People v. Olson

• Citation: 18 Cal.App.3d 592,96 Cal.Rptr. 132
• Decision Date: 06 July 1971
• Docket Number: Cr. 19331
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Dona OLSON, Defendant and Appellant.

Page 132

96 Cal.Rptr. 132

18 Cal.App.3d 592

The PEOPLE of the State of California, Plaintiff and Respondent, v. Dona OLSON, Defendant and Appellant.

Cr. 19331.

Court of Appeal, Second District, Division 1, California.

July 6, 1971.

Hearing Denied Sept. 2, 1971.

Richard S. Buckley, Public Defender, and Loren Mandel, Deputy Public Defender, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Herbert A. Levin, Deputy Atty. Gen., for plaintiff and respondent.

LILLIE, Associate Justice.

Defendant was charged with possession of heroin (§ 11500, Health & Saf.Code). Her motion to suppress evidence pursuant to section 1538.5, Penal Code, was denied. Thereafter she entered a plea of guilty to the charge. Her appeal is from order granting probation after a plea of guilty based upon denial of motion under section 1538.5.

In the evening of June 17, 1970, Mary Voisan went to her door in response to a ring and saw defendant holding a map; defendant asked for a man by name; she told defendant no one by that name lived there. Defendant appeared to be drunk; she swayed and her speech was slurred. Mrs. Voisan had difficulty understanding her. While defendant had no odor of alcohol on her breath, Mrs. Voisan formed the opinion she was unable to care for herself and offered her the use of the telephone to call a friend. Defendant declined then staggered away and barely made it to her car which was parked in front of Mrs. Voisan's house about 30 to 40 feet from the front door. Mrs. Voisan did not think defendant was fit to drive and did not want her to hurt herself or anybody else; she called defendant back and asked her whether she would like to use the phone. Defendant staggered back into the house, dialed the telephone several times but received no answer, sat down at the kitchen table, laid her head on the table and went to sleep. Two minutes later Mrs. Voisan called the police and told them what had happened, she wasn't capable of taking care of her and did not know what to do with defendant. She testified she called police 'because (she) couldn't help the girl. (She) didn't know what to do to help the girl, and (she) felt the girl needed help.' Asked on cross- examination, 'You wanted to see if she could be taken to a hospital or taken home,' she replied, 'Anywhere, yes; but I couldn't help her.' She did not tell police she wanted them to arrest defendant.

The officers arrived 10 or 15 minutes later and Mrs. Voisan repeated to them the foregoing; she said she could not help defendant and that they should take over. Officer Hilton observed defendant seated at the kitchen table; she appeared to be passed out or asleep and did not move; he went over to her to ascertain what was wrong and talked to her for a minute but was unable to get any response, then raised his voice and moved her shoulder; she started to regain consciousness; he asked her to stand and she held on to the table and pushed herself up to an upright position; he asked her to identify herself then to step out of the house with him; she did not identify herself but followed the officers. Outside in front of the residence the officers started to talk to defendant; defendant appeared to be under the influence of something. Officer Hilton tried to ascertain what it was and the extent of her influence. First he thought it was alcohol but after checking her breath found no odor of alcohol; upon examination of the pupils of her eyes he determined they were not dilated to any great extent but were larger than normal; as she left the house she staggered and either he or his partner steadied her for he was afraid she was going to fall. Officer Hilton then determined defendant was unable to care for herself and asked whether she would perform a field sobriety test--on the heel and toe test she took several steps but walked in a normal manner and did not place the heel to the toe of either foot; on the balance test she briefly lifted one foot off the ground and replaced it. On the basis of his observations, her manner of walking and her performance of the balance and coordination test he formed the opinion defendant was intoxicated and unable to care for herself, placed her under arrest for violation of section 647, subdivision (f), Penal Code, and transported her to the station where she was booked. Pursuant to the booking-searching procedure a matron took her purse, dumped out the contents and found two bindles of heroin.

In denying the motion to suppress, the judge, among other comments, said that Mrs. Voisan tried to help defendant but when she passed out on the table the only thing she could do was to call for police help; she had the right to ask the officers to remove defendant from her home when it became obvious she could not help her, and it was the officers' duty to do so; Officer Hilton asked defendant to go outside, not for the purpose of arresting her or to get her in a public place to arrest her under section 647, subdivision (f), but to assist Mrs. Voisan in removing her from the premises; when the officers got defendant outside and observed her appearance and conduct they formed the opinion she was under the influence and had a right to make the arrest. The court found that no arrest was made in the house; that the officers did not decide to arrest her until they observed her outside the premises and gave her tests.

Appellant's contention that she was not 'found' in a public place, thus the arrest was unlawful and the search and seizure unreasonable, is without merit. Penal Code, section 836, subdivision 1, allows a peace officer to make an arrest without a warrant when he has reasonable cause to believe that a public offense has been committed in his presence. (People v. Sandoval, 65 Cal.2d 303, 308, 54 Cal.Rptr. 123, 419 P.2d 187.) If the arrest was lawful the search of defendant's person, clearly incident to the arrest (Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685) and at the time of booking (People v. Wohlleben, 261 Cal.App.2d 461, 462, 67 Cal.Rptr. 826) was not unreasonable.

Section 647, subdivision (f), Penal Code, provides, 'Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor:

'* * * 64

'(f) Who is found in any public place under the influence of intoxicating liquor, or any drug * * * in such a condition that he is unable to exercise care for his own safety or the safety of others. * * *' Appellant argues that she was invited to enter Mrs. Voisan's home, Mrs. Voisan called police to take her to her home or a hospital and when the officers arrived they 'found' her sitting at the kitchen table thus they could not arrest her under Reinert v. Superior Court, 2 Cal.App.3d 36, 82 Cal.Rptr. 263, and People v. DeYoung, 228 Cal.App.2d 331, 39 Cal.Rptr. 487. These cases are inapposite first, because defendant was not arrested inside of Mrs. Voisan's home but by police outside in front of the residence, and the trial judge so found; second, DeYoung did not deal with the legality of an arrest (228 Cal.App.2d 331, 337, 39 Cal.Rptr. 487) and Reinert held there was no reason to arrest defendant because he was manifesting his behavior in a private place (Reinert v. Superior Court, 2 Cal.App.3d 36, 40, 82 Cal.Rptr. 263). However, applying the definition of 'find'--'to come upon by seeking' (Webster's New International Dictionary of the English Language, 2d Ed., 1936)--to section 647, subdivision (f), Penal Code, appellant argues that the officer 'came upon' her 'by seeking' in the kitchen of Mrs. Voisan's home, therefore, she was not 'found' in a public place and the...