People v. Tolliver
| Decision Date | 23 December 1975 |
| Docket Number | Cr. 27078 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Appellant, v. Edward TOLLIVER and Bernice Calep, Defendants and Respondents. |
John E. Howard, Acting Dist. Atty. of Los Angeles County, Harry B. Sondheim, Head, Appellate Div., Donald J. Kaplan and Daniel L. Bershin, Deputy Dist. Attys., for plaintiff and appellant.
Morrise Davis, Los Angeles, under appointment by the Court of Appeal, for defendant and respondent Edward Tolliver.
James L. Garcia, Jr., Los Angeles, under appointment by the Court of Appeal, for defendant and respondent Bernice Calep.
In this action defendants Edward Tolliver and Bernice Calep were charged with the commission of three felony offenses--all occurring on September 11, 1972. Count I of the information charged that defendants had the narcotic, heroin, in their possession for sale in violation of Health and Safety Code section 11500.5. 1 Count II charged that defendants had in their possession for sale a restricted dangerous drug, to wit, secobarbital, in violation of Health and Safety Code section 11911. 2 Count III of the information charged that defendants had in their possession for sale the narcotic, marijuana, in violation of Health and Safety Code section 11530.5. 3 By an amendment to the information a prior conviction of a felony was alleged against defendant Edward Tolliver. Defendants entered pleas of not guilty to these charges.
Defendants moved to suppress evidence pursuant to Penal Code section 1538.5. There was a pretrial hearing on this motion as well as on defendants' motion to require the People to disclose the identity of an informer. 4
At the conclusion of the hearing, the trial judge denied the motion to suppress, but granted the motion for disclosure. The People, through the investigating police officer who testified at the hearing, having claimed the privilege for nondisclosure of an informer's identity, the trial judge made a finding under Evidence Code section 1042(d) that there was a reasonable possibility that nondisclosure might deprive defendants of a fair trial and, accordingly invoked against the prosecution the sanction of dismissal of the information.
The People appeal from this order of dismissal pursuant to Penal Code section 1238(a)(8).
In the afternoon of September 11, 1972, Ronald J. Gilbert, a police officer for the City of Los Angeles, talked with an informant who told Officer Gilbert that he knew of a couple, a man by the name of Melvin--a male Negro in his thirties and of slender build, and a female by the first name of Bernice--also a Negro in her thirties and of a slim and slender build, who were residing at 2123 East 115th Street in Los Angeles. The informant further told Officer Gilbert that these persons were selling heroin from the premises; that the informant had been there on a number of occasions in the past and had personally purchased heroin from each of these persons on separate occasions and had observed these persons selling narcotics and dangerous drugs to other people who came to the residence.
The informant also told Officer Gilbert that Melvin carried a gun, a small .38 caliber Smith and Wesson, and that at some prior time Melvin had used this gun to pistol-whip a brother of Bernice over a narcotics transaction.
Shortly thereafter, on the same date, the informant was skin-searched and given twenty dollars to proceed to the location and attempt to make a purchase of heroin from Bernice and Melvin. The informant was driven to an area within a short distance of the premises at 2123 East 115th Street. He was watched by police officers stationed at various locations to make sure that he did not come in contact with any person on his trip to the premises. The informant was seen by one of the police officers to go into the premises and subsequently leave the premises. The informant returned to Officer Gilbert and gave the officer a balloon which contained heroin, and which the informant said he had purchased from Bernice, with Melvin standing by and overseeing the transaction.
The informant told Officer Gilbert that Bernice was wearing a blue jumpsuit, appeared to be intoxicated, and that Melvin was dressed in dark colored trousers and was bare chested.
At about 5:00 p.m. on this same afternoon, Officer Gilbert, accompanied by other police officers, went to the premises on East 115th Street, observed that the front door was open and that several persons were inside. The police officers then made an entry into the premises, with one officer displaying his police badge. The officers found two males and two females in the living room in addition to a woman in a blue jumpsuit. The woman in the jumpsuit told the officers that her name was Bernice Calep. She is a defendant herein. Officer Gilbert saw no male in the living room fitting the description of Melvin given by the informant.
The officers went upstairs in the premises to one of two bedrooms and observed lying on the bed a man who appeared to be asleep. He was bare chested and wearing a pair of dark colored trousers. Upon being asked his identification, the man stated that his name was Edward Tolliver, that he sometimes used the name of Melvin Gully, but that his real name was Eddie Tolliver. He is a defendant herein. The officers removed from under the pillow on the bed a .38 caliber revolver.
The officers asked Tolliver if he would give permission to make a search of the premises. Tolliver replied that he did not live at the location and so could not give permission for the search, and that the officers would have to talk to Bernice. Officer Gilbert then went downstairs and talked with defendant Bernice Calep and requested from her permission to search the premises. Defendant Bernice Calep stated that she would not give any consent to a search.
Defendants Tolliver and Calep were handcuffed and remained on the premises with other officers while Officer Gilbert and another officer left the premises to obtain a search warrant. When defendants were handcuffed they were not advised that they were under arrest. Officer Gilbert testified that he did not consider this to be a formal arrest although, technically, the defendants could be considered to be under arrest. It was a few minutes after five o'clock when Officer Gilbert and another officer left the premises in order to obtain a search warrant. At about 6:00 p.m., Officer Gilbert talked to another police officer who knew the informant, and this police officer stated that the informant was reliable because he had worked with him on two prior occasions and on these two occasions the informant had proved to be reliable. This information was placed in the affidavit used to obtain a search warrant. A search warrant was obtained and the officers returned to the premises at approximately 10:00 p.m. that same evening of September 11, 1972.
Upon a search of the premises, made after 10:00 p.m., the contraband which provided the basis for the charges against defendants was found in the kitchen and in the two bedrooms upstairs, including the east bedroom where defendant Tolliver had been discovered on the bed. One hundred capsules of secobarbital were found in a dresser drawer of this same bedroom. Officer Gilbert testified that quantities of one hundred were a normal method of packaging barbiturates for wholesale. Items of men's clothing were found in this same bedroom. Although these clothing items appeared to fit defendant Tolliver, they would also have fit one of the two other men found on the premises upon the officers' entry. Underneath the bed in the same bedroom was found narcotic paraphernalia commonly used by persons preparing heroin for street sale. Marijuana was found in both bedrooms. Heroin was found in a cabinet in the kitchen.
There was testimony at the hearing that the heroin was packaged in a manner that would indicate that it would sell for $50 or $70 for a raw spoon, rather than the regular package that would be sold to a user on the street. Papers were found in various parts of the premises that bore defendant Calep's name, while others bore defendant Tolliver's name.
The search which discovered the contraband lasted approximately two hours. After seizure of the contraband, Officer Gilbert formally told defendants that they were under arrest. The officers left the premises with the defendants at approximately midnight.
During the hearing on the motions to supress and to disclose the identity of the informant, the testimony indicated that upon being taken from the premises after his arrest, the defendant Tolliver took a jacket out of the bedroom closet and put on shoes obtained from the same bedroom.
It is significant that the evidence produced at the hearing as to papers found on the premises which bore the name of Edward Tolliver indicated that they were all addressed to Tolliver at various other locations. The testimony established that no papers were found in Tolliver's name which indicated an address of Tolliver as being the premises where the contraband was found and seized. During the testimony of Officer Gilbert, defendants sought disclosure from him of the identity of his informant. Officer Gilbert refused to disclose the informant's identity on the basis of a claim of privilege for nondisclosure.
As a part of the proceedings of the hearing on the two motions, the trial judge conducted an In-camera hearing at which only Officer Gilbert, the trial judge and the reporter were present. The transcript of the In-camera proceedings was ordered sealed but has been made available to us on this appeal.
We have reviewed the transcript of the In-camera proceedings held by the trial judge. It reveals nothing of consequence to the determination of the issue before us. The In-camera proceedings concerned the...
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