People v. Martinez

• Decision Date: 11 March 1965
• Docket Number: Cr. 9608
• Citation: 43 Cal.Rptr. 197,232 Cal.App.2d 796
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ralph MARTINEZ, Jr., Defendant and Appellant.

Page 197

43 Cal.Rptr. 197

232 Cal.App.2d 796

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ralph MARTINEZ, Jr., Defendant and Appellant.

Cr. 9608.

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

March 11, 1965.

Hearing Denied May 12, 1965.

Morris Lavine, Los Angeles, for appellant.

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

FLEMING, Justice.

Defendant was convicted of possession of heroin for sale (Health and Safety Code, § 11500.5) with two prior felony convictions of possession of narcotics (Health and Safety Code, § 11500). On appeal defendant charges the use os evidence obtained by illegal search and seizure, and insufficiency of the evidence to support the verdict.

During February 1963, Los Angeles police officers received information from several informers, two of whom were reliable, that the defendant was selling heroin. This information was corroborated in part by subsequent personal observations and investigations of the police. Armed with this information, eight officers on the night of February 23, 1963, proceeded to the vicinity of defendant's house and staked out the area about 7:00 p. m. Defendant's house was a two-story structure to the rear of a larger front house occupied by his landlord. On one side of these houses a private driveway slanted up and led back to an open shed-type garage not connected with either of the houses. Attached to defendant's house was a small washroom. Several officers hid behind the garage, while the rest stayed half a block down the street.

About 9:30 or 10:00 p. m. defendant drove up the driveway, parked in the garage, entered the rear house, and then returned and re-entered his car. At that moment two officers approached the car, shone a floodlight upon defendant, and jerked the car door open. Defendant threw himself to the opposite side of the car with his head down, placed both hands at his face, and appeared to be putting something in his mouth. As he was being pulled from the car, he kept his hands to his face, and while being handcuffed, he was chewing and swallowing.

Several officers went to the rear house where Otillia Johnson, who lived with the defendant, was standing in the doorway. After the officers identified themselves they asked if defendant lived there, and when she said he did, they then walked past her into the house. Around the kitchen sink they found a pyrex plate, a razor blade, a measuring spoon, a can of milk sugar, and a small portion of powder containing a quarter of a grain of heroin. On finding this material the officers questioned the defendant and as a result of information given them then conducted a search of the washroom, which produced five condoms containing over three ounces of heroin.

While these events were taking place, other officers entered the front house where the landlord resided and searched his premises without his consent. Several outbuildings--a workshop attached to the front house, a storage shed attached to the garage, and a small house in the rear of defendant's house--were also searched, one of them by forcible entry. These searches produced no contraband.

A short time after the heroin was found in the washroom, defendant told an officer he had swallowed a quarter ounce of heroin. Asked if he were using enough so it wouldn't bother him, defendant said, 'No, I feel like I am going on a nod now.' (Passing out as a result of too much heroin.) On being told he could be taken to the hospital and could get the stuff back up, defendant said. 'Yes, I would like to go to the hospital, go to the doctor and get this out.' He was taken to the hospital where he drank a saline solution which made him throw up.

After the hospital, defendant was taken to the police administration building for questioning, approximately midnight according to the police, closer to 1:00 a m. according to defendant. During this questioning defendant told the police he had approximately two and a half ounces of heroin in the condoms which was uncut. He had been selling heroin for approximately one month, pieces for $145 and quarters for $45. A piece is an ounce, and a quarter is a quarter ounce. The paraphernalia in the kitchen belonged to him, defendant said, and was used to cut the heroin prior to sale.

In his defense defendant denied selling narcotics and denied making movements with his hands prior to his arrest. He testified that during the search of his house he was taken into the bedroom by officers and hit about 25 times with the back of a flashlight in the stomach and threatened with being blown up with a hand grenade. He said he drank the saline solution at the hospital because the police told him that if he didn't drink it they would take him out and put a bullet through his head and make it look as though he were trying to escape.

1) Arrest and Search

The defendant was arrested and his house searched without an arrest or search warrant. However, an arrest without a warrant is valid whenever it is founded on a reasonable belief that the person to be arrested has committed a felony. (Penal Code, § 836; People v. Ingle, 53 Cal.2d 407, 412, 413, 2 Cal.Rptr. 14, 348 P.2d 577.) Information from a reliable informer, plus corroboration by the personal observations of the police, are more than sufficient grounds to believe a felony has been committed and thus justify an arrest without a warrant. (Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36; People v. Prewitt, 52 Cal.2d 330, 341 P.2d 1.) In this case the police had reasonable cause to make an arrest. (People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57; People v. Crowley, 193 Cal.App.2d 310, 14 Cal.Rptr. 112.)

A search incident to a valid arrest is also valid. (Ker v. California, 374 U.S. 23, 41-43, 83 S.Ct. 1623, 10 L.Ed.2d 726; In re Sterling, 232 A.C.A. 203, 42 Cal.Rptr. 519.) But whether the subsequent search of the house was incident to the arrest must be considered in the light of ...