People v. La Peluso
| Decision Date | 28 January 1966 |
| Docket Number | Cr. 5006 |
| Citation | 239 Cal.App.2d 715,49 Cal.Rptr. 85 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Natolio A. LA PELUSO, Defendant and Appellant. |
Benjamin M. Davis, Paul Briefer, San Francisco, for appellant.
Thomas C. Lynch, Atty. Gen., Robert R. Granucci, John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.
Defendant appeals from a judgment sentencing him to state prison following his conviction by verdict of a jury of the offense of unlawful transportation of narcotics in violation of section 11501 of the Health and Safety Code. Defendant and another were originally jointly charged by indictment with (1) conspiracy to violate section 11501 of the Health and Safety Code in violation of section 182 of the Penal Code, (2) violation of section 11501 as noted above, (3) possession of heroin in violation of section 11500, and (4) possession of marijuana in violation of section 11530 of the same code. Defendant was separately tried and the jury found him guilty of the first three charges and acquitted him of the fourth. The trial court granted the defendant's motion for a new trial as to counts one and three, denied the motion as to count two, and denied defendant probation and sentenced him to prison on that charge. This appeal ensued.
The questions involved are as follows: (1) Were tape recordings of telephone conversations erroneously admitted in evidence in violation of defendant's constitutional rights, or state or federal law? (2) Did the trial court commit prejudicial error by admitting in evidence statements made by defendant's codefendant to the police after his arrest? (3) Was the search of the hotel room occupied by defendant illegal, and if so, were the items found therein improperly admitted in evidence? (4) Was defendant's arrest illegal, and if so, were the items found at the time and place thereof improperly admitted in evidence? (5) Is the evidence insufficient to support the conviction of the charge of transportation for which defendant was sentenced? It is herein concluded that an analysis of the record and the law applicable thereto exacts a negative response to each question and prescribes an affirmance of the judgment.
An inspector of the San Francisco Police Department attached to the narcotic detail testified that during the period from January to March 1964, arrangements were made to have a special employee make monitored and recorded telephone calls from the headquarters of the narcotic detail in the Hall of Justice to a number listed for the Atherton Hotel and the extension for room 710 at those premises. A transitorized device was attached adjacent to the telephone used by the special employee, and transmitted the conversation by induction to a tape recorder. Four officers generally were present and the calls were monitored by use of extension telephones. The special employee was aware that the conversations were being recorded and monitored and gave his consent. No advice was given to the parties on the other end of the line that the conversations were being monitored or recorded.
The special employee was addicted to narcotics and was under arrest. He was furnished money by the authorities and charges against him were later dismissed. He had been used as an informer by the authorities since 1960 and had been instrumental in furnishing information on which at least three prior convictions of violations of the narcotic laws had been secured.
The inspector did not know of his own knowledge who occupied the room in question at the time of the telephone conversations, but he recognized the defendant's voice from former acquaintance with him, and found that the codefendant was the person who appeared in response to and in accordance with the arrangements made in the last telephone conversation held. On voir dire examination, out of the presence of the jury, defendant admitted that the room was registered to him and that he had lived there during the period in question. In the same proceedings his codefendant testified he was also registered at the hotel, although under an assumed name, and that he was living with defendant.
The recordings were admitted into evidence, and are before this court as transcribed in the typewritten record. The first call was made January 31, 1964. Four calls were uncompleted. Apparently six calls, the last of which was before February 16, 1964 were completed to defendant, and four calls were completed to his codefendant, culminating in that of March 3, 1964 which led to the latter's arrest. These conversations, despite guarded language, indicate that the defendant was familiar with his codefendant's activities; that he communicated the requests of the special employee to his codefendant; that the codefendant was attempting to secure what the special employee desired; and that in one conversation between February 6th and 16th, the defendant himself offered to get something for his caller if the codefendant was unsuccessful.
The inspector amplified the partially inaudible record of the last conversation which reflected that defendant's roommate would meet the special employee and furnish him five 'spoons' of heroin for $60 a spoon.
The officers went to the vicinity of the hotel. The informer gave them a description of the codefendant and identified the car he used. The suspect came out of the hotel, entered the described vehicle, drove off and was intercepted by the officers approximately a block away. The inspector saw the driver move across to the passenger's side of the car and put his right hand in his coat pocket. The officer then opened the car door, restrained the codefendant, removed his hand from his coat pocket, and extracted what proved to be heroin wrapped in contraceptives and tissue.
Over defendant's objection the inspector was permitted to testify to a conversation with the codefendant at the scene of his apprehension. Admittedly he was not advised of his right to remain silent, or his right to counsel, or of the fact that anything he said might be used against him or anyone else. According to the inspector, the codefendant was told he was under arrest, and in response to the inspector's questions indicated that he had no more contraband secreted on his body, but did have more contraband in his room in a night stand between two beds. The inspector related that he started to break down and was crying; that he had no objection to going back and stated he wanted to get the matter cleaned up; that he gave another inspector the key to his room, but said that he did not think the door was locked; and that he told the officers that defendant was in the room, unarmed, and watching television.
It was ascertained that the car driven by the codefendant was registered to defendant. The officers proceeded to room 710 with the codefendant who, according to the inspector, gave them the key and consented to the entry of the room. Two officers went in the unlocked door without using the key, and left the codefendant in the hall with a third officer.
On voir dire, out of the presence of the jury, it was developed that the officers had no warrant or search warrant; that the codefendant was handcuffed upon his apprehension and when he allegedly gave them the key; that he was left about 30 feet down the hall when entry was effected; and that the officers did not knock before entering the room. The codefendant, who had already plead guilty to transportation of heroin, confirmed that he had the conversation with the informer and started out in defendant's car to deliver the contraband; that he was apprehended, handcuffed and taken back to the seventh floor of the hotel by the officers; that he stood down the hall with one officer, while the others pushed the door open without knocking and that he was not taken into the room until three or five minutes later after the officers had commenced searching. He denied that he owned or possessed a key to the room, or that he gave a key to one of the officers; and stated that the officers requested, without success, a key from the night clerk at the reception desk. He admitted he was upset, but denied he was crying, and testified that the officers never advised him of any legal rights, and did not request his permission, but told him to go back to the hotel and to his room. He admitted that he told the officers there was more contraband in the night stand in his room, and recited that he told them that defendant was there asleep, not that he was watching television as reported by the inspector.
The defendant also testified, out of the presence of the jury, on the issue of the propriety of the entry into room 710. He stated that he was alone in the room asleep with the door closed when he was awakened by a loud bang on the door and three officers jumped in on him; that the inspector, whom he knew, confronted him with a pistol and grabbed and handcuffed him; that he never heard anybody ask for, nor did he give anyone permission to enter the room; and that no one asked him for permission to search the room. He asked 'What's going on?' upon awakening and finding the officers in the room but made no other objection to the entry because he had no choice; and made no objection to the officers' search of the room because he had no choice after looking at the inspector's pistol and being handcuffed.
The court overruled defendant's motion to suppress all evidence which was the product of the entry and search of the room. The inspecton testified that he found contraband, which proved to be heroin, in the drawer of the night stand; that in the same drawer were prescription vials and papers, which indicated on their face that they belonged to defendant, and a shoe shine kit; that defendant admitted that everything...
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People v. Johnson, Cr. 12804
...between the illegal arrest and the statement has become sufficiently 'attenuated as to dissipate the taint.''5 People v. La Peluso, 239 Cal.App.2d 715, 726, 49 Cal.Rptr. 85, 92, cert. denied, 385 U.S. 829, 87 S.Ct. 64, 17 L.Ed.2d 65, which purports to rely on Nardone, in fact reverses the l......
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People v. Linke
...254 A.C.A. 60, 64, 61 Cal.Rptr. 695; People v. Jolke, supra, 242 Cal.App.2d at pp. 148--149, 51 Cal.Rptr. 171; People v. La Peluso (1966) 239 Cal.App.2d 715, 728, 49 Cal.Rptr. 85; People v. Banks (1965) 238 Cal.App.2d 43, 45, 47 Cal.Rptr. 499; People v. Contreras, supra, 211 Cal.App.2d at p......
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People v. Linke
...254 A.C.A. 60, 64, 61 Cal.Rptr. 695; People v. Jolke, supra, 242 Cal.App.2d at pp. 148-149, 51 Cal.Rptr. 171; People v. La Peluso (1966) 239 Cal.App.2d 715, 728, 49 Cal.Rptr. 85; People v. Banks (1965) 238 Cal.App.2d 43, 45, 47 Cal.Rptr. 499; People v. Contreras, supra, 211 Cal.App.2d at p.......
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