People v. Morris

• Decision Date: 21 December 1962
• Docket Number: Cr. 8126
• Citation: 211 Cal.App.2d 274,27 Cal.Rptr. 129
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Walter MORRIS, Jr., and William Wads-worth Sanders, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 129

27 Cal.Rptr. 129

211 Cal.App.2d 274

The PEOPLE of the State of California, Plaintiff and Respondent, v. Walter MORRIS, Jr., and William Wads-worth Sanders, Defendants and Appellants.

Cr. 8126.

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

Dec. 21, 1962.

Harold Cutler, Los Angeles, for appellants.

Stanley Mosk, Atty. Gen., William E James, Asst. Atty. Gen., Walter E. White, Deputy Atty. Gen., for respondent.

HERNDON, Justice.

This appeal is taken by defendants following their conviction of possession of heroin in violation of section 11500 of the Health and Safety Code. Appellants waived a jury trial, and pursuant to stipulation, the cause was duly submitted upon the evidence contained in the transcript of the preliminary hearing. The sole question presented for our consideration is the lawfulness of the search and seizure made in this matter. Neither defendant testified. We shall summarize the uncontradicted testimony of the arresting officers.

On January 6, 1961, Officer Westbrook and his partner, Officer Kellough, were advised by detectives at the University Station that a warrant was outstanding for the arrest of one Lynda Ashley upon a charge of forgery. The named officers were advised also that the wanted party resided at 4194 Garthwaite, Los Angeles, but that when other officers had called at said address a few days earlier and identified themselves as police officers, they heard the rear door slam and had been unsuccessful in contacting the wanted party. Officers Westbrook and Kellough went to the designated address at about one o'clock a.m. on January 7, 1961.

The officers went up the front steps and proceeded to the front door. It was dark, but a light was on in the front room. Officer Westbrook knocked on the door and the officers waited two or three minutes. Officer Westbrook heard voices emanating from inside. Westbrook then told his partner to go around back, remembering the experience of the officers who previously had been there on the same mission.

Officer Kellough proceeded around the apartment to the rear door. Officer Westbrook waited about a minute and then knocked again. Thereupon a person inside with a male voice asked, 'Who is it?' Westbrook replied, 'Police officers. Open the door.' The person inside said, 'One minute, Officer.' The officer stood waiting for another two or three minutes.

Meanwhile, Officer Kellough had proceeded to the rear door, observing that it had a plate glass window which was not curtained. He looked through the window into the apartment and saw appellants Sanders and Morris hurrying toward the rear door. Officer Kellough, whose training and experience in narcotics matters had been extensive, observed appellant Sanders following closely behind, and a little to one side, of Morris with a piece of wrapped brown paper and a spoon in his left hand. Appellant Morris arrived at the rear door, unlocked and opened it. He stepped forward, whereupon Officer Kellough pushed him back inside the kitchen, saying, 'All right, let's get back inside.' Sanders, who was two or three feet behind Morris, immediately rushed into the dining room and placed the brown paper and spoon on a small table. Officer Kellough then had appellants Morris and Sanders accompany him to the front living room and had Morris let his partner in. Officer Westbrook then entered the living room. The spoon that had been placed upon the table was found to be burnt upon its underside and the wrapped brown paper contained a piece of cotton and a hypodermic kit with a needle. Numerous balloons of white powder were also found on this table.

With everyone present, Officer Kellough then searched Sanders and found in his pocket a red balloon. Kellough opened the red balloon and found that it contained a white powdery substance. He then spoke to appellant Sanders, who freely and voluntarily said: 'Look's like I'm going again. I have been using this stuff for several months. I can't tell you where I got it from. You know that. I don't know how this balloon got in my pocket.' During this conversation, Morris was within a couple of feet of Officer Kellough and appellant Sanders. Kellough arrested and handcuffed Sanders. After the first conversation, Kellough asked Sanders the nature of the substance in the red ballon and he replied, 'This is not herein. It is cocaine.'

Officer Westbrook questioned Morris concerning the plastic bag and the balloons of white powder, asking, 'Where did you get this stuff?' Appellant Morris replied, 'You know I can't tell you that, Officer.' Westbrook also asked him whether he used narcotics and Morris answered that he did but that he was not 'hooked'. This conversation also took place in the living room, Morris conversing freely and voluntarily with appellant Sanders standing about six feet away.

Officer Westbrook started to search appellant Morris, and as the officer approached his right front trouser pocket, he said, 'Wait, Officer. I have an outfit in my pocket. Don't stick you hand in there because you might get stuck.' The officer put his hand in slowly and removed an eye dropper attached to a hypodermic needle. The eye dropper was three-fourths full of a white liquid. The officers collected a number of articles, including the red balloon recovered from Sanders' pocket, transported them to Central Property Section and booked them as evidence. The powder in the red balloon was subsequently analyzed as being heroin.

Manifestly, the conduct of the arresting officers was most reasonable in every particular. In fact, in their brief, and before the trial court, appellants appear to have directed practically all of their argument to their assertions that the officers were unfamiliar with the case against Lynda Ashley and had made no attempt to verify that she lived at the address indicated. Not only is there no contention that the testimony of the officers is untrue in any particular, but more to the point, the testimony...