*1 Quintal Hospital (Cal. Laurel Grove Appeal Court App.) 749. Schauer, J.,* concurred. petitions rehearing January
Respondents’ for a were denied McComb, J., Traynor, J., were 1965. C. granted. petitions opinion that should be No. 8062. Bank. 15, 1964.] Dec.
[Crim. PEOPLE, THE Plaintiff and Respondent, v. ISMAEL GALLEGOS, ORTEZ Appellant. Defendant and Supreme sitting assign *Retired Associate Justice of Court by the Chairman the Judicial ment Council. *2 Raymond Gloozman, appointment under Supreme Court, Appellant. for Defendant and Stanley Mosk and Lynch, Attorneys General, Thomas C. William E. James, Attorney Assistant General, and Felice R. Deputy Cutler, Attorney General, for Plaintiff and Re- spondent.
PEEK, Defendant’s appealjudgment a J. from of con- viction for possession (Health the unlawful of heroin & Saf. Code, 11500) in possession count I and the unlawful of § (Health marijuana Code, 11503) & Saf. II, count ground on the incriminating that of admission real evidence improper product because it was the of an search and seizure. He was prior also found to have suffered a and imprisonment conviction of for a violation of section 11500 Safety the Health and Code. Only prosecution, two witnesses were called arresting officer and a forensic chemist. The officer custody into testified that other officershad taken one Thomas Renteria when found in his automobile unconscious from heroin; while overdose that still the influence drug arresting Renteria informed the and other officers purchased drug that he had and administered to himself the occupied by apartment at an a known Renteria only by nickname; a that while he did know address accompanied apartment he nevertheless officers to the designated particular apartment building premises alleged purchase made; where the been that he further person residing that the there informed drove officers Plymouth automobile; on no occasion that black they Eenteria, that officers had contact with had the knowledge upon they judge reliability could had no an informer. that he and the other officers The officer further testified officeand then returned to the took Eenteria apartment the sheriff’s approximately p.m.; house at 11:30 that when they placed premises under one their knock no answered following morning they observed surveillance; that at 1 the alight Plymouth; from that as he defendant a black 1937 key apartment inserted into the lock of the approached Thereafter, and identified the officer themselves. “ testified: . . . I asked him if he had been arrested past, had, narcotic he that he violations he stated currently parole was at that time on for narcotic violation. placed At time I him under that arrest.” testimony bearing only on the arrest was on direct examination denied that he who defendant further on cross-examination denied that was on appear not otherwise any advised the officer. It does had so parole. event the record whether no claim is made he was detained not disclose and does *3 premises were searched possible violator or that his as a Although ordinary circum that reason. for place may parolee’s of residence be searched stances a (see Ferguson, 663, In re 670 55 Cal.2d Cal. to an arrest [12 Cal.App. 753, 417]; People Contreras, 154 Rptr. P.2d v. 361 916]), 321, P.2d in the instant the status 2d 325 case [315 parolee upon by defendant as a was not relied of the arresting lacking Hence, regard, in officer. evidence this premises immediately of defendant’s fol the search arrest, thereof, and the results could not be utilized lowed justification of the arrest. apartment disclosed mari of defendant’s The search implements used administer juana heroin, well as puncture marks were observed on ing Numerous narcotics. showing receipt rent to arms, and a defendant’s Although apartment was discovered. of the also be the lessee elapsed first since were half hours officers and a two attempt alleged they had made no violation of the informed arrest or the search. for either the a warrant to obtain knowledge going to factual the commis The officers’ obviously meager. of the arrest was at the time of a crime sion In knowledge probable determining constituted whether such
179 justified following thus search arrest, and for the cause consider the source that seizure, is incumbent we informer of unknown knowledge. an Renteria was that reliability of narcotics when- under the influence still par made in the had been a of narcotics sale revealed residing person therein drove apartment, that the ticular Standing alone, his information did Plymouth. a black 1937 (Ovalle Superior v. cause arrest constitute reasonable not Cal.Rptr. 385]), before Court, Cal.App.2d 760 [21 making an arrest justified without could be officers independent to they required obtain were warrant incriminating supplied facts in corroboration evidence (Willson Superior Court, v. informer. their untested Amos, 36]; People v. 291, 294 P.2d Cal. Cal.2d [294 Cal.Rptr. 451].) Such corroboration App.2d 506, 508 [5 gained by knowledge to consist of claimed car they alight from the described observed defendant when by Renteria, prepare apartment, and to enter the his state merely But facts establish that he resided therein. these ment that particular apartment person drove the who resided bit automobile. This of corroborated fact does report illegal bolster untested informer’s little to any insignificant activity, and is as far as incrimina almost additionally is concerned. And the ascertained fact of tion record, significant, while not narcotics more does defendant’s knowledge sufficiently prob officers’ to bolster the constitute slight only tendency has at able cause. Such evidence hest presently engaged that defendant was establish (People Reeves, conduct. 1, v. [38 393].) 391 P.2d recently We have held the Peeves case when officers person anonymous that a advised informer named were was in address, possession given at a further of narcotics knowledge such had a of the officers that narcotics justify not arrest reason record did for the that “it was fact, corroboration of the essential as to whether [the violating (People Reeves, now the law.” defendant was] supra, 268, 274.) 61 Cal.2d distinguish cannot the Peeves and the We instant case respect cause, any going probable material the issue of *4 point greater immaterial exist and what differences do each, in In in Peeves than the instant case. cause officerswere violation, of a claimed narcotic the informed informer the claimed untested, address at took violation case the who given, and in the instant place was whereas the car which he drove there was described resided Additionally actually Beeves. made known in his name was only independently that in each case ascertained the officers although violator, a narcotic suspect record as cosuspeet further that a the officers ascertained Beeves prior record a narcotic informer also had a named lacking Beeves, as we probable cause was violator.1 If lacking in instant was, manifestly it also case. held it is in Beeves the officers were further distinction in the instant ease given anonymous whereas information from a known informant their information came their People. To hold that informa custody, not aid the does to establish reason by Renteria was sufficient furnished tion to accord to a nonreliable “would be effect able cause greater degree toils of the law informant who reliability attributed to such an informant who is than is ’’ Amos, supra, (People v. 181 Cal. not thus encumbered. 509.) App.2d 506, foregoing apparent it is the evi view result of an search and seizure obtained was the dence (U.S. guarantees Const., 4th of constitutional violation 19), Const., I, art. and that on Amends.; Cal. 14th prejudicial (Cal. Const., error admission was record its instant judgment Accordingly, §4%). reversed. VI, art. Tobriner, J., and Peters, J., Dooling, J.,*
Traynor, J.,C. concurred. SCHAUER, J.,* Dissenting. The circumstancesdelineated reporter’s (which transcripts epito- in the and clerk’s are majority ample opinion) my in the support
mized are view finding probable trial court’s cause the defendant’s ensuing and the arrest search and seizure contraband. conflicting The resolution of testimonies inferences was essentially for trial court and I do not understand that People (1964) Reeves v. [38 modify P.2d is intended to that fundamental distinction 393] appellate jurisdiction; between trial and it remains our justified information which Additional would have the search in illegally obtained, Meeves was held to have heen thus not entitled to and the officers were rely thereupon. (People Reeves, supra, 61 Cal. 268, 274.) 2d Supreme sitting assign *Retired Associate Justice Court ment the Chairman of the Judicial Council.
181 indulge every in duty presumption to reasonable favor of sustaining (in trial court. We do contrast to the Beeves) in case a situation have this mere uncorroborated telephoned from un- anonymous, unknown and statement contrary, substantially all of the inform- informer; seen to the strongly (1) appear- corroborated his ant’s statements were position apprehended deputy ance, condition and when light expert of sheriffs, interpreted their knowl- all edge, (2) by and the acts and of the defendant statements (as very after) Furthermore the before well as his arrest. gives type of them a substance the informant’s statements of corroborative sanction. Among appears that this other relevant facts defendant already signifi all under in a at times concerned was “arrest” taking custody a cant sense. means into or Arrest placing rights may personal him as his restraint. Insofar civil legal custody be involved defendant at the question. He had time of the events theretofore been prior arrest cul for such had offense; arrested a narcotics of minated and violation section conviction sentence Safety Code, felony, a and 11500 of the Health Upon serving parole. conviction part a of that sentence on felony prison for a term of the and sentence to the state less (Pen. rights suspended. Code, 2600.) life his than civil were § legal custody parole on shall under the of “Prisoners remain subject any at time to be taken department shall be ’’ (Pen. Code, 3056.) prison. back within the inclosure § prisoner parole contemplation of law still A convicted is rights parole as the prisoner, possesses only civil a authority such 3054.) may granted. (See Code, “The Pen. have § prisoners is from that only difference in his status prison walls, al permitted he is to remain outside [People v. custody. In the Denne case though he is still (297 Cal.App.2d (1956) [9b] Denne [9a]-510 place residence 451) court further held P.2d ] prison officials may be and searched parolee entered of or pris of a as the search parole in the same manner Cal.App.2d (People (1957) 154 cell. ...” Contreras oner’s 321, 7; Cal.Const., X, art. also ; P.2d see 916] [3] [315 Ferguson 663, 670 (1961) In re [2] [12 suggestion record that in the 417].) There no 753, 361 P.2d right to authority granted this defendant search or in heroin possess deal or be from immune . premises for that narcotic quoted holding of the (Contreras) The soundness becomes
particularly apparent potentiality if we consider the of its application parolees (or outpatients) narcotic parolee so-called any when such been has accorded the benefits of the program. enlightened Rehabilitation California Center That recognizes—and project properly so should we—the notorious persons tendency of revert to their addiction, such former duty corresponding program and the tinuing to furnish con- implemented vigorously supervision type of a craving mind of long the clever addict cannot even Legislature pro- or often circumvent. To this end the has persons outpatient in supervision vided “The rules for status shall include *6 person be to of the but not limited close after periodic facility, from surprise release the testing and use, counseling narcotic and inpatient return to status at the California Rehabilitation Center or its branches at the dis- authority, reports cretion of the if from agents the of the Department of or Corrections including information reports law as to the conduct of the enforcement officers authority person, the concludes it that is for the best interests person society and that this be done. Stats. [Added ” (Italics 1706, added.) (Pen. eh. Code, 6517.) 11.] § trial the at the ease bench it stipulated was that Deputy “an expert Avila was Sheriff the use of narcotics deputy and addiction.” The testified that he had a con- informer, Renteria; with the one versation that the latter evening on gone “stated the of November 9 he had to an apartment apartment Lynalan Street, gone on and that had he into this purchased capsules and two of heroin. He stated person attempted inject that lived at that location had informant, him, with on narcotics either two or three occasions, person that had who sold him these narcotics had been unable to administer narcotics and that he then him- injected syringe self took the and the heroin himself. quite heroin been “He stated the must have strong, because jolt, got over he than he an received more narcotics had he been helped to, and he had been to his automobile, accustomed jolt passed over of narcotics, had out from the where he and vehicle, his arrested that vehicle. was then person that him the “He sold narcotics in stated Whit- apartment Whittier, in an and that tier lived he did exactly was, but he would take know where the officers to was,” and show This, that location where it as officers faithfully did. appear, he will opinion (and, of that in his deputy The further testified stipulated personal and observation course, based on the influence at time “under that expertise) the informer ’ and observed opiate ’; he such informer that examined of some injection wounds”; brother officer that he “narcotic in- Lynalan Street “where informer to 8601 took the particular apartment stated this pointed out formant injected had and where he been apartment was where obviously were statements purchased the narcotics.” These against tended to incriminate his interest and admissions (as related further stated informant informer. The apartment Avila) lived at Deputy “the who believe, primer spots with Plymouth, I driving a black 1937 ’’ it. jail and the returned was then informant apartment. A few hours later the identified staked out near the officersobserved the alight from a defendant vehicle which Plymouth “perfectly” fitting appeared to be a black given by informant; description theretofore apartment up door of the identified then to the walked manifestly key of defendant the lock. acts inserted a These augmented and corroborated the informer’s with, fitted in statements, prima facie demonstrated the defend- domiciliary premises. control of the ant’s approached The officersthen the defendant and the follow- ing place took related events OfficerAvila: “I asked the was. At I my- defendant what his name self, that time identified my badge, I him showed identification and I him asked name stated his Gallegos. what his I was. He name was Ismael *7 him if lived at that location. asked he He stated he . . . did. I him if had asked he been arrested narcotic violations had, past, and that he he stated was at that time current parole placed for narcotic violation. At that I time him ’’ under arrest. specifically It was further testified “We [the officers] key ap- waited until the was inserted into the lock before we ” “By proached him and time . . . our conver- [defendant] complete, opened. the door had been sation was ...” reviewing standpoint, I From a court’s as understand our duty, appears nigh indisputable by it well us that the defend- by informer; person- ant described that he ally possession premises; the described had those premises and the defendant and automobile which he real evidence which in- constituted corroborated the arrived 184 particulars. former’s statements in all of those The further by (an against statement the informer personal admission bearing penal interest of a sanction, fact type of ad- require mission does not further substantiation to make (People Spriggs (1964) admissible 868, [la], [3-lb], Cal.Rptr. 841, 377])) 389 P.2d that he [4] [36 unlawfully procured injected had heroin on the identified premises was corroborated the fact that the informer was apprehended vicinity immediate his car under the just any influence of a narcotic—not narcotic “opiate” but an Certainly
which would include heroin. the search of defend- premises voluntarily opened ant’s and had after he had the door thereto admissible ises searched his informer’s ion was incident to his own cedure was the officerswould have been derelict in was, spelled [3] not, observations) -866 in the circumstances then admitted that he was on against statements, out course, premises. [5] [40 no way both the defendant and the informant. made the arrest of the us subject clearly obnoxious to the rules The contraband People defendant’s lawful seizure v. Cruz parole 395 P.2d arrest. The officers’ known to them and, statements, (1964) found in those as a parole on the facts found, their recently 889], narcotics 61 Cal.2d duty violator and (from and their my opin- reviewed if prem- felon, they pro- 861, The fact that the officers who made the search in the case parole at quite bench were not officerswould seem to be unim- portant. acting ample officershad reason to believe that using dealing defendant was or narcotics and he himself, entry search, before the or volunteered the informa- parole tion that he was on as a narcotics violator. It is difficult any for me to conceive of evidence which could more convin- cingly all corroborate essential elements of the basic informa- deputy tion theretofore furnished to the sheriff the in- showing former. On this factual I view the acts of the officers constituting intelligent and commendable law enforcement. They one; contrary harmed no their efficientaction was protective parolee and beneficial to the addict himself, to the public, particularly pitiable people to the “sick” would violator otherwise have served with the illicit drug. case, it, exemplifies This as I view very type alert, expeditious
intelligent, law enforcement which I should equally like to see this court be support. alert to In these circumstances neither the Cahan any nor *8 be extended to illicit cited cases should immunize the parole. narcotics felon on dealings the admitted judgment. I affirm would McComb, J., concurred. In Bank. Dec. A. No. 27516. 1964.]
[L. Newspaper CALL as In re Establishment NORWALK WHITEHEAD-DONOVAN Circulation. General Respondent, CORPORATION, v. HER- Petitioner Ap- COMPANY, Contestant ALD PUBLISHING pellant.