People v. Shelton

• Citation: 60 Cal.2d 740,388 P.2d 665,36 Cal.Rptr. 433
• Decision Date: 30 January 1964
• Docket Number: Cr. 7587
• Court: United States State Supreme Court (California)
• Parties: , 388 P.2d 665 The PEOPLE, Plaintiff and Respondent, v. Joseph Barry SHELTON et al., Defendants and Appellants.

Page 433

36 Cal.Rptr. 433

60 Cal.2d 740, 388 P.2d 665

The PEOPLE, Plaintiff and Respondent, v. Joseph Barry SHELTON et al., Defendants and Appellants.

Cr. 7587.

Supreme Court of California, In Bank.

Jan. 30, 1964.

Boags & Worrell and C. V. Worrell, Los Angeles, for defendants and appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Lawrence R. Tapper, Deputy Atty. Gen., for plaintiff and respondent.

TRAYNOR, Justice.

Defendant Joseph Shelton and Margie Victorian appeal from judgments of conviction of possessing heroin in violation of Health and Safety Code, section 11500, and from the order denying their motion for new trial. The appeal from the order denying a new trial is dismissed. (Pen.Code, § 1237.)

Officer Hanks of the Narcotics Division of the Los Angeles Police Department testified that he had investigated defendant Shelton for several years and had received many reports from informants that Shelton was a dealer in heroin. He knew that Shelton had been convicted once of a narcotic charge and had been arrested twice on narcotic charges that did not result in convictions. He had often seen Shelton in 'high frequency narcotics areas,' and in February 1962 he saw him talking to a known heroin dealer. Officer Hanks talked several times with Eunice Baul, a narcotics user, who told him that Shelton was a dealer in heroin and kept her supplied with it. Officer Grennan, another narcotics officer, had also talked with Baul and had used her information to obtain convictions of narcotic offenders. Officer Hanks always found Baul's information consistent with other information he had.

On March 22, 1962 Officers Hanks and Grennan and two other officers went to an apartment house and showed the manager a picture of Shelton and described Baul. The manager told the officers that Shelton and Baul were occupying apartment No. 1 and that her husband had seen Shelton hide what he believed to be narcotics in the hallway. She gave the officers two hypodermic needles in a plastic case that she said she found in the hallway over the doorway to apartment No. 1. The officers waited outside the door of the apartment until Baul opened it to leave and then entered the apartment and arrested Shelton and Baul. The officers searched the apartment but found no narcotics or other contraband. They searched Shelton and found a key and a rent receipt for an apartment No. 212. Shelton denied knowledge of the receipt and said that Baul gave it to him. She said that she found it in Shelton's car and told the officers "I know he isn't going to take me there. That's where he's got Margie." The officers asked her if Shelton had any 'junk' there, and she replied, "He very well could. He could be using that as a stash pot for some junk."

Having ascertained that apartment No. 212 was on West 87th Street, the officers told Shelton they were going to take him there to have the manager identify him. Shelton then admitted that he had rented the apartment the preceding night. Officer Hanks asked Shelton, "* * * who is in (apartment No. 212) now, Joe? ' He says, 'There is no one.' I said, 'Do you have any junk in there?' He says, 'No.' I said, 'How about if we go down and take a look?' He says, 'All right, go ahead." The officers took Shelton to apartment No. 212 on West 87th Street and knocked on the door. After some delay defendant Victorian asked who was there. The officers asked Shelton to say it was he, but he refused to do so. Officer Hanks then said, "All right, police officer. Open the door right now." Victorian opened the door, and Officer Hanks testified that she had a hypodermic needle attached to an eye dropper in her left hand. Both defendants testified that when she opened the door Victorian had no clothing on and had nothing in her hand. The officers arrested Victorian and searched the apartment. They found two balloons containing heroin in a shoe box. The manager testified that the box was not in the apartment when he rented it to defendants the preceding evening. Victorian told the officers that Shelton brought her the two balloons, but she refused to repeat the statement in front of Shelton and later denied that she had made it.

Defendants contend that the trial court erred in overruling their objection to the introduction of the hypodermic needle and heroin into evidence on the ground that they were obtained in the course of an unlawful search of their apartment. Since the search was made without a warrant, the burden was on the prosecution to show proper justification. (People v. King, 60 A.C. 259, 262, 32 Cal.Rptr. 825, 384 P.2d 153; People v. Haven, 59 Cal.2d 713, 717, 31 Cal.Rptr. 47, 381 P.2d 927; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.) The prosecution not only failed to sustain that burden, but established by the testimony of the arresting officers themselves that there was no justification. The evidence was therefore illegally obtained and should have been excluded.

The search cannot be justified as incident to the arrest of defendant Shelton, for he was arrested at the apartment he occupied with Baul approximately two miles away. (People v. King, 60 A.C. 259, 262, 32 Cal.Rptr. 825, 384 P.2d 153; People v. Haven, 59 Cal.2d 713, 719, 31 Cal.Rptr. 47, 381 P.2d 927; Castaneda v. Superior Court, 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 380 P.2d 641; Tompkins v. Superior Court, 59 Cal.2d 65, 67, 27 Cal.Rptr. 889, 378 P.2d 113; People v. Gorg, 45 Cal.2d 776, 781, 291 P.2d 469.)

The search cannot be justified on the ground that the officers had reasonable cause to believe that Shelton was in possession of narcotics at the West 87th Street apartment. Even if it is assumed that the officers' knowledge of Shelton's narcotics activities, his initial denial of any connection with the apartment, and Baul's statement that "He could be using * * * (the apartment) as a stash pot for some junk" constituted reasonable cause to believe that there were narcotics in the apartment, a search without a warrant could be justified only as incident to a lawful arrest therein or pursuant to a valid consent. As the United States Supreme Court stated in Chapman v. United States, 365 U.S. 610, 613, 81 S.Ct. 776, 778, 5 L.Ed.2d 828, 'Until Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, this Court had never directly decided, but had always assumed, 'that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein' (id., 269 U.S. at page 32, 46 S.Ct. at page 6, (70 L.Ed. 145)), but that case explicitly decided that 'Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are * * * unlawful notwithstanding facts unquestionably showing probable cause.' Id., 269 U.S. at page 33, 46 S.Ct. at page 6 (70 L.Ed. 145).' (See also, People v. Haven, 59 Cal.2d 713, 720, 31 Cal.Rptr. 47, 381 P.2d 927; Castaneda v. Superior Court, 59 Cal.2d 439, 443, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Edgar, 60 A.C. 117, 121, 32 Cal.Rptr. 41, 383 P.2d 449.)

The search cannot be justified on the ground that the officers had reasonable cause to arrest Victorian before they demanded that she open the door. Although the informer Baul apparently knew that Victorian was at the apartment, she did not tell the officers that Victorian was also a user or was involved with Shelton in the narcotics traffic. Thus, even if the officers had reasonable cause to believe that Shelton had narcotics at the apartment, they had no reasonable cause to believe that his possession, if any, was shared with Victorian. Before they demanded that the door be opened, they knew only that a woman was in an apartment where Shelton may have stored narcotics. Such association between a suspect and even a known criminal by itself is not reasonable cause for an arrest and search. (United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 92 L.Ed. 210; Johnson v. United States, 333 U.S. 10, 16, 68 S.Ct. 367, 92 L.Ed. 436; Tompkins v. Superior Court, 59 Cal.2d 65, 67-68, 27 Cal.Rptr. 889, 378 P.2d 113; People v. Kitchens, 46 Cal.2d 260, 263, 294 P.2d 17; People v. Sanders, 46 Cal.2d 247, 251, 294 P.2d 10, and cases cited; People v. Boyd, 173 Cal.App.2d 537, 539, 343 P.2d 283; People v. Green, 152 Cal.App.2d 886, 889, 313 P.2d 955; People v. Yet Ning Yee, 145 Cal.App.2d 513, 517, 302 P.2d 616.)

The search cannot be justified on the ground that Shelton consented to it. It is true that one of the officers testified that Shelton responded, 'All right, go ahead,' when the officer suggested they go to the apartment and take a look. The fact that Shelton was under arrest at the time, however, and his subsequent refusal to assist the officers in gaining access to the apartment establish that his apparent consent was not voluntarily given. (Castaneda v. Superior Court, 59 Cal.2d 439, 442-443, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Haven, 59 Cal.2d 713, 720, 31 Cal.Rptr. 47, 381 P.2d 927; see also People v. Gorg, 45 Cal.2d 776, 782, fn. 2, 291 P.2d 469.) Moreover, even if Shelton had voluntarily consented to the search, his consent could not justify the invasion of his joint occupant's privacy that occurred when the officer demanded that the door be opened. (Tompkins v. Superior Court, 59 Cal.2d 65, 69, 27 Cal.Rptr. 889, 378 P.2d 113.)

The search cannot be justified on the ground that Victorian voluntarily opened the door and thereby exposed evidence sufficient to justify her arrest and a search incident thereto. 'To protect his right to object to an unreasonable search or seizure a defendant need not forcibly resist an officer's assertion of authority to enter his home or search it or his person (citations), but if he freely consents to an entry or search, or voluntarily produces evidence against himself, his constitutional rights are not violated and any search or taking of...