People v. Smith

• Citation: 333 P.2d 208,166 Cal.App.2d 302
• Decision Date: 17 December 1958
• Docket Number: Cr. 6313
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene SMITH, Defendant and Appellant.

Page 208

333 P.2d 208

166 Cal.App.2d 302

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

Cr. 6313.

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

Dec. 17, 1958.

Elinor Chandler Katz, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., for respondent.

HERNDON, Justice.

After conviction of possession of marijuana (Health and Safety Code, § 11500) defendant appeals from the judgment and sentence contending: (1) that the evidence upon which conviction was based was illegally obtained and improperly admitted over objection, and (2) that the lower court erred in admitting the arresting officer's testimony as to statements made to him by an unidentified informant.

On November 20, 1957, an unidentified informant gave Pasadena police officer Peter Ellena, Jr., a physical description and name which corresponded to that of appellant, and the officer was told that 'The subject has a quantity of marijuana secreted in his house.' That evening at about 6 p.m Sergeant Hamilton and officers Cockell and Ellena proceeded to appellant's residence, described as a 'two-story multiple dwelling,' in which the appellant was a tenant. The two officers seated themselves in an automobile in the back yard of the building, and at about 6:10 p.m. they observed the appellant and another man come into the back yard. Officer Ellena testified that he overheard the other man say to appellant 'Where is the pot?' (a slang term for marijuana) to which the appellant responded, 'I have it--don't worry--it's not rolled up, but I have plenty of paper.' The defendant then went into the house with the other man and came out in about ten minutes carrying something in his hand. The officers stepped from the car and placed the appellant under arrest. Finding no narcotics in appellant's hand, they requested that he take them to his room. Appellant complied and a search of the room was commenced. One of the officers asked appellant if he owned an automobile, to which appellant answered in the affirmative, describing the vehicle. Sergeant Hamilton then left the room and returned with two women and a man who had been waiting for appellant in the car. In the search of appellant's room, the officers discovered two brown cigarette papers, some seeds and certain debris which, according to the testimony of officer Ellena, the defendant later said 'could have been marijuana.' Then officers Ellena and Cockell went into the back yard and searched the garage where they discovered two bags containing about five ounces of marijuana. The officers testified that there was no car parked in the garage; that they had no conversation and made no investigation as to who used the garage, and that the garage was 'cluttered' with furniture and storage.

Appellant denied possession of the marijuana when confronted with it in his room, but at the police station he admitted that he had purchased the contraband and taken it to his home a week previously. At the trial he testified that these self-incriminating statements to the officers were made so that the woman arrested with him would be released and on the officer's assurance that he would benefit from the admissions. The officers denied so inducing the confession. Appellant was convicted, and probation was denied.

In this proceeding appellant concedes that his arrest was legal and that the search of his person and his living quarters was a search reasonably incident to that arrest. However, he contends that the search of the garage, which uncovered the contraband on which his conviction is based, was not reasonably incident to the arrest, and that the evidence obtained thereby was therefore inadmissible. Stated simply, appellant's theory is that the search of the garage on the premises in which appellant, an owner of an automobile, was a tenant, was unreasonable, because there was nothing reasonably to suggest to the officers that the marijuana which was the object of their search, might be there secreted.

Appellant's position is untenable. As recently stated in People v. Winston, 46 Cal.2d 151, 162, 293 P.2d 40, 46; 'While the Cahan case [People v. Cahan, 44 Cal.2d 434, 282 P.2d 905] held that evidence obtained by police officers in violation of federal and state constitutional prohibitions 'against unreasonable search and seizure is inadmissible,' it did 'not purport to inhibit the right of law enforcement officers to conduct a reasonable search and seizure incident to a valid arrest.' [Citations.] * * * 'It is well settled that a search without a warrant is valid where it is incident to a lawful arrest, if it is reasonable and made in good faith; and that a seizure, during such a search, of evidence related to the crime is permissible. [Citations.] * * * 'The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime * * * is not to be doubted.''' See also, People v. Coleman, 134 Cal.App.2d 594, 599, 286 P.2d 582.

In People v. Dixon, 46 Cal.2d 456, 458-459, 296 P.2d 557, 559, police officers entered defendant's apartment and arrested her. During the search of the apartment, the officers discovered and forcibly took from her person the key to the garage which she rented on the premises. In the garage, the officers discovered a quantity of heroin. In reversing the judgment of conviction for the failure to introduce evidence to justify the officers' entry into the apartment, the Supreme Court said: '* * * if on a new trial reasonable cause is shown for the...