People v. Lyles

• Decision Date: 13 March 1968
• Docket Number: Cr. 13522
• Citation: 260 Cal.App.2d 62,66 Cal.Rptr. 799
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Lee LYLES, Defendant and Appellant.

Page 799

66 Cal.Rptr. 799

260 Cal.App.2d 62

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Lee LYLES, Defendant and Appellant.

Cr. 13522.

Court of Appeal, Second District, Division 1, California.

March 13, 1968.

Claude Vibart Worrell, Sr., Worrell & Niles, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

Charged by indictment with possession of heroin for sale (§ 11500.5, Health & Saf.Code) and possession of marijuana for sale (§ 11530.5, Health & Saf.Code), defendant was found guilty and sentenced to the state prison. He appeals from the judgment and order denying motion for a new trial. The appeal from the order is dismissed.

On April 3, 1966, Lapriel Alyett, the manager of an apartment house at 4620 Coliseum Drive, rented apartment 204 to defendant whom she knew as Jose Rodriguez, for which he gave her a deposit; on April 9, 1966, he paid the rent for the balance of the month and on May 7, 1966, he paid another month's rent to Mrs. Urban, assistant manager, who issued the receipt to 'Jose Rodriguez.' Almost every day Mrs. Alyett saw defendant come and go from apartment 204.

Officer White had made an investigation concerning the utilities in apartment 204 and learned that the telephone was registered to defendant. Around 12:16 a.m. on June 1, 1966, the officer was near the front of 4620 Coliseum Drive when he saw one Haley, a narcotic drug addict free on bail on a charge of selling heroin, arrive at the address in a white Oldsmobile station wagon; Haley remained in the car. Then he observed defendant in the company of a woman approach Coliseum Drive in a late model Pontiac and stop half a block from Haley's automobile. Defendant got out of his car, walked up to the Oldsmobile and opened the door; Officers White and Sanderson then approached him. Officer White asked defendant for identification and his purpose for being in that neighborhood; defendant gave him an out-of-state license in his name and said he lived at 118th Place. Officer White asked him if he had anything to do with or if he lived in apartment 204 at 4620 Coliseum Drive in front of which they were standing; defendant said he was on his way to see a girl in Hollywood, he lived at 118th Place and he had nothing to do with apartment 204. Then Officer White asked if he had any objection to a search of apartment 204 and defendant replied, 'I have no objection. I have nothing to do with apartment 204.' The officers and defendant went to the manager's apartment and knocked; Office White asked her if she knew defendant and she replied, 'Yes, that is Mr. Rodriguez, he lives in apartment 204.' The officer then turned to defendant, who was standing near him, and informed him that the manager had identified him as the person renting and living in apartment 204, and asked him again if he had any objection to a search of the apartment; defendant said that he did not live there and did not care what they did to the apartment. Then four officers, including White and Sanderson, defendant and the manager went to 204; the manager provided the key and Officer Garrahan unlocked the door.

The following were found in apartment 204: a red suitcase containing 8 bags of marijuana weighing 21 pounds; a brown suitcase containing 2 grams of marijuana; 2 boxes of rubber contraceptives; a can of material marked 'Merck USP Powder'; a box containing measuring spoons, transfer funnels, etc.; an apartment lease and an application to rent. Seventeen rubber contraceptives contained powder weighing 288 grams, nine of which were tested. Two contained a yellow powder weighing 15 grams--negative for narcotics; seven contained 10% Heroin. Of seventeen small balloons weighing 8.4 grams found in the apartment, four were tested; they contained 10% Heroin. It was Officer White's opinion that the heroin and marijuana were possessed for the purpose of sale, based on the quantity, the quantity packed in each package, the quality, the manner in which the narcotics were packed and the paraphernalia and the equipment found in the apartment. The quantity of marijuana would make over 40,000 cigarettes at a fair market value of $.50 each. Part of the paraphernalia was the measuring can of milk sugar which is a sterilized substance commonly used by narcotic users to dilute heroin and to extend the quantity. Defendant was arrested. Officer White also recovered $903, $185 of which was found on a couch cushion in the apartment, the remaining on defendant.

Appellant's contention that his arrest was without probable cause, thus the search of apartment 204 was not lawful, is predicated on the unsupported claim that he was arrested on the sidewalk.

Before Officer White went to 4620 Coliseum Drive, he knew that the telephone in apartment 204 was registered to defendant; a little after midnight he saw a narcotic addict on bail on a charge of selling heroin arrive at the address and remain in his parked car; then he saw defendant approach Coliseum Drive, park half a block away, walk to the automobile in which the addict waited and open the door. There is nothing improper about an officer approaching a pedestrian on the street for questioning when to a reasonable person such a course of conduct appears necessary to the discharge of his duty (People v. Martin, 46 Cal.2d 106, 108, 293 P.2d 52; People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57; People v. Michael, 45 Cal.2d 751, 752, 290 P.2d 852;), and circumstances short of probable cause to make an arrest may justify such action. (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Dumas, 251 Cal.App.2d ---, --- ^a, 59 Cal.Rptr. 541.) Officer White had the right to detain defendant for the purpose of investigation and for questioning. The officer asked him for his identification and what he was doing in the neighborhood; defendant gave him an out-of-state driver's license in his name and told him he lived at 118th Place and was going to see a girl in Hollywood. Asked if he had anything to do with or lived in apartment 204, defendant answered that he lived on 118th Place and had nothing to do with the apartment and had no objection to a search of apartment 204. Upon being advised by the manager that defendant was Mr. Rodriguez who lives in apartment 204, the officer again asked defendant if he had any objection to a search of apartment 204; he answered that he did not live there and did not care what they did to the apartment. The inconsistencies which had become apparent by the manager's identification of defendant as residing in apartment 204, the officer's prior knowledge that a telephone in the name of defendant had been installed in apartment 204 and defendant's denial that he lived there or knew anything about the apartment, justified further investigation. Thus, they went to the apartment and with a key supplied by the manager the door was unlocked. The search revealed the narcotics which justified defendant's arrest. (§ 836, Pen.Code; People v. Cockrell, 63 Cal.2d 659, 665, 47 Cal.Rptr. 788, 408 P.2d 116; People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577.)

Appellant claims there was no factual consent to search apartment 204 and, even if there were, the same was obtained by illegal conduct of the police, and, in any event, the consent was not voluntary. Twice defendant disclaimed any knowledge of apartment 204 and in response to whether he objected to a search of the apartment he told the officers he did not, he did not live there and did not care what they did to the apartment.

Whether in a particular case consent was in fact given and the same was voluntary, is a question of fact to be determined in light of all the circumstances. (People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852; People v. Bilderbach, 62 Cal.2d 757, 762--763, 44 Cal.Rptr. 313, 401 P.2d 921; People v. Smith, 63 Cal.2d 779, 798, 48 Cal.Rptr. 382, 409 P.2d 222.) A finding in this...