People v. Thomas

Decision Date20 November 1970
Docket NumberCr. 17361
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Rudolph THOMAS, Defendant and Appellant.

Philip J. Catanzaro, Jr., Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Lawrence P. Scherb, II, Deputy Atty. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

Defendant was charged by information with possession of heroin for sale. (Health & Saf. Code § 11500.5.) He pleaded not guilty. A motion under section 995 of the Penal Code was denied. A motion under section 1538.5 of the Penal Code was submitted on the transcript of the preliminary hearing, plus additional testimony by defendant and by the arresting officer. The motion was denied. Jury trial was duly waived. Defendant was found guilty as charged and sentenced to state prison. The appeal is from the judgment of conviction.

For about one month prior to September 27, 1967, Sergeant Gouge of the Los Angeles Police Department had been receiving information about defendant from four different sources. This information consisted of defendant's address and apartment number and the facts that he was selling heroin, that he had recently purchased a red Mustang and that he was using the automobile to deliver the heroin. The informers advised the officer that they had observed narcotics in defendant's apartment and had seen others buying narcotics from defendant. Gouge had previously received information from three of the four informers and this information had led to arrests and convictions of a number of persons of whom the officer named four. Gouge had received information concerning defendant from his informers as recently as September 26, 1967. He was not told, however, how recently the informers had seen heroin in the apartment.

After receiving this information Gouge secured a photograph of defendant and directed the Police Department Intelligence Division to run a check on the utilities. The officer believed that they had come back listed to 'Rudy Thomas.' On September 26, 1967, Gouge went out and observed the location. On September 27, at about 8:45 a.m., Gouge placed defendant's apartment building under surveillance. At 10:00 a.m. he saw defendant leave the building and walk to a red Mustang parked in an adjacent carport. Gouge was in a parked automobile some fifty feet east of the driveway. He made no effort to stop defendant, who had to walk some twenty or thirty feet along the sidewalk from the building entrance to the carport, although he recognized defendant as the man he was seeking. After defendant reached his car, Gouge drove his police vehicle into the carport, about twenty feet from the Mustang, alighted, approached defendant, identified himself as a police officer and asked defendant for identification. Defendant produced a driver's license. Gouge told defendant that he had information that defendant was selling narcotics. Defendant replied, 'I don't fool with the stuff. You may search me if you wish.' Gouge made a cursory search which apparently proved negative.

At about this time Officers Northey and Walker who had accompanied Gouge to the location in a second police car walked into the carport. Gouge asked defendant if he had any narcotics in his automobile. Defendant stated that he did not and that the officer could search the car. After another fruitless search Gouge asked defendant if he had any narcotics in his apartment and defendant replied that he did not. Gouge asked if they could search the apartment. Defendant replied, 'I don't have anything in the apartment. You may search it, but don't tear it up.'

Defendant and the three officers then walked to defendant's apartment. To reach the apartment which was on the second floor, they had to leave the carport, walk down the sidewalk twenty to thirty feet to the building entrance and then walk down a breezeway another twenty to thirty feet to the stairway. At the apartment door defendant took a key from his pocket, inserted it in the lock and asked Gouge if he had a search warrant. Gouge replied that he did not. Defendant then said, pointing to Northey: 'Well, I am going to let you search anyway, because he looks so innocent.' He unlocked the door and the officers entered. During the search which followed, two balloons and a condom, each containing heroin, fell from an ironing board cover. Gouge testified that based on his expertise he had formed the opinion that the heroin was possessed for sale. Over $1,000 in currency was also found.

Defendant was formally arrested. He was then, for the first time, advised of his constitutional rights. (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) During an ensuing conversation defendant said that he lived alone in the apartment, but that he did, on occasion, have female visitors.

At the hearing on the motion to suppress, defendant denied having consented to the search and claimed, in contradiction of Gouge's testimony, that the officer had approached him with drawn gun and had parked his police car directly behind defendant's Mustang, blocking his exit.

At the trial the defense was that on the date of his arrest defendant was living in the apartment with a lady whose name was Thelma Jackson, but who also had been known as Barbara Jackson, Donna Long, and Donna Green. At that time he had known her for about a year. She had signed the lease to the apartment. When he had started to live with Thelma he knew that she had used narcotics in the past and warned her against further use. Nevertheless on one occasion he had caught her giving herself an injection. When the officers came to the apartment he did not know that any heroin had been hidden behind the ironing board. He had never used the board. Thelma had used it several times. Most of the money which the officers had found had been saved by defendant and Thelma. Thelma kept her clothes in the apartment. Defendant produced a rent receipt to 'T. Thomas' and a telephone bill addressed to Barbara Jackson. By stipulation the court received a 1965 arrest report showing that a Thelma La Forbes had been arrested for possession of heroin on May 19, of that year. Also admitted in evidence was a 'make sheet' on one Thelma Fallings, showing that between 1949 and 1965 she had been charged with various crimes under the following names: Gladys Battle, Thelma Baul, Thelma Baul Reese, Thelma Walsh, Adelaide Whitting, Thelma La Forbes, and Thelma Fallings. In rather garbled fashion, the prosecution and the defense stipulated that the lady to whom the two exhibits referred, was the one 'that we have been discussing.'

Defendant testified that when he was admitted to bail on the day after his arrest and returned to his apartment, Thelma had left. He had no idea where she was at the time of the trial. He could not recall being asked by the arresting officers whether anyone else was living in the apartment. He did not tell them that Thelma was living there. He merely told them that he knew nothing about the heroin that was found. Defendant was impeached with four prior felonies, two for robbery, one for grand theft, and one for possession of narcotics.

In rebuttal the People offered proof that no women's clothes were found during the search of the apartment.

At the preliminary hearing defendant requested that Officer Gouge be ordered to reveal the names of the informers. His counsel gave the following reason: 'Now the question of whether or not the narcotics found in the ironing board was put there by the so-called informers or by the defendant Or some other person, I think under the recent cases, the Garcia case (People v. Garcia, 67 Cal.2d 830, 64 Cal.Rptr. 110, 434 P.2d 366) and other District Court cases, we are entitled to know the identity of this person who was in the apartment and a precipient (sic) witness to the transactions.' (Emphasis added.) The request was denied, Officer Gouge having testified that he felt that the informers 'would be in great bodily harm and possibly deaths if their identity were known; that their value to the People of the State of California would be destroyed.' The magistrate stated that it did not appear 'at this time' that the officers would be material witnesses. Motions to strike Gouge's testimony and to dismiss were also denied. We have not found any further reference to the matter in the record.

On appeal defendant contends that neither the arrest nor his consent can justify the warrantless search of his apartment. He further claims that his conviction should be reversed because the prosecution withheld the names of the informers.

The Search

It was the prosecution's position that defendant was not arrested until after the heroin was found. If that was so, the arrest obviously cannot justify the antecedent search. On the other hand, if the justification for the search is to be found in probable cause to arrest and the fact that the search and the arrest were 'substantially contemporaneous' (People v. Cockrell, 63 Cal.2d 659, 666--667, 47 Cal.Rptr. 788, 408 P.2d 116), that probable cause was present when the officers confronted Thomas at his car, outside of the apartment. No search of the apartment could validly follow. (Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409; People v. Henry, 65 Cal.2d 842, 845--846, 56 Cal.Rptr. 485, 423 P.2d 557.)

The only possible legal basis for the search is, therefore, defendant's consent.

Defendant does not argue that his consent was invalid because he was not advised of his Fourth Amendment rights. 1 He does claim, however, that before he consented to the search of the apartment, he was in custody in the Miranda sense and should have been advised of his Fifth Amendment rights. It...

To continue reading

Request your trial
31 cases
  • People v. James
    • United States
    • California Supreme Court
    • March 15, 1977
    ...tainted because Officer Ferraro had not given him a Miranda warning. On that point the leading case is People v. Thomas (1970) 12 Cal.App.3d 1102, 1108--1112, 91 Cal.Rptr. 867, which held that advice as to Miranda rights is not a prerequisite to a voluntary consent to search. The rationale ......
  • Theodor v. Superior Court, Orange County
    • United States
    • California Court of Appeals Court of Appeals
    • November 23, 1971
    ...the speculation demonstrated at the preliminary hearing. (Cf. People v. McCoy, 13 Cal.App.3d 6, 91 Cal.Rptr. 357; People v. Thomas, 12 Cal.App.3d 1102, 91 Cal.Rptr. 867; People v. Sewell, supra, 3 Cal.App.3d 1035, 83 Cal.Rptr. 895; People v. Martin, 2 Cal.App.3d 121, 82 Cal.Rptr. Nor do we ......
  • People v. Shipstead
    • United States
    • California Court of Appeals Court of Appeals
    • July 8, 1971
    ...of his guilt or aid him in some way. (People v. McCoy, supra, 13 Cal.App.3d at pp. 12--13, 91 Cal.Rptr. 357; People v. Thomas (1970) 12 Cal.App.3d 1102, 1112--1113, 91 Cal.Rptr. 867; People v. Sewell, supra, 3 Cal.App.3d at pp. 1039--1040, 83 Cal.Rptr. 895; People v. Martin, supra, 2 Cal.Ap......
  • People v. Strawder
    • United States
    • California Court of Appeals Court of Appeals
    • September 28, 1973
    ...in the Fifth Amendment sense. (Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908; People v. Thomas, 12 Cal.App.3d 1102, 1111, 91 Cal.Rptr. 867). The request for a consent to search is designed to elicit physical and not testimonial evidence. (See Whalen v. Municipal ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT