People v. Zavaleta

• Decision Date: 05 July 1960
• Docket Number: Cr. 6925
• Citation: 6 Cal.Rptr. 166,182 Cal.App.2d 422
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Raul Ramirez ZAVALETA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 166

6 Cal.Rptr. 166

182 Cal.App.2d 422

PEOPLE of the State of California, Plaintiff and Respondent, v. Raul Ramirez ZAVALETA, Defendant and Appellant.

Cr. 6925.

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

July 5, 1960.

Patrick E. Duggan, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., for respondent.

LILLIE, Justice.

Defendant was charged with possession of heroin in violation of Section 11500, Health & Safety Code, and two prior felony convictions--grand theft from the person and possession of narcotics. He pleaded not guilty, denied the prior convictions and personally waived his right to a jury trial. The matter was heard by the court which found him guilty and that he had been previously convicted as charged; from the judgment and sentence he appeals.

The People's case consisted of the testimony of the two police officers who arrested defendant. On March 26, 1959, around 10 a. m., Officers Dorrell and Fesler went to a warehouse where defendant was employed. After speaking to the foreman, the latter called defendant from a box car which had been pulled up alongside of the building. Defendant walked over to the officers where he was shown their identification cards and told '(W)e are police officers. We would like to talk to you.' Defendant then said '(J)ust a minute,' turned and started to walk back toward the box car. Officer Dorrell took hold of defendant's arm and said '(W)e would like to talk to you now.' The officer did not pull or shove the defendant who then turned back around; the officer let go of his arm. Defendant then walked towards the door, together with the two officers, through the warehouse, outside under a roofed portion of a platform. Although Sergeant Fesler thought that as defendant turned around Officer Dorrell suggested to him that they go outside 'to get away from the other people inside there,' the officers did not 'walk' him outside the warehouse, did not in any way physically touch him as they walked out together, did not tell him to go outside, and said nothing to him while walking before they reached the outside of the warehouse. Standing on the outside platform, Officer Dorrell asked him if he was using narcotics, which defendant denied; then if he was selling them, and defendant said 'no.' The officer then said to him '(W)ell, then, you don't mind if we look through your pockets, do you?' and defendant answered '(N)o, go ahead and search me if you want to. I don't have anything on me.' Whereupon Officer Dorrell searched him and found in defendant's right-hand shirt pocket three capsules of heroin. Defendant told the officers the capsules contained heroin and he had bought them for his own use for $20; but denied having an outfit. They then told him he was under arrest and handcuffed him. Asked if he had an automobile, defendant answered in the affirmative and pointed to a Buick parked 100 or 150 feet away. They took the keys from defendant and opened the trunk, removing a tinfoil wrapped object and held it up to the defendant who said '(T)hat's my outfit.' At the police station, Officer Fesler unwrapped the package and found a hypodermic needle, eye dropper and one capsule of heroin. Defendant said he had forgotten about the capsule.

Defendant testified that the officers 'grabbed' him by the arm and 'walked' him outside during which time an officer had 'ahold' of his arm; that the officers did not force him outside, they 'took' him outside and he did not resist; that when the officers asked if they could search him he answered 'No, you cannot search me,' but they removed his three-quarter apron and did so; and that after finding the narcotic in his pocket they handcuffed him.

Appellant urges reversal of the conviction on the ground that any consent he might have given to the officers was in submission to unlawful authority and involuntary; the search, seizure and arrest were illegal; and his constitutional rights were violated by the trial court in its use of the probation report in determining the truth of the charge of his prior felony convictions.

The question of consent to the search of defendant's person--whether it was given, and if so, whether it was voluntary--arising out of the testimony of the police officers and that of the defendant, was one of fact for the determination of the trial court (People v. Gorg, 45 Cal.2d 776, 291 P.2d 469; People v. Michael, 45 Cal.2d 751, 290 P.2d 852; People v. Fischer, 49 Cal.2d 442, 317 P.2d 967); and its finding, when supported by substantial evidence, is binding upon the appellate court (People v. Hood, 149 Cal.App.2d 836, 309 P.2d 135). As was his duty, the trial judge resolved the conflict; determined the issue adverse to defendant by accepting the testimony of the police officers as true and rejecting defendant's version of what occurred; and, in finding him guilty, impliedly held that defendant voluntarily consented to the search of his person, after which he was legally arrested for possession of heroin. That consent was given and that the same was voluntary, is borne out by the evidence and all inferences reasonably deducible therefrom; and that the search made pursuant thereto was reasonable, and the resultant arrest legal, are clearly supported by the decisions in this state (People v. Burke, 47 Cal.2d 45, 301 P.2d 241; People v. Michael, 45 Cal.2d 751, 290 P.2d 852; People v. Gorg, 45 Cal.2d 776, 291 P.2d 469).

The officers specifically sought out, at his place of employment, defendant who had only several years before in this county suffered a prior felony conviction for possession of narcotics; and went to the warehouse for the purpose of talking with him. There appears to be nothing unreasonable about police going to a person's home or even to his place of business, to interview him (People v. Michael, 45 Cal.2d 751, 290 P.2d 852; People v. Jaurequi, 142 Cal.App.2d 555, 298 P.2d 896). The questions were courteously asked of defendant and no threats or force were used. All defendant had to do under these circumstances, if he did not wish to have the officers look through his pockets was to say so. As stated in People v. Michael, 45 Cal.2d 751, 290 P.2d 852, it is not necessary for a person to forcibly resist either an officer's assertion of authority or his request to conduct a search--a simple objection is sufficient; but if he freely consents to a search his constitutional rights are not violated and the search and seizure of the evidence pursuant to the consent are not unreasonable (45 Cal.2d at page 753, 290 P.2d at page 853).

In the Michael case, supra, (45 Cal.2d 751, 290 P.2d 852), the officers, who identified themselves as such, were admitted to defendant's home by her mother and, pursuant to their query whether she had any narcotics, defendant and her mother produced narcotics and hypodermic equipment, whereupon defendant was arrested. The court, taking into consideration the fact that four officers at the door may be a disturbing experience to a distraught or timid woman, nevertheless said at page 754 of 45 Cal.2d, at page 854 of 290 p.2d: 'Under these circumstances, to hold as a matter of law that the evidence was produced in response to an unlawful assertion of authority would seriously hamper officers in the reasonable performance of their duties.' Similarly, in People v. Jaurequi, 142 Cal.App.2d 555, 298 P.2d 896, the officer asked defendant 'how his habit was getting along and how his marks were' (142 Cal.App.2d at page 560, 298 P.2d at page 899), and defendant responded by displaying his arms, from which the officer concluded he had been using narcotics and arrested him. Citing People v. Michael, 45 Cal.2d 751, 290 P.2d 852, the court held that it was not unreasonable for officers to seek interviews with suspects and, if during such inquiries the accused voluntarily reveals evidence against himself, he may not later assert that he acted only in response to an implied assertion of unlawful authority (142 Cal.App.2d at page 560, 298 P.2d at page 899).

In the case at bar, when the officers identified themselves and Officer Dorrell told defendant they wanted to talk to him, defendant did not indicate a refusal to do so but wanted them to wait 'a minute,' and started back to the box car, where he no doubt would have removed the narcotic from his pocket. Then after walking outside with the officers, the latter simply asked defendant if he was using or selling narcotics. After defendant said he was not, it was then they asked if he minded if they looked through his pockets, to which, with the same bluff and bravado with which defendant in the Jaurequi case displayed his arms to the officers, he said '(N)o, go ahead and search me. I don't have anything on me.' This clearly supports a consent freely and voluntarily given in response to a reasonable inquiry. The evidence shows no conduct from which force, compulsion, or threats can be inferred. The inquiries of defendant were courteously made and, other than the fact they were police officers, their request was not accompanied by any assertion, official or otherwise, of a right to search. Appellant's claim that he permitted the search of his person only because they were police officers and didn't want to resist and therefore his consent was in response to an implied assertion of unlawful authority, is, under the circumstances at bar, wholly without merit (People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852). Even in cases in which the accused is in custody, or under arrest, the courts have held that his official detention alone is not sufficient to make his consent to search involuntary per se (People v. Fischer, 49 Cal.2d 442, 317 P.2d 967).

Nor is there anything in the record to justify any finding that defendan...