People v. Sotelo

• Decision Date: 09 June 1971
• Docket Number: Cr. 19006
• Citation: 18 Cal.App.3d 9,95 Cal.Rptr. 486
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Esther SOTELO and Vito Raymond Sotelo, Defendants and Appellants.

Page 486

95 Cal.Rptr. 486

18 Cal.App.3d 9

The PEOPLE of the State of California, Plaintiff and Respondent, v. Esther SOTELO and Vito Raymond Sotelo, Defendants and Appellants.

Cr. 19006.

Court of Appeal, Second District, Division 1, California.

June 9, 1971.

Byron & Warner and Harvey E. Byron, Los Angeles, for defendants and appellants.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

LILLIE, Associate Justice.

In the same information but in separate counts defendants were charged with possession of heroin for sale (§ 11500.5, Health & Saf.Code); there was a preliminary hearing for each defendant. Motions to suppress the evidence pursuant to section 1538.5, Penal Code, were denied. Thereafter the cases were consolidated, each defendant submitting the cause on the two transcripts of the testimony taken at the preliminary hearings. Each defendant was found guilty as charged, and appeals from the judgment.

On April 4, 1969, Officer Garrahan received information from a confidential informant that Vito and Esther Sotelo were selling heroin from certain described premises, that if he were to go there he would see numerous people coming in and going from the house, that people often fixed heroin in the garage area and that Vito drove a 1962 Ford, purle over grey, and recently was arrested for burglary in Downey; the informant also gave him defendants' drove a 1962 Ford, purple over grey, and conversation he drove to the address and checked out the residence; he saw a 1962 Ford, purple over grey, parked alongside the garage at the rear of the premises, found the telephone to be registered there to Vito and the utilities to Esther, and checked with Downey police who gave him a photograph of Vito and told him Vito had been arrested for burglary.

Around 11:30 a.m. Officer Garrahan staked out the premises and during one and a half hours he saw numerous persons go in and out of the residence, and on at least two occasions an exchange of some kind between them and Vito, after which he saw Vito go back in the house, stay a short period of time and return to those persons who then left. He left to get more equipment and personnel but the last time he saw Vito was as he was leaving the location. An hour later, around 2 p.m. the officers returned to the premises and Officer Foresta was placed in a point of vantage; about 3:30 p.m. he reported by radio to Officer Garrahan that a male Negro, later identified as Curtis Bell, had entered the residence, stayed 5 or 15 minutes and left and was walking south on Willowbrook. Officer Garrahan approached Bell and identified himself; a conversation ensued whereupon he noted hypodermic needle marks over the veins of both arms, his voice was slow and slurred, his eyes were pinpointed and one of the puncture marks on his arms was leaking a clear fluid; he formed the opinion that Bell was under the influence of heroin, and arrested him. He then notified the other officers and they met at the premises; as he proceeded from the rear he saw in the area between the house and the garages numerous balloon fragments, many of which were knotted at the end in the manner in which heroin is commonly packaged.

Officer Garrahan and another officer walked to the front door and knocked; the inner door was open but the screen door was closed and locked. Esther came to the door; he identified himself as a police officer, displayed his badge and 'told her (he) would like to talk to her.' Esther unlatched the screen door and asked them to come in. Officer Garrahan had about a minute's conversation with Esther, then placed her under arrest for possession of narcotics; at this time she was the only adult present on the premises. After the arrest Officer Foresta was then admitted by another officer and they commenced a search of the premises; Esther asked Officer Garrahan if he had a search warrant and he replied he did not. The search revealed contraband in a bedroom closet--on the floor of the closet was a paper bag containing three balloons of heroin and a clear plastic bag of heroin; in the pocket of a man's suit were nine balloons containing 55.1 grams of heroin; in a coat pocket of another (man's) suit were 36 balloons containing 22.6 grams of heroin. The bedroom closet contained half male and half female clothing. It was stipulated that if Officer Foresta were called he would testify that in his opinion the narcotics found in the closet were possessed for sale.

At the hearing on the two motions to suppress, Esther testified that two officers knocked on her front door and after identifying himself one of them said, 'I want to talk to you and I want to search your house'; she asked whether he had a search warrant and he said no; this conversation took place through the front screen door, then officers broke in through the kitchen door and knocked her down, she was arrested and the premises were searched.

On rebuttal Officer Foresta testified that a police officer let him in through the back door; Officer White testified to the same effect as Officer Garrahan; and it was stipulated that Officer Johnson's testimony would be that he was staked out in an alley behind the house and saw Tovar Camarillo, whom he had known to be an associate of Vito, leave the house; he saw some persons waving their arms in the direction of Camarillo and Camarillo run northbound into a parking lot; he followed in a police vehicle and saw Camarillo jump over a fence several blocks from the house; he ultimately effected Camarillo's arrest.

Appellants' first contention is that Officer Garrahan did not have reasonable cause to arrest Esther thus the subsequent search was illegal. The search was clearly incident to Esther's arrest, hence was 'not unreasonable' within the meaning of the Fourth Amendment if the arrest was lawful. ¹ (People v. Lara, 67 Cal.2d 365, 373, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Webb, 66 Cal.2d 107, 111--112, 56 Cal.Rptr. 902, 424 P.2d 342.) The arrest was lawful if it was predicated on reasonable cause to believe Esther had committed a felony. (§ 836, subd. 3, Pen.Code.) "Reasonable cause' has been defined as 'that state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.' (People v. Terry, 2 Cal.3d 362, 393, 85 Cal.Rptr. 409, 466 P.2d 961; People v. Ross, 67 Cal.2d 64, 69, 60 Cal.Rptr. 254, 429 P.2d 606.)' (People v. Fein, Cal., 94 Cal.Rptr. 607, 610, 484 P.2d 583, 586.) The question of probable cause to justify an arrest without a warrant must be tested by the facts and circumstances which the record shows were known to the officers at the time they were required to act. (People v. Terry, 2 Cal.3d 362, 393, 85 Cal.Rptr. 409, 466 P.2d 961; People v. Ross, 67 Cal.2d 64, 69--70, 60 Cal.Rptr. 254, 429 P.2d 606; People v. Talley, 65 Cal.2d 830, 835, 56 Cal.Rptr. 492, 423 P.2d 564.) After a full hearing on the issue the trial court found the officer had probable cause, and there is sufficient evidence to support its determination. (People v. Lara, 67 Cal.2d 365, 374, 62 Cal.Rptr. 586, 432 P.2d 202.)

Earlier on the day of the arrest a confidential but untested informant gave certain information to Officer Garrahan which justified further investigation, but standing alone was not sufficient to constitute reasonable cause for an arrest or search. (Mann v. Superior Court, 3 Cal.3d 1, 6--7, 88 Cal.Rptr. 380, 472 P.2d 468; People v. Lara, 67 Cal.2d 365, 374--375, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Talley, 65 Cal.2d 830, 835--836, 56 Cal.Rptr. 492, 423 P.2d 564.) However, such information may be sufficient if it is 'corroborated, in essential respects, by other facts, sources or circumstances' as would justify the conclusion that reliance on the information was reasonable. (People v. Reeves, 61 Cal.2d 268, 274, 38 Cal.Rptr. 1, 391 P.2d 393; People v. Lara, 67 Cal.2d 365, 374--375, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Talley, 65 Cal.2d 830, 836--837, 56 Cal.Rptr. 492, 423 P.2d 564; People v. Gallegos, 62 Cal.2d 176, 179, 41 Cal.Rptr. 590, 397 P.2d 174; People v. Davis, 2 Cal.App.3d 230, 235, 82 Cal.Rptr. 561.) 'Such corroboration need not itself amount to reasonable cause to arrest; its only purpose is to provide the element of 'reliability' missing when the police have had no prior experience with the informant. Accordingly, it is enough if it gives the officers reasonable grounds to believe the informant is telling the truth, for in this type of case the issue is 'not whether the information obtained by the officers emanated from a reliable source, but whether the officers could reasonably rely upon that information under the circumstances.' (People v. Sandoval (1966) 65 Cal.2d 303, 308--309, 54 Cal.Rptr. 123, 126, 419 P.2d 187, 190, citing Willson v. Superior Court (1956) 46 Cal.2d 291, 294--295, 294 P.2d 36.)' (People v. Lara, 67 Cal.2d 365, 374--375, 62 Cal.Rptr. 586, 593, 432 P.2d 202, 209.) 'However, in order for corroboration to be adequate, it must pertain to defendant's alleged Criminal activity; accuracy of information regarding the suspect generally is insufficient. (People v. Gallegos, 62 Cal.2d 176, 179, 41 Cal.Rptr. 590, 397 P.2d 174; People v. Reeves, 61 Cal.2d 268, 274, 38 Cal.Rptr. 1, 391 P.2d 393; People v. Abbott, 3 Cal.App.3d 966, 971, 84 Cal.Rptr. 40; People v. West, 3 Cal.App.3d 253, 256, 83 Cal.Rptr. 223.)' (People v. Fein, Cal., 94 Cal.Rptr. 607, 611, 484 P.2d 583, 587.)

Here the corroboration consisted of the facts and circumstances of defendant's conduct in the possession and sale of heroin on the premises obtained by the officers through independent police investigation and personal observations immediately following Officer Garrahan's conversation with the information. In this connection appellants advance a factual argument urging that certain of the...