People v. Melody
| Decision Date | 31 October 1958 |
| Docket Number | Cr. 6281 |
| Citation | 331 P.2d 72,164 Cal.App.2d 728 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas Harlan MELODY, Defendant and Appellant. |
John H. Marshall, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Bonnie Lee Hansen, Deputy Atty. Gen., for respondent.
Defendant was charged by information with possession of marijuana and a preparation of codeine in violation of section 11500, Health & Safety Code. He waived a jury and the cause was thereafter submitted, by stipulation of the parties, on the transcript of the preliminary hearing. Additional testimony was introduced on behalf of both the People and defendant. The trial court found defendant guilty as charged, denied a motion for a new trial and sentenced him to the county jail for six months. This appeal is from the judgment of conviction and order denying motion for new trial.
Viewing the evidence in the light most favorable to the prosecution, the record discloses that on the evening of October 6, 1957, at approximately 9:30 o'clock Officer Fantuzzi received information from a confidential informant that defendant had marijuana in his home at 2953 Park Center Drive. Information received by Fantuzzi from this same informant on three previous occasions had proved reliable, resulting in the arrest of five persons, four of whom had been held to answer in the superior court. Approximately one hour later Fantuzzi, accompanied by two other officers, appeared at the designated address and observed the premises for about ten minutes. Nothing indicated that a felony was being committed within the house. The three officers then went to the front door, knocked, identified themselves as police officers and were admitted into the front room by defendant. After the officers again identified themselves, defendant was placed under arrest for a violation of the Health and Safety Code, but was not handcuffed. Asked then by the officers if they could search the house defendant said, 'Sure, go ahead.' The search produced a brown paper bag, a container with two white-wrapped cigarettes, a jar and a bottle, all containing a leafy material identified by experts as marijuana. A small pill bottle with 31 tablets was also found. These tablets contained a narcotic known as codeine. Questioned by one of the arresting officers about the contents of the brown paper bag, defendant admitted part ownership thereof, along with three other persons. He also stated that the marijuana in the other containers came from this original sack or bag. Defendant likewise admitted ownership of the codeine which he said was originally procured from a doctor in Honolulu. He did not have the prescription for the drug but claimed he could secure it if given the opportunity. Police then took defendant to the station and booked him for a violation of the State Narcotics Act. At no time was the informer present, nor did he accompany the officers to the premises.
Defendant took the stand in his own defense, but limited his testimony to the circumstances of the arrest and search. He at no time denied that the narcotics were found in his house or that they were owned by him. Defendant's admission to the police officers that the premises were under his control and the narcotics found thereon belonged to him remains uncontradicted in the record. However, in connection with the arrest and search, he testified that he arrived at the Park Center address at about 10:00 o'clock on the evening in question. He denied that he admitted the officers voluntarily, stating that they just pushed the door in, then pushed him down into a chair and told him that he was under arrest. Defendant testified that upon being asked then if they could search the premises, he told the officers 'if it will do me any good I will say no.' In making this statement, defendant added he intended to deny them permission to search the premises. On cross examination, the defendant admitted the search took place after the officer's conversation with him.
(Mr. Busch) 'Q. Did they say, 'Is it all right with you if we search the place?''
(Defendant) 'A. I don't remember how they asked. They did make the search.
During Officer Fantuzzi's cross-examination, he was asked by defendant's counsel the name of the confidential informant. After being advised by the court that under section 1881(5), Code of Civil Procedure, he could not be examined as to communications made to him in an official confidence, when the public interest would suffer by a disclosure, the officer declared that such disclosure would not be in the public interest and refused to name him. The trial court did not require him to give the information requested.
The record is vague concerning the manner in which Officer Fantuzzi's testimony, concerning the information he received from the informer which led up to defendant's arrest, was admitted by the trial court. Unable to definitely advise the court whether there existed a question concerning the legality of the arrest or search and seizure, defendant's counsel requested that the testimony be admitted subject to a motion to strike. It was admitted and the trial court advised counsel he could later make a motion to strike. The record does not disclose that defendant's counsel ever did so. However, it is apparent throughout the trial defendant constantly claimed that the arrest and search and seizure were illegal.
Appellant herein contends that the contraband was secured as the result of an unlawful search and seizure and the trial court erred in denying his motion to suppress the evidence; and that the trial court committed prejudicial error in upholding Officer Fantuzzi's refusal to reveal the name of the informer. The record before us does not disclose the existence of a motion to suppress the evidence or any ruling thereon, although it does reveal a proper objection to the introduction of the narcotics in evidence on the ground that they had been obtained as the result of an illegal arrest and an unlawful search and seizure.
Appellant has relied upon the illegality of his arrest to establish an unlawful search and seizure of the narcotics. Although under the recent Supreme Court case of Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39, the officer's testimony, concerning information given by the informer which was relied upon by him in arresting defendant, should have been stricken because of his refusal to reveal the identity of the informer, which would leave in the record the defendant's initial arrest without a showing of probable cause therefor, we conclude that the search of his house and the ultimate seizure of the narcotics found were made pursuant to the voluntary consent of the defendant, which justified his subsequent detention for the offense herein charged.
In the Priestly case, police acting upon the information of two informers that defendant possessed narcotics, went to defendant's apartment. After being admitted by the defendant, they arrested him and searched his person and apartment finding narcotics. The arrest and search were made without a warrant. There was no evidence that defendant in any way consented to the search. The record therein discloses that the police relied entirely upon the information of the informants to establish probable cause to make the search. The officer on direct examination testified concerning communications from the informers, but upon defendant's demand that he disclose their identity, or his testimony be struck, the officer refused to reveal their names. The motion to strike was denied. Citing, and declaring to be sound and workable the federal rule in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, requiring disclosure of the identity of an informer whose communications are relied upon to establish probable cause to make a search, the court held that when the prosecution seeks to show reasonable cause for a search by testimony of communications from an informer, either the identity of the informer must be disclosed when defendant seeks it, or such testimony must be struck on defendant's motion; and disapproved any holdings or implications to the contrary in People v. Johnson, 157 Cal.App.2d 555, 321 P.2d 35; People v. Salcido, 154 Cal.App.2d 520, 316 P.2d 639; People v. Moore, 154 Cal.App.2d 43, 315 P.2d 357; People v. Marino, 151 Cal.App.2d 594, 312 P.2d 48; People v. Alaniz, 149 Cal.App.2d 560, 309 P.2d 71, and People v. Gonzales, 141 Cal.App.2d 604, 297 P.2d 50. The court said at page 818, of 50 Cal.2d at page 43 of 330 P.2d: ...
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