People v. Nailor

• Decision Date: 28 February 1966
• Docket Number: Cr. 10351
• Citation: 240 Cal.App.2d 489,49 Cal.Rptr. 616
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Jackson NAILOR, Defendant and Appellant.

Page 616

49 Cal.Rptr. 616

240 Cal.App.2d 489

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Jackson NAILOR, Defendant and Appellant.

Cr. 10351.

District Court of Appeal, Second District, Division 3, California.

Feb. 28, 1966.

Rehearing Denied March 15, 1966.

Hearing Denied April 27, 1966.

Melvin Lebe, Los Angeles, under appointment by the District Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Elizabeth Miller, and Alan R. Wolen, Deputies Atty. Gen., for respondent.

KAUS, Justice.

Defendant was convicted on one count of possession of heroin (Health & Saf.Code, § 11500) and appeals.

People's Case.

On July 5, 1962 Officer Nelson of the Los Angeles Police Department was on a narcotics investigation with his partner, Sergeant Cooper. He was wearing plain clothes. For undisclosed reasons he had entered the El Rey Hotel at 511 East Sixth Street and was walking along the second floor corridor when he saw defendant coming toward him. Defendant was ten to twelve feet away from him and Nelson noticed a small white object in his right hand. At that moment it was hard to tell what the object was, but 'having seen this type of object before' he 'assumed' it was a 'bindle.' Defendant then switched the object from his right hand to his left hand and at that moment Nelson 'came to the conclusion' that it was a 'bindle.' During his six years on the force he had worked on the narcotics detail from time to time and had made arrests. He knew that heroin was frequently packaged in small bindles. He then stopped the defendant, saying 'just a minute.' With his left hand defendant made a motion toward his mouth. Nelson grabbed the hand and pulled it down, at which time a bindle dropped to the floor. He picked it up, examined it, noticed that it contained a small amount of white powder and placed the defendant under arrest.

It was stipulated that the bindle contained two grains of powder and that it contained heroin. There is nothing in the record to indicate the purity of the powder.

A conversation between defendant and Nelson ensued at the hotel. Defendant said that he had been in town about three weeks from Denver, that he had 'used' a few times since coming to Los Angeles and that the officers found the 'stuff' on the floor and not on him. He said that if he were permitted back out on the street he would be able to tell the officers where they could find a lot more stuff. On cross-examination the officer said that he made up his mind to stop defendant when he first saw the object in his hand.

Defendant's Case.

Defendant testified that when he walked down the hallway he was only carrying a key in his hand. His first notice that the officers were taking an interest in him was the statement by one to the other: 'Don't let him put his hand to his mouth.' His hand was then grabbed. One of the officers identified himself as such and demanded that he open his hands. All they found was the key. His room was then searched and nothing found.

A conversation ensued between defendant and the officers, in which he admitted a narcotics conviction in St. Louis in 1953. The officer then made overtures to him to become an informer. Defendant refused, because he did not know anyone in Los Angeles who was 'fooling around' with drugs. Later at the police station he was shown the bindle and denied having seen it before or knowing its contents.

On cross-examination defendant said that he did not, at any time, see one of the officers pick up the bindle from the floor of the hallway and he also denied having accused the officer of having found it on the floor. He admitted that he 'most certainly' had seen heroin before, but never packaged in a bindle, only in capsules. He denied having offered to become an informer.

Defendant, who is most ably represented by appointed counsel on this appeal, raises numerous points which will be discussed in the order presented. Admission of Incriminating Statements.

Unquestionably the admission of defendant's statements to the effect that he had used heroin since arriving in Los Angeles and that he would be able to put the finger on peddlers, if released, violated the rule of People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. The People concede this. It is also true that the statements were not a confession. They were incriminating only in that they were additional evidence of defendant's knowledge of the narcotic nature of the powder in the bindle. Since they were not a confession, our inquiry is whether they were prejudicial. (People v. Hillery, 62 Cal.2d 692, 712-713, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.

The result of the trial hinges entirely on the credibility of Officer Nelson as opposed to that of defendant. If the testimony concerning defendant's statements had been supplied by someone other than Officer Nelson, they would strongly corroborate his version of the incidents in the hallway and tend to be prejudicial. However, since the evidence concerning the statements came from Nelson's lips and was denied by defendant in all damaging particulars, we do not see the prejudice. If the court believed Nelson, defendant was guilty beyond a reasonable doubt with or without the statements. If the court believed defendant he was not guilty.

True, had the statements not been admitted, defendant would not have been impelled to deny them and could not have been cross-examined on his denial; however there was nothing either in his direct or cross-examination which damaged his case. The value of the different versions of the statement for impeachment purposes also depended entirely on Nelson's credibility.

While defendant's statements somewhat strengthen the prosecution's case on defendant's knowledge of the narcotic nature of the powder, they were not the only evidence on that element of the offense. His conduct in shifting the powder from one hand to the other and his apparent attempt to swallow it, were sufficient by themselves to support the implied finding. (People v. Solis, 193 Cal.App.2d 68, 77, 13 Cal.Rptr. 813, fn. 4.) It is inconceivable that once the trial court believed Officer Nelson's version of the events in the hallway, defendant would have been acquitted for a lack of evidence of knowledge of the narcotic character of the substance.

Propriety of Arrest.

There is no question that if Officer Nelson acted on a mere hunch, however correct it proved to be, when he grabbed defendant's arm thereby releasing the bindle, its seizure was unjustified. (People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 96, 41 Cal.Rptr. 290, 396 P.2d 706.) While this is certainly a borderline case, we cannot say that having in mind the experience of Officer Nelson, the appearance of the bindle and defendant's switching it from one hand to the other, the officer was not entitled to attempt to detain him for questioning. (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658.) When Nelson's suspicions were apparently confirmed by Nailor's attempt to secrete the bindle in his mouth he was entitled to effect the arrest and prevent the destruction of the evidence by grabbing his arm.

Defendant's cases are clearly distinguishable. In People v. Brown, 45 Cal.2d 640, 290 P.2d 528, the People did not even argue that before the officers grabbed the defendant's right wrist they had any reason whatever to suspect her of a crime. Indeed the only justification for the search that was put forward was its success. In Hood v. Superior Court, 220 Cal.App.2d 242, 33 Cal.Rptr. 782, the People chose not to rely on the information they received from the confidential informant. With that element eliminated from probable cause, all that was left was a defendant who left his home in the company of another, who drove away in the other's automobile and who looked back once. The car was immediately stopped by the pursuing officers and defendant reached with his right hand toward his left shirt pocket. Nothing was seen in his hand. The search of the defendant, his companion and of the car turned up nothing. The officers then, without a warrant and over the violent protest of defendant searched his residence and found some narcotics therein. It seems clear to us that the only search involved in Hood is the one at the residence which was clearly invalid for lack of a warrant. (People v. Cruz, 61 Cal.2d 861, 865, 40 Cal.Rptr. 841, 395 P.2d 889.) Moreover the conduct of Hood and his companion fell far short of that of Nailor.

People v. Garrett, 237 Cal.App.2d 701 ^*, 47 Cal.Rptr. 194 is similar to Hood except that in Garrett the search on the street turned up a balloon. Again, disregarding confidential information, the officers without any cause whatever stopped defendant on the street and one of them identified himself as a police officer. Defendant started to run and made a motion toward his mouth. He was caught, a scuffle ensued and he dropped the balloon. Other narcotics...