers, that appellant was dealing in narcotics.

Appellant's defense was that he had not been near the car at any time during the evening of November 1, 1963, and that he had not been selling pills or narcotics and that he had never before seen the two bags found by Officer Poor under the front and rear of the abandoned car. He also produced evidence to the effect that he did not come out of the bar in response to Officer Poor's request but that Officer Poor came into the bar and after the officer put his hand on his shoulder he walked out with him.

Appellant contends that the evidence is insufficient to show his possession of the marijuana.

The contention in untenable. It is settled that actual physical possession of the narcotics is not a necessary element of the crime charged. Possession may be established under the doctrine of constructive possession. (People v. Blinks, 158 Cal.App.2d 264, 267, 322 P.2d 466; People v. Flores, 155 Cal.App.2d 347, 349, 318 P.2d 65.) Constructive possession, moreover, may be proven by circumstantial evidence. (People v. Weathers, 162 Cal.App.2d 545, 547, 328 P.2d 222; People v. Flores, supra; People v. Stanford, 176 Cal.App.2d 388, 390, 1 Cal.Rptr. 425.) In People v. Vice, 147 Cal.App.2d 269, at p. 274, 305 P.2d 270, at p. 273, the rule is stated as follows:

[To prove] 'possession, * * * the narcotics need not be found on the person of the defendant, it being sufficient if such articles are deposited in a place under the possession and control of the accused.'

The record before us establishes that appellant, within one hour, made four separate trips to the rear of the car, stooped down, picked up a package, and gave the package to another person. His arrest and the search of the car came within minutes after the fourth transaction. The bag found at the front of the abandoned car contained capsules similar to those found in appellant's physical possession. In addition appellant was known to Officer Poor as a dealer in narcotics. The conclusion is inescapable that appellant had constructive possession of the items found in the bags and that he had knowledge that the smaller bag found under the rear of the abandoned car contained marijuana. Contrary inferences that the car was accessible to other persons and did not belong to appellant are clearly apparent, but in view of the circumstances here detailed, they are entitled to little evidentiary value.

Officer Poor testified, over objection, that he had information from his supervisor that appellant was dealing in narcotics and that he had spoken to two other persons (unconnected with any of the four persons who were parties to the exchanges heretofore detailed), each of whom told him that appellant was dealing in narcotics. This testimony was admitted only for the purpose of establishing probable cause for the arrest of appellant.

Appellant urges that the source of Officer Poor's information was hearsay and thus inadmissible to establish probable cause; and that the informers were not sufficiently identified as reliable informers.

Probable cause to make an arrest as distinguished from proving the issue of guilt, however, may be established by evidence that would not ordinarily be admissible on the issue of guilt. (People v. Cartier, 170 Cal.App.2d 613, 618, 339 P.2d 172.) Thus, hearsay (People v. Elliott, 186 Cal.App.2d 185, 190, 8 Cal.Rptr. 716; People v. Collins, 172 Cal.App.2d 295, 301, 342 P.2d 370), even in the form of information obtained from anonymous or unreliable informers if sufficiently corroborated (People v. Elliott, supra; People v. Easley, 148 Cal.App.2d 565, 568, ...