People v. Rightnour, Cr. 230

• Decision Date: 26 July 1966
• Docket Number: Cr. 230
• Citation: 52 Cal.Rptr. 654,243 Cal.App.2d 663
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sidney RIGHTNOUR, Defendant and Appellant.

Page 654

52 Cal.Rptr. 654

243 Cal.App.2d 663

The PEOPLE, Plaintiff and Respondent, v. Sidney RIGHTNOUR, Defendant and Appellant.

Cr. 230.

District Court of Appeal, Fifth District California.

July 26, 1966.

Rehearing Denied Aug. 23, 1966.

Hearing Denied Sept. 28, 1966.

[243 Cal.App.2d 664] James A. Gardner, under appointment by the District Court of Appeal, Fresno, for appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse, and Theodore, T. N. Slocum, Deputy Attys. Gen., Sacramento, for respondent.

OPINION

McMURRAY, Justice Pro Tem. ^*

Defendant appeals from a judgment sentencing him to state prison after he was found guilty by a jury of violation of Health and Safety Code section 11500, possession of narcotics.

On May 16, 1965, a pharmacy in Madera was burglarized and certain narcotics were taken therefrom. The appellant was in the area at that time. His conviction was based on the knowing possession of these narcotics which were subsequently found in a Los Banos hotel room which appellant was occupying as a guest of one Raithel.

Raithel had occupied Room 25 at the Los Banos hotel for approximately two years. He worked as a card dealer for a local club. Appellant, a friend of Raithel's, visited him on Friday, May 28, 1965, to discuss the possibility of opening up a card room. When appellant arrived he brought none of his clothing or other possessions but did stay overnight. Raithel did not expect appellant to remain in the room thereafter, but testified it was perfectly all right if appellant did so. When Raithel left for work Saturday afternoon, he parted company with appellant, and upon returning from work at about 1 a.m. on Sunday, May 30th, he found a note from appellant stating he had gone to either Sacramento or Stockton. Later that day Raithel left his room for a trip to Madera and did not return until Thursday, June 3d. When Raithel left, there were no narcotics in his room. On at least two days during Raithel's absence appellant used his hotel room, apparently gaining access by a key which he had. He was seen by the maid in the hallway outside the room both on Tuesday, June 1st, and Wednesday, June 2d. On the 1st, the maid saw appellant going up and down the stairs all day. Whenever she attempted to enter the room to clean it appellant would come back upstairs. He appeared to be drunk and incoherent, but did not smell of alcohol. On Wednesday, June 2d, the maid again saw appellant in the hotel hallway. His speech was somewhat clearer and he told the maid he was 'trying to clean the room up.' At about 1 o'clock on that date appellant left the hotel and did not return. The room was locked when appellant left and was not opened until 4 o'clock that afternoon when the maid entered to clean it. No one else entered the room between appellant's departure and the time the maid entered.

Before the maid entered the room appellant was arrested in Los Banos by Officer Brownell on a traffic warrant issued from Madera County. Although the arresting officer did not possess the warrant, he had the number of the warrant at that time. This arrest took place at approximately 3:50 p.m. on June 2d. The arresting officer learned of the warrant approximately one-half hour before the arrest and during that time he also learned that appellant was in town.

When the maid, performing her regular cleaning duties, entered the room at 4 p.m. she opened the door and saw burnt bedding, window blinds torn down, a bed lamp knocked over, and a great many papers and cigarettes strewn on the floor. The bedspread was burned, the blankets had holes in them and the sheets and mattress pad were burned through to the mattress. The holes apparently were from cigarette burns. Lying on top of an open suitcase on the floor was a letter addressed to appellant. In plain sight on a table were a syringe, a needle, some white powder and a spoon. There were some paper bags visible through an open closet door which the maid did not examine. There was also some clothing which had not been there before the maid's four-day absence from the hotel from May 28th through May 31st. The maid knew Raithel's clothing and recognized that some of the clothing did not being to him.

Upon discovering the burnt bedding the maid immediately reported it to the owneroperator of the hotel. About a week before this incident, the owner had discovered papers burning against a wall of his hotel which had the appearance of an intentionally set fire and he had warned his hotel staff to make constant checks in the area every half hour and to be alert to any recurrences. He therefore went immediately to the room with the maid and saw the extremely disordered condition of the room. The burnt bedspread and sheets disturbed him most. He called the police because, as he testified, he was concerned about the safety of his tenants and his building because of the 'fire problem' and the possibility of burglary. He also testified that he did not notice or pay any attention to any needles, syringe or other paraphernalia in the room. The owner knew Raithel was away and called the police regarding the incident in the room. This call was relayed to the Los Banos police chief in his radio car. The chief knew that appellant had been arrested on the traffic warrant and that he had been residing in the hotel. The officer accompanying the chief knew the appellant was in custody but did not know his address. This officer had received prior notice from the Madera police that the appellant was wanted for burglary but had not caused appellant's arrest. He connected appellant's name with that given by the Madera police, but did not form any connection between appellant and the incident at the hotel in regard to the burnt bedding and torn up room. The officer's purpose in going to the hotel was only in response to the owner's call regarding the condition of the room.

When the officers arrived at the hotel the owner asked them to accompany him to the room and observe its condition and see what could be done about it. The officers did not ask to be admitted to the room, but the owner took them there and showed them the burned spots on the bed and the condition of the room. Upon entering the room the officers had no idea that it would contain any narcotics or narcotics paraphernalia, but upon entering the room they saw in plain view a needle, syringe and other items. Upon leaving they took with them a spoon, two hypodermic needles, an eyedropper and some white powder, all of which were in plain sight. They did not, however, at that time conduct any further search. The next day the police communicated with a Madera police officer, stating that they would secure a search warrant for the room in order to look for further narcotics or narcotics paraphernalia. On June 3d Raithel returned to his room and was advised by the owner of the hotel that there had been an incident which had occurred in his room and that he was not to remove or disturb anything located there. Raithel had never given permission to the earlier search of the room. When he entered his room he found narcotics and appellant's clothing.

On Friday, June 4th, at about 1 p.m., two police officers talked with Raithel in the lobby of the hotel. One officer told Raithel he was going to get a search warrant for the room and Raithel replied that he could search the room at any time he wanted. The evidence is somewhat conflicting but both officers testified that one of them went upstairs with Raithel, who showed the officer a bottle containing a pink liquid, later identified as a narcotic. The officers, however, did not remove the articles nor did they conduct any further search.

Subsequently a search warrant was issued for the room and at 4 p.m. on June 4th the chief of police, the hotel owner and some other officers entered the room and conducted a search pursuant to the warrant. At that time Raithel had told the officers, 'You don't need a search warrant.' In the closet of the room where appellant's clothes were hung, the officers found a paper bag filled with various narcotics. In the bag among the bottles of narcotics was a letter addressed to appellant. Also found were a bottle and two bent spoons bearing traces of codeine. Some of these articles were later identified as having been taken from the drugstore in Madera.

Appellant contends that the search was the fruit of an illegal arrest. This contention falls in that it assumes the arrest was illegal. Such is not the case. An arrest is legal even though the officer does not have the warrant in his possession at the time of his arrest. (Pen.Code, § 842; People v. Kraps, 238 A.C.A. 791, 795, 48 Cal.Rptr. 89; People v. Stewart, 189 Cal.App.2d 176, 179, 10 Cal.Rptr. 879.)

Penal Code section 842 provides that an officer may effect a lawful arrest without the warrant in his possession as long as it is shown to the arrested person if he requests it. There is no evidence that appellant was denied access to the warrant when such request was made. Even if the arrest were illegal, the record is devoid of any evidence which connects the search of the hotel room with the traffic warrant arrest. Neither at the trial nor on appeal has respondent sought to justify the entry as incident to the arrest. The arrest was completely separate from the incident giving rise to the search.

Appellant also urges that the entry by the maid and the subsequent entry by the owner of the hotel constituted illegal entry within the meaning of the Fourth Amendment. Even though a nonpaying guest, he has the right to challenge this...