People v. Regalado

• Decision Date: 11 February 1964
• Docket Number: Cr. 7517
• Citation: 36 Cal.Rptr. 795,224 Cal.App.2d 586
• Parties: The PEOPLE, Plaintiff and Respondent, v. Adolfo Guzman REGALADO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 795

36 Cal.Rptr. 795

224 Cal.App.2d 586

The PEOPLE, Plaintiff and Respondent, v. Adolfo Guzman REGALADO, Defendant and Appellant.

Cr. 7517.

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

Feb. 11, 1964.

David Daar, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

July 19, 1960, Adolfo Guzman Regalado was arrested for the possession of heroin, was convicted of the offense, he appealed from the judgment, the conviction was affirmed by this court (193 Cal.App.2d 437, 14 Cal.Rptr. 217) and a hearing was denied by the Supreme Court. In June 1963, the United States Supreme Court granted certiorari and remanded the case 'for further consideration in light of Ker v. California [ante] 374 U.S. 23, 83 S.Ct. 1623 and McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153.' (374 U.S. 497, 83 S.Ct. 1875, 10 L.Ed.2d 1044.)

At the time of defendant's arrest he spat out a cellophane bindle and had another bindle on a table beside him, both of which contained heroin. At his trial defendant admitted having had possession of the narcotic. The only question in the case has been whether the methods used by the officers in the apprehension and arrest of defendant and seizing the contraband were in violation of defendant's rights under the Fourth Amendment and Article 1, Section 19, California Constitution. No warrant of arrest or search warrant had been issued.

Two officers, observing defendant and three others enter a hotel, followed them in, ascertained from the manager the location of the room to which they went, took positions outside in the hallway, and one of the officers, in trying to look through the keyhole, saw a small round hole of the diameter of the lead in a lead pencil in the door panel about three feet from the floor. Peeking through the hole, Officer Walsh saw defendant with an eye dropper and a needle in his hands and upon a table beside him an open bindle which was found to contain heroin. Believing defendant was about to give himself an injection of narcotics the officers forced open the door, arrested defendant and seized the paraphernalia and narcotic. Upon the trial, when the narcotic, the needle and the eye dropper were offered in evidence, they were received over defendant's objection that they had been seized unlawfully.

In People v. Ruiz, 146 Cal.App.2d 630, 304 P.2d 175, we affirmed a conviction of possession of narcotics where the evidence of the offense was obtained in essentially the same manner as in the present case. In Ruiz, the officers looked through a small hole in the door of an apartment, saw what appeared to be a transaction in narcotics, forced open the door and made an arrest. We stated that the action of the officer in looking through the hole would have been a clear violation of defendant's constitutional right if it had been shown that the officers had drilled the hole, but since they denied they had drilled it they were within the law in making use of the hole to spy upon the defendant. Our opinion in 193 Cal.App.2d 437, 14 Cal.Rptr. 217, followed our conclusions in Ruiz.

We do not find anything in the opinions of the United States Supreme Court in Ker or McDonald which touches the problem in the present case. In Ker, the principal question was whether the arrest was illegal because of the failure of the officers to identify themselves and demand admittance before making an entry. In McDonald, the holding was that after the officers in looking through a transom observed illegal activities they should have obtained a search warrant before forcing an entry into the room.

When our opinion in Ruiz and our former opinion in the present case were written, it had not been decided by the Supreme Court or any District Court of Appeal that spying through holes bored, or other openings made for that purpose, into private places is illegal and that evidence obtained in this manner may not be used to prove the commission of unlawful acts. Since that time the illegality of obtaining information in this...