People v. Newell

• Decision Date: 08 May 1969
• Docket Number: Cr. 13416
• Citation: 77 Cal.Rptr. 771,272 Cal.App.2d 638
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Robert NEWELL, Defendant and Appellant.

Page 771

77 Cal.Rptr. 771

272 Cal.App.2d 638

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Robert NEWELL, Defendant and Appellant.

Cr. 13416.

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

May 8, 1969.

Edward I. Gritz, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and David Gould, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Associate Justice.

Defendant appeals from the judgment entered following a nonjury trial that resulted in his conviction of the crimes of possessing heroin (Health & Saf. Code, § 11500), and possessing heroin for purposes of sale (Health & Saf. Code, § 11500.5). The trial court recognized that since only one act of possession was involved, the violation of section 11500 constituted a lesser offense necessarily included within the more serious offense proscribed by section 11500.5. Therefore, the court properly refrained from imposing any sentence on account of the lesser included offense. (Cf. People v. Miranda, 254 Cal.App.2d 517, 523, 62 Cal.Rptr. 339 et seq. and cases cited therein.)

The sufficiency of the evidence bearing upon appellant's guilt is not challenged. By way of assignment of error appellant contends only that 'the admission of evidence seized from a warrantless search not incident to a lawful arrest was error and will not support the judgment of conviction.' We have concluded that the trial court's determination on this issue is supported by the record herein.

'Reasonable or probable cause for an arrest has been the subject of much judicial scrutiny and decision. There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances (citations)--and on the total atmosphere of the case. (Citations.) Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. (Citations.)' (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 800.)

Los Angeles County Deputy Sheriff Eldon Burkett of the Headquarters Detective Bureau, Narcotics Detail, testified that on May 12, 1966, he was advised by Mrs. Nancy Upshaw, the non-resident manager of an apartment building, that on the previous day she had gone to the apartment leased by appellant's codefendants Neal and Byerley to order them to move. When one of the tenants had opened the door she had 'smelled a strong odor of marijuana from within.' She was familiar with the characteristics of this substance and 'she had no doubt that what she smelled was marijuana.'

Although Mrs. Upshaw was a citizen complaining of criminal activities occurring in her presence, as distinguished from the usual police informant (cf. People v. Lewis, 240 Cal.App.2d 546, 549, 550, 49 Cal.Rptr. 579), Officer Burkett quite reasonably determined to seek further information concerning the subject matter of her complaint before acting thereon. He first spoke with Mrs. Koble, the resident manager of the building, who described to him the large amount of foot traffic she had observed entering the apartment in question, remaining only a few minutes and then leaving. This traffic occurred both day and night and on several occasions she had observed people so deeply 'under the influence of something' that they literally had to be carried from the location by their companions.

Still proceeding cautiously, the apartment was placed under surveillance that afternoon and evening by officers from the sheriff's department. They observed several people entering the apartment and recognized at least one of them as a person known to them as a narcotic violator. They ran record checks on two of the vehicles used by other parties not known to them personally and learned that they were registered to persons with records of narcotic violations.

Officer Burkett discussed the matter with his fellow officers and learned that one of them had seen Neal in court that very day and he had appeared to be under the influence of some drug, possibly a barbiturate. Officer Burkett also was informed by another officer that the other tenant, Byerley, was being sought by him in connection with an earlier report that he was engaged in the illegal use and sale of marijuana in the Bellflower area but that he had not been able to locate him up to that time. No objection was made to this latter item of information nor did the defense seek to determine the factual basis or source of this previous charge against Byerley. Of course, as appellant accurately observes, this undeveloped report standing Alone would not supply a sufficient basis for entering the apartment to arrest its occupants (People v. Pease, 242 Cal.App.2d 442, 448, 51 Cal.Rptr. 448 et seq.), but such fact does not render it wholly lacking in evidentiary significance.

The surveillance of the apartment in question was resumed the following day with additional officers so posted that they could follow and observe the actions of persons leaving the premises. When one of the cotenants, Byerley, was seen to leave in a vehicle with another person, his operation thereof was so erratic and dangerous that the officers following him properly ordered him to stop. When he did so and the officers approached his car on foot, they observed him endeavoring to swallow a number of handrolled cigarettes taken from his shirt pocket. He desisted in this effort when ordered so to do and spat out one of the cigarettes. It proved to contain marijuana. He and his companion, one Kolas, were placed under arrest and advised of their constitutional rights in accordance with the then applicable requirements enunciated in People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, but lacking the refinements subsequently developed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.

The trial court excluded testimony concerning any statements made by Byerley who was a codefendant in the instant proceeding but properly allowed receipt of the statements made by Kolas against whom no charges were filed. (Cf. People v. Varnum, 66 Cal.2d 808, 812--813, 59 Cal.Rptr. 108, 427 P.2d 772.) Kolas falsely denied that he and Byerley had come from the apartment building from which the officers had followed them and asserted that they had proceeded from another and entirely different address.

At this point it appears clear that the accumulated evidence was amply sufficient to justify the officers in concluding that both Byerley and his co-tenant Neal were guilty of the crime of possessing proscribed narcotics. In addition, the attempt to mislead them as to the point of departure of Byerley's vehicle strongly indicated that at that moment additional narcotics were still present on the premises and in the illegal possession of Neal. However, even this did not constitute the complete evidence on this issue.

When the officers returned to the apartment building with Byerley and Kolas, they parked their unmarked vehicle and began walking toward the entrance of the building. As they did so they observed another vehicle park near the entrance. Two men alighted and Officer Burkett recognized both of them as persons he had previously arrested for narcotics violations. These men also walked toward the entrance of the building and as they drew closer together one of these men raised his arm in greeting. Then it 'apparently dawned...