People v. Sullivan

• Decision Date: 20 May 1965
• Docket Number: Cr. 10010
• Citation: 234 Cal.App.2d 562,44 Cal.Rptr. 524
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Worth SULLIVAN, Defendant and Appellant.

Page 524

44 Cal.Rptr. 524

234 Cal.App.2d 562

The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Worth SULLIVAN, Defendant and Appellant.

Cr. 10010.

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

May 20, 1965.

Mervyn L. Hecht, Pacific Palisades, by appointment of the District Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Ernest S. Gould, Deputy Atty. Gen., for respondent.

FLEMING, Justice.

Defendant was found guilty of unlawful possession of heroin (Health and Safety Code, § 11500). On appeal he contends the quantity of heroin seized was insufficient to sustain a conviction for possession of a narcotic.

On November 15, 1963, defendant had been arrested in a hotel lobby for being under the influence of narcotics. As the officers started to search defendant, he said he had a room in the hotel and would rather be searched there. The officers went with defendant to his room and, after searching him, started to search his room. Defendant said as long as they would find his outfit anyway, he would show them where it was, indicating the dresser. The officers searched the dresser and found a blue plastic case containing a syringe, an extra bulb, an extra syringe, a match cover folded over to protect the needle, a measuring spoon, and an ordinary kitchen spoon. There was cotton in the bottom of one of the spoons, and this cotton was still moist.

At the trial a police chemist testified there was a residue on the spoons and the residue contained heroin. The residue on the spoons was visible to the naked eye, he stated, but the heroin crystals themselves were detectable only through chemical testing and by microscopic observation. No analysis was made of the cotton.

We believe this case is similar to People v. Aguilar, 223 Cal.App.2d 119, 35 Cal.Rptr. 516, wherein the issue was stated: 'Does the possession of two spoons, which are parts of narcotic injection kits, from the scrapings of which a forensic chemist was able to detect a minuscule amount of heroin, constitute the known possession of the narcotic itself?' In concluding that it did not, the court held that where a narcotic is imperceptible to the human eye and its presence can only be detected through chemical analysis, the evidence is insufficient to sustain a conviction for known possession of the narcotic. The court distinguished several cases which had held that the presence of a narcotic in a minute amount or in fragmentary form is sufficient to sustain a finding of known possession (People v. Anderson, 199 Cal.App.2d 510, 520, 18 Cal.Rptr. 793; People v. Marich, 201 Cal.App.2d 462, 19 Cal.Rptr. 909; People v. Jones, 113 Cal.App.2d 567, 248 P.2d 771; People v. One 1959 Plymouth Sedan, 186 Cal.App.2d 871, 9 Cal.Rptr 104), on the ground that the narcotic in those cases had been found in a recognizable state, while in the case before it the substance was in a different form. 'What remained in the bottom of the spoons was residue which was in a completely different form from that of heroin powder.' (223 Cal.App.2d 122, 35 Cal.Rptr. 518.)

Similarly in People v. White, 231 A.C.A. 107, 41 Cal.Rptr. 604, police officers in defendant's apartment observed fresh marks on defendant's arms, balloons on the dresser, two spoons containing a visible residue, several eyedroppers, and a hypodermic needle. The court, citing Aguilar, reversed a conviction for possession of heroin. See also People v. Melendez, 225 Cal.App.2d 67, 37 Cal.Rptr. 126; People v. Cole, 113 Cal.App.2d 253, 262, 248 P.2d 141 (suggesting that a minute quantity of marijuana would not constitute known possession of the narcotic).

We see no reason to distinguish this case from Aguilar and those decisions which have followed it. Here the traces of heroin on the spoon were not visible to the naked eye. The powder had been liquefied, and the residue which remained was different in form from the original substance. It seems evident that defendant was not aware of the heroin. He voluntarily invited the officers to his room; he offered to show them where his outfit was located; and when Officer Brown, upon finding the outfit, said, 'Mr. Sullian, you have yourself a possession,' defendant answered, 'Where? * * * I thought he was kidding, you know.' As said in Aguilar, 'It is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic . * * * The presence of the narcotic must be reflected in such form as reasonably imputes knowledge to the defendant.' (pp. 122-123, 35 Cal.Rptr. p. 519.)

The attorney general, however, contends a conviction was proper because defendant admitted using narcotics on the morning of his arrest and admitted permitting others to use his room to take a fix, and thus he knew or should have known that a residue of heroin would remain on the spoons. The logic of this contention would convert evidence of recent past possession of narcotics into proof of present possession of narcotics, a proposition which has been implicitly rejected in Aguilar, supra, and in Melendez, supra. Were we to accept evidence of recent past possession of narcotics as equivalent to proof of present possession of narcotics, then we could charge every addict who was currently hot with possession of a narcotic, since he must have had possession of the narcotic in the recent past in order to come under its influence.

While, concededly, there is an element of gamesmanship in securing proof of unlawful possession of narcotics, the criminal law is engaged in a continuous process of drawing lines, and in the enforcement of offenses involving possession of narcotics fixed lines appear to be unavoidable. (People v. Cruz, 61 Cal.2d 861, 866, 40 Cal.Rptr. 841, 395 P.2d 889.) To this end we believe the Legislature has established helpful guidelines in distinguishing the crimes of possession of narcotics paraphernalia (Health and Safety Code, § 11555) and of being under the influence of narcotics (Health and Safety Code, § 11721), both misdemeanors, from the more serious crime of possessing the narcotic itself (Health and Safety Code, § 11500), a felony. This distinction is pertinent to the present case where the evidence shows that defendant was in possession of a narcotics kit and was under the influence of narcotics; but does not support the charge that he knowingly possessed heroin.

We conclude that possession of a minute crystaline residue or narcotic not intended for consumption or sale and useless for either of these purposes is insufficient evidence to sustain a conviction for known possession of a narcotic.

Judgment reversed.

ROTH, P. J., concurs.

HERNDON, Justice (concurring).

I concur in the judgment and, in major part, agree with the opinion of my colleagues. However, I deem it appropriate to set forth the somewhat different process of reasoning which leads me to the same conclusion. In my opinion, the decision in People v. Aguilar, 223 Cal.App.2d 119, 35 Cal.Rptr. 516, and the later decisions in People v. Melendez, 225 Cal.App.2d 67, 37 Cal.Rptr. 126, and People v. White, 231 A.C.A. 107, 41 Cal.Rptr. 604, which cite and follow Aguilar, do not promulgate any radically novel rule of criminal law which would preclude successful prosecution of charges of possession of narcotics except in cases where the guilty possessor has been apprehended 'flagrante delicto.'

The vast majority of crimes are of such a nature that necessarily they will constitute 'past' crimes in the sense that they were perpetrated some time before the perpetrator was apprehended, except in those rare and fortuitous instances in which the criminal is 'caught in the act.' Even in crimes, such as the instant one, involving 'possession' of some specified contraband, in which the 'act' of commission may extend over a considerable period of time, the governing rules are not different.

As stated in People v. Belli, 127 Cal.App. 269, 271, 15 P.2d 809, 810: '[I]n order to establish possession within the meaning of said act, it is necessary to prove that the possession was immediate and exclusive and under the dominion and control of the person charged with such possession. But nowhere do the terms of the act require, nor, so far as our attention has been called, do any of the decisions interpreting the act hold as appellant seems to contend, that proof of possession at the very time of arrest is essential.' (Emphasis added.)

Neither do I regard the Legislature's enactment of prohibitions against 'being under the influence of narcotics' or in possession of 'paraphernalia' (neither of which is a necessarily included lesser offense within the crime of possession of narcotics) as indicative of that body's intention to establish a different rule. They appear to me only to indicate the reasonable desire to 'cover the field' in connection with this grievous social problem and a realistic recognition that problems of proof often prevent successful prosecution for the more serious, but related, offenses. Their true purpose, therefore, should not be thwarted by the enunciation of a rule which would prevent prosecution for the more serious offenses in cases where their commission can be proved beyond all reasonable doubt.

No reason for developing a different rule in regard to the crime of possessing heroin has been suggested and I do not read the Aguilar decision, or those which have followed it, as requiring the creation of such a novel concept. As I read these decisions, they amount to no more than a reasonable determination that where the prosecution is based solely upon the alleged possession of spoons (Aguilar and White) or a pipe (Melendez), which contain narcotic debris in altered form, such debris is not itself sufficient to sustain a conviction for its possession.

That is to say, if the residual debris itself is the...