People v. McClure

• Decision Date: 10 May 1974
• Docket Number: Cr. 23887
• Citation: 39 Cal.App.3d 64,113 Cal.Rptr. 815
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Norman McCLURE, Defendant and Appellant.

Page 815

113 Cal.Rptr. 815

39 Cal.App.3d 64

The PEOPLE of the State of California, Plaintiff and Respondent, v. Norman McCLURE, Defendant and Appellant.

Cr. 23887.

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

May 10, 1974.

Rehearing Denied June 5, 1974.

Hearing Denied July 3, 1974.

Richard S. Buckley, Public Defender, Harold E. Shabo, William Berland and Ronald B. Davey, Deputy Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Norman H. Sokolow and Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent.

BEACH, Associate Justice.

Defendant appeals a judgment of conviction for possession of heroin. By stipulation the case was submitted to the superior court upon the transcript of the preliminary hearing. Defendant made a motion to suppress evidence under Penal Code section 1538.5.

FACTS:

A confidential reliable informant told police officer Neie that informant had bought heroin from appellant. Informant described appellant and told the officer where appellant lived. The officer and other police went to appellant's apartment to arrest appellant. Officer Neie knocked on the apartment door and said 'Police officers, narcotic investigation.' After a voice from within asked 'Who is it?' Officer Neie replied 'Police officers, narcotic investigation. You are under arrest. Open the door.' Eight to ten seconds later appellant opened the door. Officer Neie entered and placed appellant under arrest for possession of heroin. Officer Neie advised appellant of his constitutional rights. Appellant said he understood these rights and would talk to Officer Neie. Appellant consented to a search of his apartment. The search revealed narcotic user's equipment and a quantity of heroin. The officers had no warrant for the arrest of defendant or for search. Appellant was prosecuted and convicted for possession of the heroin recovered in this search.

APPELLANT'S CONTENTION:

Upon these facts appellant makes the following contention: 'Where there is no emergency or other exigent circumstances justifying a police officer's failure to seek and obtain a search warrant for a private apartment and an arrest warrant for the apartment's occupant, the officer's failure to secure lawful warrants renders invalid a warrantless search of such apartment made immediately after the warrantless arrest of such occupant, even if performed with purported consent given immediately after such arrest.'

OUTLINE OF APPELLANT'S ARGUMENT AND CONTENTIONS:

We trace appellant's argument as follows: (1) The search was unlawful because the consent thereto was invalid. (2) The consent was invalid because the arrest was invalid. (3) The arrest was unlawful because it was for prior possession of narcotics but the police had only probable cause to arrest for a prior sale of narcotics; and therefore the arrest was but a 'PRETEXT' TO PURSUE A SEARCH WHICH HOPEFULLY would disclose the necessary evidence to support a charge of contemporaneous possession of narcotics. ¹

We do not agree with appellant and we affirm the conviction.

DISCUSSION: ²

1. The Arrest Was Lawful.

Appellant's claim that the police had probable cause to arrest appellant only for prior sale of heroin is erroneous. The officer had equally probable cause to arrest appellant for the crime of prior possession of heroin, i.e., his possession at the time appellant made the sale to the confidential reliable informant. It was reasonable for the officer to infer physical possession of heroin by defendant at the time he made the sale about which the officer was told by the informant. ³ At the preliminary hearing and at the hearing of the motion to suppress evidence, the police refused to identify the informant. This they were entitled to do. ⁴ This refusal by itself, or with the added fact that the police had promised the informant they would not disclose his identity, does not lead to the conclusion that the police could not have sought to prosecute defendant for the sale of heroin. As a practical matter, it might have been most difficult to prove the sale of narcotics. But that does not erase the officer's knowledge of a sale of heroin by defendant and the necessary possession by defendant as a part of the offense. Such difficulties of proof do not reduce the arrest to a 'pretext.' Under established tests the officer had the right to arrest appellant. Based upon the police refusal to divulge the informant's identity, appellant asserts that the police did not intend to prosecute a case based on the informant's testimony. This assertion is purely speculative. At the time the police went to arrest appellant, they had no knowledge that a search of appellant's apartment would divulge evidence incriminating appellant. If the search had not revealed incriminating evidence or if the police for some reason had been unable to search appellant's apartment, the police nonetheless were possessed of sufficient information and evidence to support an accusation for sale of heroin or for possession of heroin. The People could have prosecuted the defendant for these offenses. The People could have called the informant to testify irrespective of any promise made to him by the police, for the ultimate authority to decide for or against prosecution does not belong to the arresting officer, but rests with the district attorney as the representative of the People.

Assuming, Arguendo, the correctness of appellant's conclusion that Officer Neie never intended to charge appellant with possession of heroin on the basis of the informant's testimony, that fact is immaterial. Officer Neie's intentions did not affect his knowledge of articulable facts that gave him the right to arrest. It is the right to arrest that is being tested. If a right exists, how can it be said that the exercise of that right is a pretext? A pretext is a false thing. A pretended thing. Here the officer did not pretend to arrest appellant secretly intending not to arrest him. He did in fact arrest appellant. The question with which we are concerned is not 'why did the officer want to arrest this particular defendant?' but rather 'was there reasonable cause to arrest this particular defendant?' The arresting officer's secret intentions, hopes, or purposes have nothing to do with the legality of the arrest. The legality which is based upon reasonable cause is tested by objective standards, and as we have indicated, there was reasonable cause. Appellant has not demonstrated here, nor did he object at the hearing, that there was no reasonable cause for his arrest. His claim is solely that the arrest was illegal because the officer subjectively intended to use the arrest for another purpose, to wit, a search.

Appellant relies principally upon People v. Haven, 59 Cal.2d 713, 719, 31 Cal.Rptr. 47, 381 P.2d 927, in support of his claim. Haven provides no support for appellant. Haven and the cases like it, including the two United States Supreme Court cases upon which they basically rely, United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, and Go-Bart v. United States, 282 U.S. 344, 358, 51 S.Ct. 153, 75 L.Ed. 374, do not say that a lawful arrest becomes unlawful by reason of subsequent conduct during a search. The Haven cases simply establish and recite a rule that is not disputed here, that an invalid search cannot be based solely upon a valid arrest. In other words, those cases hold merely that a valid arrest allows only a limited 'search.' This so-called 'search,' at least since the time of United States v. Lefkowitz, Supra, has been sometimes denominated a 'search incident to arrest.' There is no such thing as a ...