People v. Soto

• Decision Date: 04 September 1956
• Docket Number: Cr. 3200
• Citation: 144 Cal.App.2d 294,301 P.2d 45
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Miguel SOTO, Defendant and Respondent.

Page 45

301 P.2d 45

144 Cal.App.2d 294

The PEOPLE of the State of California, Plaintiff and Appellant, v. Miguel SOTO, Defendant and Respondent.

Cr. 3200.

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

Sept. 4, 1956.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., J. F. Coakley, Dist. Atty. of Alameda County, Oakland, for appellant.

George Nye, Public Defender, Enid Weseman, Asst. Public Defender, Oakland, for respondent.

PETERS, Presiding Justice.

Defendant was charged with unlawful possession of heroin, and with a prior conviction of the same offense. After being held to answer, defendant moved, under section 995 of the Penal Code, to dismiss the information. The trial court, on the ground that the sole evidence against defendant had been secured illegally, and was, therefore, inadmissible, dismissed the information. The People appeal.

The first question presented is whether or not the Superior Court properly may pass upon the admissibility of evidence allegedly the product of an unlawful search or seizure in a proceeding under section 995. In a proper case, the Superior Court may do so. The scope of review under that section is to determine whether the magistrate has held the defendant to answer without reasonable or probable cause. When the only evidence produced against the defendant is incompetent and inadmissible, then there exists no reasonable or probable cause to hold him to answer. The competency of the evidence in such a situation is, therefore, reviewable on a motion made under section 995. Rogers v. Superior Court, 46 Cal.2d 3, 291 P.2d 929; Badillo v. Superior Court. 46 Cal.2d 269, 294 P.2d 23. But, on such a motion, the trial court has no power to pass on conflicts in the evidence. As was stated in Badillo v. Superior Court, 46 Cal.2d 272, 294 P.2d 25: 'Accordingly, the information should not be set aside on the ground that essential evidence was illegally obtained if there is any substantial evidence or applicable presumption to support a contrary conclusion [citations], and in such cases the ultimate decision on admissibility can be made at the trial on the basis of all of the evidence bearing on the issue.'

In the instant case, the only evidence before the trial court on the motion under section 995 of the Penal Code was the transcript of the preliminary hearing. At that hearing the only witness called was Officer Hilliard of the Oakland Police Department. It is our duty to ascertain whether his evidence discloses, without conflict, that the arrest and search of defendant were illegal.

Hilliard testified that about 8:30 a.m. on July 22, 1955, he was informed that another officer had received an anonymous telephone call to the effect that a narcotics party was going on in Room 37 of the Baldwin Hotel; that pursuant to that information he and another officer proceeded to the Baldwin Hotel; that the room clerk there informed him that the registered occupant of Room 37 was one Alphonso Garcia, also known as 'Wimpy'; that such a person was known to him as a narcotics user; that he then proceeded to Room 36, which adjoins Room 37, and interviewed the occupant; that this occupant stated that 'for the past two weeks that a steady stream of people going in and out of Room 37 and bothered him, in fact at night had kept him awake most of the night,' and that 'there were peculiar sniffing noises coming from the room and he had heard conversation relating to narcotics and stuff'; that while he was talking to the occupant of Room 36 he saw a man by the name of Charles Shuck, a known narcotics user, come out of Room 37; that he asked Shuck what he was doing in that room and Shuck stated that he had gone to the room to use narcotics and had used heroin while in the room; that he asked Shuck if there were any more narcotics in the room; that Shuck replied that there were but that he did not know exactly where; that while he was talking to Shuck two other men approached Room 37; that he recognized one of the men as a known narcotics user by the name of Romero, also known as 'Snake'; that he asked the men where they were going, and Romero stated that they were going to Room 37 to see 'Wimpy'; that he and Romero then approached Room 37 and he knocked on the door; that a voice from inside asked who was there; that he replied 'Me and Snake'; that the door was then opened by defendant Soto; that until that moment he did not know that Soto was in the room; that he proceeded into the room and notified Soto that he was under arrest; that he noticed 'Wimpy' asleep in the bed and he awoke 'Wimpy'; that while he was doing this, Soto started to put on his shoes; that he seized the shoes and found a hypodermic needle and eye dropper in one shoe and two packets of heroin in the other. Admittedly, the officers did not have a search warrant or a warrant of arrest.

The defendant Soto was taken to the police department where he admitted that the heroin and needle belonged to him. At that time he stated that he had brought these articles to 'Wimpy's' room the night preceding the arrest and had spent the night with 'Wimpy'. These admissions, on this motion, must be disregarded. Hall v. Superior Court, 120 Cal.App.2d 844, 262 P.2d 351; People v. Schuber, 71 Cal.App.2d 773, 163 P.2d 498.

Under this evidence, for the purpose of a motion under section 995 of the Penal Code, were the search and seizure illegal? That is the question.

The parties first argue as to whether the arrest in the instant case was or was not a lawful one. That is not the decisive question involved. A search may be unlawful although the arrest is legal. People v. Brown, 45 Cal.2d 640, 290 P.2d 528. The real criterion as to the reasonableness of a search is whether or not there has been the commission of a public offense in the presence of a police officer, or whether, under the facts, the police officer has reasonable grounds to believe that the defendant may have committed a felony. See People v. Winston, 46 Cal.2d 151, 293 P.2d 40; People v. Rios, 46 Cal.2d 297, 294 P.2d 39; People v. Martin, 46 Cal.2d 106, 293 P.2d 52; People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57; People v. Gale, 46 Cal.2d 253, 294 P.2d 13; People v. Johnson, 139 Cal.App.2d 663, 294 P.2d 189; People v. Villarico, 140 Cal.App.2d 233, 295 P.2d 76; People v. Martin, 140 Cal.App.2d 387, 295 P.2d 33; People v. Moore, 140 Cal.App.2d 870, 295 P.2d 969; People v. Rodriguez, 140 Cal.App.2d 865, 296 P.2d 38; People v. Moore, 141 Cal.App.2d 87, 296 P.2d 91; People v. Lujan, 141 Cal.App.2d 143, 296 P.2d 93; People v. Smith, 141 Cal.App.2d 399, 296 P.2d 913; People v. Sanders, 46 Cal.2d 247, 294 P.2d 10; People v. Dixon, 46 Cal.2d 456, 296 P.2d 557.

Reasonable or probable cause has been discussed in many cases. Generally speaking, it means "'such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion, that the person accused is guilty."' People v. Smith, 141 Cal.App.2d 399, 296 P.2d 913, 915; see also People v. Villarico, 140 Cal.App.2d 233, 295 P.2d 76; People v. Rodriguez, 140 Cal.App.2d 865, 296 P.2d 38; People v. Moore, 141 Cal.App.2d 87, 296 P.2d 91; People v. Moore, 140 Cal.App.2d 870, 295 P.2d 969.

In the instant case Officer Hilliard knew that the police had received an anonymous tip that a narcotic party was being held in Room 37 of the Baldwin Hotel. He discovered that Garcia was the registered occupant of that room. Then he learned from the occupant of an adjoining room that there was a steady stream of people going into Room 37, and that 'sniffing' noises and conversation about narcotics came from the room. Then he learned from Shuck, a known user, that he had just used narcotics in that room, and that there were more narcotics in the room. He then recognized Romero, a known user, going to the room. Under such circumstances, if Garcia, the registered occupant of the room, was the person here involved, the arrest and search would clearly have been lawful, and respondent does not argue to the contrary. The law on this issue is clear. While an anonymous tip, of itself, cannot alone constitute reasonable grounds for a belief that a person is guilty of the commission of a felony, People v. Thymiakas, 140 Cal.App.2d 940, 296 P.2d 4, it is a factor to be considered. The police, in a proper case, may act on information received from others if the source is reliable. Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36; People v. Boyles, 45 Cal.2d 652, 290 P.2d 535. When this factor is considered with the other information then known to Officer Hilliard it would appear that he had reasonable grounds to believe that a felony had been committed in that room. In People v. Maddox, 46 Cal.2d 301, 294 P.2d 6, the officers had defendant's residence under surveillance for about a month. They observed known narcotics users frequenting the premises. They were told by two visitors to the premises that they had just received a shot of heroin there. A search, based upon a forcible entry, was held to be lawful. A similar result was reached in People v. Sayles, 140 Cal.App.2d 657, 295 P.2d 579. There the police, knowing defendant was an addict, placed his home under surveillance. A paid informer told the police that defendant had narcotics in his home and had sold some to the informer. It was held that a search based on a forcible entry was legal because the officers had reasonable grounds to believe that defendant had committed a felony. See also Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36; and People v. Villarico, 140 Cal.App.2d 233, 295 P.2d 76.

As already pointed out, if Garcia were the defendant in the instant case, the search would clearly have been a legal one. But he is not. Soto, a man the police officer, until his entry, did not know was in the room, is the defendant....