People v. Verrette

• Decision Date: 14 February 1964
• Citation: 36 Cal.Rptr. 819,224 Cal.App.2d 638
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ester VERRETTE, Defendant and Appellant. Crim. 4414.

Page 819

36 Cal.Rptr. 819

224 Cal.App.2d 638

PEOPLE of the State of California, Plaintiff and Respondent, v. Ester VERRETTE, Defendant and Appellant.

Crim. 4414.

District Court of Appeal, First District, Division 3, California.

Feb. 14, 1964.

Rehearing Denied March 4, 1964.

Hearing Denied April 8, 1964.

Garfield W. Steward, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Robert R. Granucci, John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

DEVINE, Justice.

On February 8, 1963, officers were watching the entrance to the premises, described below, at 1528 Haight Street, San Francisco. They commenced their vigil at about 8 p. m. It was brought out on cross-examination by counsel for appellant's codefendant, James Wesley Fisher, that the reason for the surveillance was that the officers had information going back to 1961 that there were large quantities of marijuana being sold out of the premises, and that they had made a purchase of about a kilo of marijuana at 1528 Haight Street on January 18, 1963. The name of the 1961 informant was asked of an officer, on cross-examination by counsel for appellant's codefendant, but the court sustained an objection to this.

At about 10:30 p. m., appellant's codefendant, Fisher, entered the premises. He had been known to one of the officers since 1960, and he had been seen entering 1528 Haight Street on occasions prior to February 8, 1963. Shortly after midnight, and therefore on February 9, 1963, Maxwell Thomas entered 1528 Haight Street. Thomas came out in about 15 minutes. He was carrying a brown paper bag. The officers followed him, and as they approached, he threw the bag away. He denied that he had thrown it. He denied that he had come from any house and said he had come from a store. The officers found what appeared to be (and which later was determined to be) marijuana in the bag and a marijuana cigarette in Thomas' pocket.

The officers returned to the area in front of 1528 Haight Street. Fisher opened the door from the inside. Inspector Logan yelled to him: 'Police Officer. I would like to talk to you.' Fisher stepped back about one foot and dropped a bag he had held in his right hand. (This was later found to contain marijuana, but at the time of the rapidly occurring events, the contents were not seen.) He was then handcuffed. Fisher 'yelled up, with a head motion up the stairs, 'Ester, the cops, destroy."

The officers, having entered the open door, ran up the stairs. Almost directly at the top of the stairs is a door. This was opened and appellant 'peered out,' but her whole body, not just her head, was seen; she was dressed in underclothing and perhaps a robe. Logan told her he was a police officer and that he wanted to talk to her. She slammed the door. Almost simultaneously, the officer pushed the door in, causing some damage to the molding around the lock.

The officer saw a brown bag similar to the one that Thomas had held, on the floor by the bed. It contained what appeared to be (and later was proved to be) marijuana. More than $1,000 in cash was found in the bedclothes. A cigarette was found on the headboard of the bed, and it, too, contained marijuana. Appellant was asked if she had any more and she said no, that the officers could 'search this place high and low, you won't find any more.' The officers did search other rooms on the floor (it was the second floor), another bedroom, living room, kitchen, several vacant rooms where furniture was stored. Appellant had keys to the other rooms except one, and of this one, the officers forced the door. Appellant was the only occupant. No more marijuana was found.

Appellant was convicted of violation of section 11530.5 of Health and Safety Code (possession of marijuana for sale). She did not testify at her nonjury trial. Her points on appeal are: (1) It was error to deny the name of the 1961 informant. (2) There was not reasonably cause for the search without a warrant which brought to light the evidence.

1. As to the name of the informant: At trial, appellant made no attempt to gain the name of the informant in 1961; counsel for codefendant attempted to cross-examine about the name, but, he said, just by way of testing the credibility of the officer, and he virtually conceded that he was not entitled to its as discovery. A defendant cannot raise the issue of nondisclosure on appeal when he did not seek disclosure at the trial or move to strike testimony on refusal to disclose. (Priestly v Superior Court, 50 Cal.2d 812, 819, 330 P.2d 39.)

Anyway, the People did not rely on what the informant had told the officers in 1961 as the reason for the entry and search. The prosecution did not bring out this testimony; it appeared under cross-examination of an officer, and this shows nonreliance on the informant. (People v. Cuda, 178 Cal.App.2d 397, 410, 3 Cal.Rptr. 86.) It was clearly put that this rather old information was a reason for the surveillance, and it was not asked whether the entry and search were based at all on this information. The trial judge stated that the search was justified by the events immediately preceding it. Disclosure is not required where there was reasonable cause for the search apart from an informer's communication. (People v. Williams, 51 Cal.2d 355, 359, 333 P.2d 19.)

2. The major point is the reasonableness of the search. This is not a case in which the rooms on the second floor of the building were occupied by separate tenants, each of whom would have his own diminutive 'castle,' his room, which, to use Lord Chatham's quaint words, 'the storm may enter, the rain may enter; but the king of England cannot enter.' Had it been so, the mere slamming of the door in the officers' faces would not have justified a search, because the right to be free from unreasonable police intrusions cannot be vitiated by the mere assertion of that right. (Tompkins v. Superior Court of the City and County of San Francisco, 59 Cal.2d 65, 68, 27 Cal.Rptr. 889, 378 P.2d 113.)

Although the premises were not described at the trial as thoroughly as one would wish, there was ample evidence from which the judge could draw the conclusion that 1528 Haight Street was the usual flat, so numerous in San Francisco, with its own entrance from the street or from an outside stairway, and that it constituted a single, individual abode. The evidence is this: (1) the building is a large three-story building with a shoe store on the street floor and two resident flats above the store; (2) 1528 has its own address; (3) appellant, after discovery of the marijuana, showed the officers through the other rooms, to which she had keys, on the floor (except the one, where the door was forced); (4) the rooms are usual ones to a flat--living room, dining room, kitchen, etc.; (5) there was no other occupant; (6) the officer carefully corrected his cross-examiner when he asked him about the 'apartment' where he found appellant, saying, 'It wasn't an apartment, it was a room in the flat'; (7) there was no evidence against all of the above, offered on behalf of appellant, nor was there cross-examination to attack the proposition that appellant was an occupant of a flat. 'Flats are as much separate dwellings as ordinary adjoining houses are. The difference is that flats are under one roof, and are divided one from another by a horizontal plane, but ordinary adjoining houses by a perpendicular or vertical plane.' (McDowell v. Hyman, 117 Cal. 67, 71, 48 P. 984, 986.)

The legality of the entry, then, is to be decided as to the entry which was made into the door leading to the exterior, the one Fisher opened. If entry to the whole abode was legal, the attempted interference by slamming the interior door could be overcome rightfully. (People v. Maddox, 46 Cal.2d 301, 294 P.2d 6.)

The question, then, is whether the entry through the exterior door and the pursuit of the search were legal. The governing principles are: (1) The search is not to be justified by what it turns up. (People v. Brown, 45 Cal.2d 640, 643, 644, 290 P.2d 528.) Hence, the contraband which led to appellant's arrest, which was in the bedroom, is not to be considered as a basis for the search. (2) The circumstances apparent to the officers at the time they were required to act are to be considered. (People v. Brajevich, 174 Cal.App.2d 438, 444, 445, 344 P.2d 815.) (3) The weight to be accorded the information possessed by the officers at the time they made the arrest is for the trial court in the exercise of its sound discretion. (People v. Ker, 195 Cal.App.2d 246, 253, 15 Cal.Rptr. 767; People v. Fisher, 184 Cal.App.2d 308, 312, 7 Cal.Rptr. 461.) (4) Search may be lawful although it precedes an arrest. (People v. Torres, 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 366 P.2d 823.) (5) Reasonable cause is shown if a man of ordinary care and prudence would be led to believe and conscientiously entertain a strong suspicion that the person is guilty of a crime. (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577.) (6) Suspects have no constitutional right to destroy evidence. People v. Maddox, 46 Cal.2d 301, 306, 294 P.2d 6; People v. Gauthier, 205 Cal.App.2d 419, 427, 22 Cal.Rptr. 888.) (7) It is well known that the public sewerage system affords a convenient, rapid and effective means whereby the occupant of the premises, while maintaining his rights as standing within this dwelling, can get contraband narcotics out of the dwelling. (See People v. Torres, supra, 56 Cal.2d at p. 867, 17 Cal.Rptr. at p. 497, 366 P.2d at p. 825; People v. Hurst, 183 Cal.App.2d 379, 385, 6 Cal.Rptr. 483; People v. Merino, 151 Cal.App.2d 594, 597, 312 P.2d 48.)

Now, to apply these principles to the case: The officers, before they completed entry, knew the following: (1) A buy of narcotics had been made by officers at 1528 Haight Street three weeks earlier. (2) Thomas emerged from 1528 Haight Street carrying a bag which he threw away when the...