People v. Murillo

• Decision Date: 28 March 1966
• Docket Number: Cr. 200
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ruben Acosta MURILLO, Defendant and Appellant.

Page 290

50 Cal.Rptr. 290

241 Cal.App.2d 173

The PEOPLE, Plaintiff and Respondent, v. Ruben Acosta MURILLO, Defendant and Appellant.

Cr. 200.

District Court of Appeal, Fifth District,

California.

March 28, 1966.

Gerald L. Thuesen and W. Stuart Home, II, Lerrigo, Thuesen & Thompson, Fresno, for appellant.

Thomas C. Lynch, Atty. Gen., John L. Giordano, Deputy Atty. Gen., Sacramento, for respondent.

CONLEY, Presiding Justice.

The defendant was charged with a violation of section 11500.5 of the Health and Safety Code--possession for sale of a narcotic (heroin) other than marijuana. He was also alleged to have had two prior felony convictions. Sometime after his original pleas were entered, he finally admitted the second prior conviction, and the district attorney then moved to dismiss the first charge of a prior conviction. The court, sitting without a jury, found the defendant guilty, and, when he waived a probation officer's report and requested immediate sentence, he was sent to state's prison.

Only one point is made on the appeal, namely, that the court erroneously admitted in evidence the contents of an attache case, belonging to the defendant; it was locked and in the apartment of a woman named Tony Lira, who, unknown to the defendant, was an informant of the enforcement agents; the officers did not have a search warrant and the defendant did not give specific permission to unlock the case; entry into it was made by means of a key removed, without permission, from the defendant's pocket by one of the law enforcement agents. In the attache case, was a rubber contraceptive containing a large quantity of heroin and also an improvised hypodermic syringe, including an eye dropper and a needle, apparently used by the defendant for the purpose of injecting heroin into his own arm. If the heroin taken from the locked case was properly admitted in evidence, there was an ample showing to support the conviction; in its absence, however, there was a failure of sufficient proof on the charge that the defendant not only had heroin in his possession, but that it was in such quantity that, inferentially, he intended it for sale. (People v. Coblentz, 229 Cal.App.2d 296, 320, 40 Cal.Rptr. 116; People v. Aguilar, 232 Cal.App.2d 173, 178, 42 Cal.Rptr. 666.)

The defendant thus relies upon his claim that he was not afforded the constitutional protection to which he was entitled. (U.S.Const., 4th and 14th Amends.; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513; Manwaring, California and The Fourth Amendment, 16 Stanford Law Review 318, 322.)

Murillo had an apartment in Oakland, and he rather frequently occupied rooms at several different motels, but for approximately a month before his arrest he had been living in her apartment with Tony Lira, who, unquestionably, during all of that time was an informant of the enforcement officers. Defendant, Murillo, began residing with her at 2640 Berkeley Street in Fresno on about December 12, 1964; Tony Lira called Agent Lloyd Duggins of the bureau to tell him that defendant was living with her, that he was engaged in the sale of forbidden drugs, and that he intended to go to Mexico to buy a supply of narcotics; Agent Duggins asked her to let him know when defendant planned to leave on the trip, the kind of automobile he was going in, with whom he planned to travel, and whether she intended to accompany him. He also asked her to let him know from whom Murillo bought the drugs and when they would return. The first contact between Tony Lira and Agent Duggins concerning Murillo was on December 12; the next consultation by telephone was on December 14, 1964; another conversation between the two with reference to the alleged narcotic activities of defendant, again by telephone, was on December 17; the next telephone conference was on December 19; on December 20 or 21, Tony Lira and Agent Duggins talked about defendant and other alleged narcotic lawbreakers; on December 28, 1964, a contact was effected between them with reference to the activities of defendant; on December 28, Tony Lira told Agent Duggins by telephone that she and defendant were traveling to Mexico to buy narcotics, gave him the license number and a description of the automobile they would use, the route they would take, the names of those who would join in the trip, and that they would return from Mexico on December 31. The next contact between the agent and the informer was at her apartment on the evening of January 1, when defendant was arrested; Agent Duggins testified that Tony Lira had been giving information as to lawbreakers for some nine months, that it had been reliable information and had resulted in the arrest and conviction of other persons.

On January 1, 1965, agents of the Bureau of Narcotic Enforcement placed Tony Lira's apartment under surveillance; at about 6:00 o'clock in the evening, defendant was watched as he left her dwelling and entered a taxi. The car was stopped by agents Sherwood and Lacey at Fresno and Cambridge Streets; armed with a search warrant directed toward the person of the defendant, the agents searched him but found no contraband; however, judging from the appearance of the defendant and the fact that he had fresh needle marks on his arm, the officers inferred that he was under the influence of narcotics and arrested him. The subsequent search of the apartment hereinafter referred to could not be justified as an incident of the arrest. (Castaneda v. Superior Court, 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 380 P.2d 641; Tompkins v. Superior Court, 59 Cal.2d 65, 67, 27 Cal.Rptr. 889, 378 P.2d 113; People v. Haven, 59 Cal.2d 713, 719--721, 31 Cal.Rptr. 47, 381 P.2d 927; People v. Martinez, 232 Cal.App.2d 796, 799--800, 43 Cal.Rptr. 197.)

Agent Lacey went to the residence at 2640 Berkeley Street about 200 or 300 yards from the intersection where the arrest was made; he joined agents Newland and Velasquez; they knocked at the door and an unidentified person from inside said, 'Who is it?' Velasquez then identified himself as a narcotics officer and asked permission to come into the house to find out whether or not it would be all right to conduct a search; Velasquez, Newland and Lacey entered pursuant to permission; Newland went to the front room where he talked to Tony Lira and obtained her general consent to search the apartment; Lacey walked through the front room into a hallway and looked into several of the rooms; in the southwest bedroom he observed a green attache case on the shelf. He put the case on the bed, intending to open it, but discovered that it was locked; he notified Newland, who was the senior officer in charge of the search, and immediately left the dwelling to see the defendant, thinking that he might have a key; Lacey met Agent Sherwood and his prisoner outside of the apartment; the agents took Murillo into the bedroom where the case was resting on the bed; without permission, Newland reached into the defendant's pocket and removed his keyring on which there was a key which fitted the case; he opened the attache case in the presence of the defendant and found the narcotic; the defendant did not authorize the removal of the key from his pocket, or its use, or give consent to the search; there was no warrant allowing a search of the house, or any of its contends.

During the trip to Mexico, Tony Lira had kept some of her toilet articles in the case. But she had removed all of her personal property earlier on the day of defendant's arrest before the officers arrived. Unknown to the officers, the defendant had given Tony Lira a key to the attache case on the day in question, but she did not tell the officers that she had a key, and it was never used.

Summarizing, the evidence shows that the defendant had been living for approximately a month in the apartment of Tony Lira. During the Mexican visit, he carried along an attache case in which the woman had placed various toilet articles of her own. Presumably in Mexico the defendant added to the contents of the attache case a contraceptive containing a large quantity of heroin, and other personal property of his own. Upon their return to Fresno on the day of his arrest, the woman removed all of her personal property from the case. Before he left the apartment, Murillo let her have a case key, which she possessed during all of her subsequent talks with the police, but which she never mentioned to any member of the enforcement squad. Murillo was arrested in the street some hundreds of yards from the dwelling, which he had been sharing as a guest with Tony Lira; when the enforcement agents entered her home, the Lira woman gave them general permission to search the apartment and she also later mentioned the fact that the forbidden drug was in a little bag in the next room. The trial judge was of the opinion that Tony Lira thus gave her consent to a search of the locked attache case, and that she had the right to do so, saying:

'I have come to the conclusion, Mr. Murillo, that in your case the search that was made was made with the consent of the lady who was in charge of the premises and who had actual authority to permit a search of the very case that contained the narcotic substance; that this consent and this authority is indicated primarily by her testimony that you and she shared this case on a trip just a short time before this search was made and that on the very day that the search was made you had given her the key to the locked case, indicating...