People v. Rogers

• Citation: 24 Cal.Rptr. 341,207 Cal.App.2d 261
• Decision Date: 29 August 1962
• Docket Number: Cr. 7600
• Parties: The PEOPLE, Plaintiff and Respondent, v. William Victor ROGERS, Defendant and Appellant.
• Court: California Court of Appeals

Page 341

24 Cal.Rptr. 341

207 Cal.App.2d 261

The PEOPLE, Plaintiff and Respondent, v. William Victor ROGERS, Defendant and Appellant.

Cr. 7600.

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

Aug. 29, 1962.

Virgil V. Becker, Wilmington, under appointment by the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for respondent.

FORD, Justice.

Charles B. Byrd and the appellant Rogers were accused by information of possession of heroin in violation of section 11500 of the Health and Safety Code and, in a second count, of possession of marijuana in violation of section 11530 of that code. In a trial by jury, in which both defendants were represented by the public defender, the appellant and his codefendant were found to be guilty as charged. The present appeal is from the judgment.

A summary of the evidence will be given. William H. Kaskey, a police officer of the city of Los Angeles assigned to the narcotics division, testified that on September 20, 1960, at aproximately one o'clock in the morning, he participated in the arrest of the appellant Rogers and his codefendant Byrd in a residence located at 1332 East 142nd Street in the county of Los Angeles. Officer Northrup was with him. The witness knocked on the door and it opened. He saw Byrd inside the house. The officer exhibited his badge to Byrd and stated, 'We are police officers.' Byrd said that he lived there. The officer then asked if they might enter and Byrd replied, 'Yes, it's all right with me; come on in.' The officers entered. Rogers was sitting in a chair in the living room. Rogers wore no shirt except an undershirt. The witness, who had been engaged in narcotic law enforcement work since 1947, saw on both of Rogers' arms numerous marks of the kind that are caused by the injection of a hypodermic needle. Some marks appeared to be of recent origin and one appeared to have been made 'probably within an hour or two hours' of the time of the officer's examination. The pupils of Rogers' eyes were pin-pointed, a condition which characteristically follows the use of an opiate. The officer told Rogers that it appeared to him that Rogers was using quite a bit of heroin. Rogers replied, 'No, I'm not using very much; I just use occasionally. I am really not using a lot of stuff.' The witness informed Rogers that he was under arrest for violation of the narcotics laws. Part of the officer's testimony was as follows: 'Q. After placing the defendant Rogers under arrest, what did you next do? A. I next asked the defendant Rogers where he lived. 'Where is your room? Where do not stay, here? How long have you stayed here?' He said, 'Well, I have been living here about four months, and I live in that bedroom, indicating a bedroom situated off the living-room, and adjacent to the bath.' The officer and Rogers went into the bedroom and the officer found ten brown-paper wrapped cigarettes in a sack which was in a closet. On the floor behind a dresser were found three eye-droppers, a syringe and a hypodermic needle. As to the cigarettes, Rogers said, 'Well, you found them in my room, so I guess they're mine.' But he denied that he knew anything about the other articles.

When the officer and Rogers reentered the living room, the officer found five more brown wrapped cigarettes on the floor at a point about ten feet in distance from the bedroom door. The officer then went alone to the garage; later another officer joined him. In the garage was found a container in which was a 'brownish' powder. A similar powder was in a jar. In a bag was a green, leafy substance. The articles were found under some old clothing. Near these articles was currency contained in a brown paper sack, which money, the officer believed, was in the amount of $185.

Officer Northrup also testified. After Rogers was placed under arrest, the officers asked Rogers if they could look around the bedroom occupied by him and Rogers said that they could. He and Sergeant Kaskey took Rogers into the bedroom. Rogers said that the clothing in the closet was his. He said that the cigarettes found in the living room did not belong to him. About the time the articles were found in the garage, Rogers said, 'I knew you were going to find the heroin out in the garage because that is where Charlie Byrd keeps it stashed, out in the garage.' When shown the items which were found there, Rogers said that they were not his. At the police station $337 was removed from Rogers' pocket. When asked where he got the money, Rogers did not answer.

It was stipulated that it would be deemed that a forensic chemist had been called and had testified that he had examined the cigarettes and the sack containing green, leafy material and that, in his opinion, the articles contained marijuana, and that he had further testified that he had examined the powder in the jar and in the other container and that, in his opinion, it was heroin and that it was 17.2 grams in amount. The articles were received in evidence without any objection being made by the public defender on behalf of either defendant.

The defendant Byrd testified in his own behalf. He said that on the date of his arrest his place of residence was on 49th Street. He went to the premises on 142nd Street about 6:30 or 7:00 o'clock in the evening. The tenants of the house were Mr. and Mrs. Burnett who had been there about three or four months. Byrd had previously lived there but moved away around July of 1960. Later in the evening Rogers was in the house. When the officers arrived, Byrd was not 'quite drunk,' but had been drinking 'pretty heavy.' He did not tell the officers he lived there. He had not been in the garage for about a year and had stored nothing there. He kept his boat in the driveway on the 142nd Street premises, where it was on the night of his arrest.

The defendant Rogers testified in his own behalf. He had known Byrd for eight or nine years. On the date of his arrest Rogers was living on 46th Street. Since about April, on a number of occasions he had 'spent a night or two' in the house where he was arrested. During September he spent about three nights there. On September 19, he came to the house in the hour before midnight. He had some clothes there which he used when he went fishing; they were in a closet in the bedroom. When the officers arrived he was in the back bedroom. Officer Northrup told him to come into the living room and he did. Rogers wore no shirt. Officer Northrup examined his arms with the aid of a flashlight. He was arrested. Officer Northrup asked him if he would give him permission to search the house. He told the officer he would not because he did not live there and did not own the house. Officers Northrup and Kaskey then went into the bedroom and returned with some articles. It was not his bedroom. He told the officers the cigarettes were not his. He had never seen the cigarettes before. Aside from fishing tackle, Rogers kept nothing in the garage. He did not see what the officers said they had found in the garage until the preliminary hearing. He did not know what was in the containers. He had neither marijuana nor heroin in his possession on September 19 or September 20. The money in his pocket came from his savings and gambling.

In the consideration of the appellant's contentions, this court cannot reweigh the evidence but must view it in the light most favorable to the respondent. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.)

The officers had no search warrant and no warrant for the arrest of Byrd or Rogers. However, if someone with apparent authority consents to an entry into a residence, and the entry is made in good faith, it is not unlawful. (People v. Howard, 166 Cal.App.2d 638, 651, 334 P.2d 105.) In the present case Officer Kaskey testified that Byrd said that he lived in the house and that the officers could come in. That evidence was sufficient to support a determination that the officers' presence in the front room of the house was lawful.

In view of the appellant Rogers' statement as to his use of heroin, the fresh needle marks on his person, and the appearance of his eyes, there was a valid ground for his immediate arrest. (People v. Rios, 46 Cal.2d 297, 298-299, 294 P.2d 39; People v. Smith, 141 Cal.App.2d 399, 403, 296 P.2d 913.) The appellant made no objection in the trial court to the introduction in evidence of the articles found on the premises. (See People v. Richardson, 51 Cal.2d 445, 447, 334 P.2d 573.) But, in any event, his contention that the officers engaged in an unlawful search and seizure cannot be sustained. The search of the bedroom which Rogers said he occupied was proper since it was incident to a lawful arrest. (People v. Elliott, 186 Cal.App.2d 178, 183, 8 Cal.Rptr. 795.) No consent to the search of the garage was given by anyone. The question presented is whether it was warranted on the ground that it was incident to a lawful arrest. Guidance in the resolution of that question is found in People v. Smith, 166 Cal.App.2d 302, 333 P.2d 208. In that case the defendant conceded that his arrest was legal and that the search of his person and his living quarters was a search reasonably incident to his arrest. However, he contended that the search of a garage, wherein marijuana was found, was not reasonably incident to the arrest. In rejecting that contention the court said (166 Cal.App.2d, at pages 305-306, 333 P.2d at page 210): 'It should be emphasized that the sole question here presented is whether it was reasonable for the officers to search the garage after the search of the appellant's person and living quarters had failed to uncover the narcotics for which they were searching. In the appellant's room the officers had found cigarette papers, debris, and seeds which naturally would have tended to confirm the suspicions raised by the conversation they had...