People v. Smith

• Citation: 296 P.2d 913,141 Cal.App.2d 399
• Decision Date: 10 May 1956
• Docket Number: Cr. 5579
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank SMITH, Defendant and Appellant.

Page 913

296 P.2d 913

141 Cal.App.2d 399

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank SMITH, Defendant and Appellant.

Cr. 5579.

District Court of Appeal, Second District, Division 2, California.

May 10, 1956.

Hearing Denied June 6, 1956.

Cary G. Branch, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., James L. Mamakos, Dep. Atty. Gen., for respondent.

ASHBURN, Justice.

Convicted of possession of heroin in violation of § 11500 Health & Safety Code, defendant appeals from the judgment and an order denying motion for new trial. It was charged and proved that he had been convicted previously of violating the same code section and he was sentenced to State prison for the term prescribed by law. Health & Safety Code, § 11712.

In support of the appeal counsel for appellant urges but one point, unlawful search and seizure.

On the morning of April 15, 1955, defendant was riding with one Earnest Derry who was driving his own automobile. At the intersection of Naomi and Adams Streets, in Los Angeles, the driver violated the vehicle code by failing to yield the right of way to another car; this was witnessed by police officers Hanks and DiSalvo; they followed the Derry car until it stopped in front of defendant's home near Washington and Naomi Streets. Officer Hanks testified that he did not know either of the men in the car before that morning. When the Derry car stopped, officer Hanks went to the driver's side of the car to talk with him about the traffic violation. DiSalvo went to defendant, asked his name and where he lived. Receiving this information he wrote it on a card. So far there was no violation of any right of defendant. Interviewing a prospective witness was a normal procedure for the officer. See People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852. When Hanks started to talk to Derry he noticed some old hypodermic marks on his arms, 'old needle punctures.' He identified them as such on the basis of long experience and was told by Derry that 'he was a user, but was not using at the present time;' the officer believed this. Reasoning that 'if we had one person who was a user, I wanted to find out whether Mr. Smith was or was not a user,' he approached defendant, who was on the sidewalk, and asked him if he was using narcotics. Defendant said that he was. Hanks asked him to roll up his sleeve and show his marks; this he did voluntarily, thereby revealing about eight fresh needle marks. The officer decided that defendant was using narcotics and placed him under arrest, searched him and found in the watch pocket of his trousers a paper containing heroin. The officer had no warrant of any kind and the heroin thus found is the crux of this appeal.

There is but one point of serious conflict in the evidence. Hanks said that defendant voluntarily rolled up his sleeve and exposed the fresh needle marks. Defendant testified that he did not do so; that he had on a long sleeved shirt and Hanks rolled up the sleeve without his permission and searched him without his consent. The officer's previous testimony, given at the preliminary hearing, contained passages calculated to impeach his trial testimony in this respect, but the trial judge chose to believe that defendant voluntarily rolled up his sleeve for the officer. Thereby he merely resolved a concer. in the evidence. It was his function to assay the testimony, accept the true and reject the false. The question of whether a defendant has consented to a search is one of fact to be answered by the trial judge. People v. Gorg, 45 Cal.2d 776, 782-783, 291 P.2d 469. His finding, when supported by substantial evidence, as here, is binding on the appellate court.

So far as concerns the search of defendant's person, as distinguished from rolling his sleeve up, there was sufficient ground for such action in this instance regardless of any consent of defendant. It is true that, when acting without a warrant, 'the search of defendant's person may be justified only if he was committing or attempting to commit an offense in the officer's presence, Penal Code, § 836, subd. 1, or the officer had reasonable cause to believe he had committed a felony. Penal lieve he had committed a felony. Penal Code, § 836, subd. 5.' People v. Simon, 45 Cal.2d 645, 648, 290 P.2d 531, 533. 'Section 836, subd. 3, provides that an officer may make an arrest without a warrant 'When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.' Defendant...