People v. Reeves

• Decision Date: 22 April 1964
• Docket Number: Cr. 7661
• Citation: 61 Cal.2d 268,391 P.2d 393,38 Cal.Rptr. 1
• Court: California Supreme Court
• Parties: , 391 P.2d 393 The PEOPLE, Plaintiff and Respondent, v. Donald Winston REEVES et al., Defendants and Appellants.

Page 1

38 Cal.Rptr. 1

61 Cal.2d 268, 391 P.2d 393

The PEOPLE, Plaintiff and Respondent, v. Donald Winston REEVES et al., Defendants and Appellants.

Cr. 7661.

Supreme Court of California, In Bank.

April 22, 1964.

Rehearing Denied May 20, 1964.

William J. Gintjee, San Francisco, under appointment by the Supreme Court, for defendants and appellants.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., John F. Kraetzer, Edward P. O'Brien and Keith E. Pugh, Jr., Deputy Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

Defendants appeal from judgments, based on jury verdicts, finding them guilty of possession of marijuana in violation of section 11530 of the Health and Safety Code. The sole question presented is whether the arresting officers had reasonable and probable cause to enter Reeves' hotel room, and there search that room, and arrest Reeves and also Tuttle, the other occupant of that room. We have concluded that they did not have such reasonable and probable cause, and consequently the search and arrests were illegal.

The facts stated most favorably to respondent are: On the morning of September 13, 1961, Officer Martin, an experienced inspector attached to the narcotic detail of the San Francisco Police Department, received a telephone call from an anonymous female informer. She told the officer that two 'narcotic losers' by the names of Donald Reeves, staying at the King George Hotel, and Ken McDonald, who operated an automobile agency on Van Ness Avenue, were in possession of marijuana. The phrase 'narcotic losers' was understood by Martin to mean that the persons named had been convicted of a narcotic offense. Martin had never heard the voice before, and the caller did not identify herself.

Prior to the telephone call, Inspector Martin knew Reeves. He had talked with Reeves as the result of a prior narcotic investigation that had not resulted in criminal charges being filed against Reeves. During the course of that conversation, he also discovered that Reeves, several years before, had been convicted of a narcotic offense in Texas. He also learned, in that conversation, that Reeves had been employed locally by a railroad company and had a claim pending against that railroad for a claimed injury. Inspector Martin, until he received the telephone call, knew nothing about Ken McDonald. Immediately after the call, however, he caused the records to be searched, and discovered that a Ken McDonald was listed as having an earlier conviction in the federal court for a narcotic violation. He also discovered that a Ken McDonald operated an automobile agency on Van Ness Avenue in San Francisco.

Armed with this information, Inspector Martin, together with Inspectors Fogarty and Lawler, proceeded to the automobile agency, where he interviewed McDonald. Martin testified that during that interview 'a marijuana cigarette was found' on the person of McDonald. The circumstances under which that cigarette was 'found' are of considerable importance, but unfortunately are only partially disclosed in the evidence. Admittedly McDonald was arrested, but he was never prosecuted for the possession of the cigarette. When queried about why McDonald was not prosecuted, Martin replied, 'There was a search and seizure problem.' When Martin was asked later in the proceeding if he had illegally searched McDonald, an objection was sustained on the ground that the question called for the opinion and conclusion of the witness on a matter of law. Later, when one of the defense counsel asserted that the officer had admitted that the search of McDonald was illegal, the prosecutor replied 'there is nothing in the record to show whether the search of McDonald was either legal or illegal.' Although thus challenged, the prosecution made no attempt to show that that search was legal.

After the police had placed McDonald under arrest, he was asked where he had secured the marijuana cigarette they had just 'found' in his possession. He replied that the evening before he had secured three marijuana cigarettes from Donald Reeves at the King George Hotel. McDonald also admitted to the officers that he had had a prior narcotic conviction in the federal court.

Then, without attempting to secure arrest or search warrants, the three officers proceeded to the King George Hotel. There they learned from the manager that Reeves was registered, had been assigned room 302, and was presently in his room. Officer Martin, then having his previous talk with Reeves in mind about the railroad claim, asked the manager to telephone Reeves, and to tell him falsely that there was a registered letter from the railroad company at the desk, and that he should come down and get it. The manager made the call at the officer's request, and Reeves answered that as soon as he got dressed he would come down and get the letter.

The three officers proceeded to room 302 where one placed himself on one side of the door, another on the other side, and Martin stood directly in front of it. When Reeves opened the door, Martin testified that because he was a few inches taller than Reeves he could see into the room over Reeves' head or shoulders. He stated that he observed a small bedside table, about 11 feet from him, that was illuminated with a table light. He said that he saw two packages of cigarette papers and what appeared to him to be a partially consumed marijuana cigarette, called by the witness a 'roach,' on the table. He admitted that the cigarette papers were not distinctive, rolling their own cigarettes, but stated rolloing their own cigarettes, but stated that they were also of a type sometimes used to rool marijuana cigarettes. Martin testified that, when he saw the 'roach,' he and the other officers entered the room without the permission of Reeves, and that he walked over to the bediside table and saw that the small cigarette butt looked like the remains of a marijuana cigarette. He thereupon arrested Reeves, and ordered him to sit in a chair near the bed. He then asked Reeves if there was any more marijuana in the room, and Reeves pointed to a desk drawer. Martin opened that drawer and discovered several more 'roaches,' some bulk marijuana in a brown sack, and some fine marijuana in a folded cardboard. The other two inspectors searched other places in the room. Inspector Fogarty, in a closet, discovered a bag containing what appeared to be more bulk marijuana. Reeves admitted ownership of all the marijuana in the room.

When the officers entered the room they observed that a person, later identified as Tuttle, was apparently asleep in the bed. Tuttle was awakened by Inspector Lawler, and attired only in his underwear, sat on the edge of the bed. His shirt and slacks were folded on the back of the nearby chair in which Reeves was sitting. Martin testified that he asked Tuttle if these clothes were his, and upon being told that they were, started to hand them to Tuttle. As he did so he saw a brown paper bag similar to the one discovered in the desk drawer, fall out of the pocket of Tuttle's slacks. He opened the bag and observed what appeared to be marijuana. He asked Tuttle if the bag belonged to him, and getting no response, arrested him. At the trial Tuttle testified that the bag and its contents were not his, and that he knew nothing about them. Both he and Reeves testified that the bag had not come out of Tuttle's pocket, and Reeves testified that Martin simply picked it up from the floor near the chair. There was expert evidence that the 'roaches' were in fact marijuana, and that the material in the bags and containers was, in fact, marijuana.

Reeves and Tuttle both testified that they were acquaintances, that in the early morning hours of September 13, 1961, Tuttle was drunk, and that Reeves met him after 2 a. m. in a restaurant. Reeves testified that Tuttle did not know where he had parked his automobile, that he brought Tuttle to his hotel room so he could sleep off his drunken condition, and that he undressed him and put him to bed. Both Tuttle and Reeves testified that this was the first time Tuttle had ever been to the room of Reeves.

At the trial defendants objected in proper form to the introduction of the marijuana into evidence on the ground that it had been secured by an unlawful search and seizure and that the arrests were illegal. The objections were overruled.

Inasmuch as the search and seizure and arrests were accomplished without search or arrest warrants the question is whether the officers had reasonable and probable cause to enter the room. The prosecution theory was that the officers had such reasonable and probable cause because Martin saw what appeared to be a marijuana 'roach' when the door was opened. The theory of the defense was that nothing seen when the door was opened could constitute reasonable and probable cause, because the door was opened as a result of the ruse and subterfuge employed by the police, it being contended that evidence so obtained is illegally secured. The trial court, in passing on the lawfulness of the search and arrest, considered only that point. After expressing serious doubts on the question, the trial court ruled that the evidence secured as a result of the false message and ruse of the police had not been illegally secured.

This ruling was clearly erroneous. Unless the officers had reasonable cause to enter Reeves' room before the door was opened they cannot lawfully rely on any information secured by inducing the opening of that door by ruse or subterfuge. It is well settled by both federal and state decisions that 'an entry obtained by trickery, stealth or subterfuge renders a search and seizure invalid' (People v. Roberts, 47 Cal.2d 374, 378, 303 P.2d 721, 723; to the same effect see People v. Albert, 182 Cal.App.2d 729, 737, 6 Cal.Rptr. 473; Gouled v. United States, 255 U.S. 298, 305, 41 S.Ct. 261, 65 L.Ed. 647; Fraternal Order of Eagles, No. 778 v. United States, 3 Cir., 57...