*1 Dist., Aug. 19, Two. No. 10143. Second Div. 1965.] [Crim. EVANS Respondent, v. JAMES PEOPLE, Plaintiff and THE SHERIDAN, Defendant *2 pro. Sheridan, James Evans in per., and James Fitz- S. patrick, appointment by under the District Court of Appeal, for Defendant and Lynch, Attorney Thomas C. General, James, William E. Attorney George
Assistant
General, and
Roth, Deputy
J.
At-
torney General, for
Respondent.
Plaintiff and
FLEMING, J.
jury
In
a non
trial Sheridan was convicted
possession
of
(Health
unlawful
of heroin
Code,
& Saf.
11500).
prior
A
conviction for the same
§
offensewas
finding
support
but no
charge.
made in
of this
Sergeants
At 3 :30 in
Flynn
the afternoon
Walker and
of
the
Angeles
narcotics division of
Department
the Los
Police
past
Jay
drove
Hill,
Sheridan and one
both known narcotic
users,
parked
seated
ear at a
Hill,
in
street intersection.
the
recognized
driver,
officers,
the
reversed his
and
car,
drove off
opposite
high
in
speed.
the
direction at
rate of
The two
gave chase,
they caught up
officers
and as
with the auto
Sergeant Walker saw Sheridan turn and extend his arm to a
girl
daughter.
seat,
little
in the back
his
why
Hill
fleeing,
replied
The officersasked
he was
and Hill
police.
he didn’t
to
want
be shaken down
the
The officers
permission to
Hill
obtained
search
and Sheridan and the ve-
Sergeant
searching,
hicle. While
Walker noticed a red bal-
fragment sticking
girl’s
loon
right
out of the inner side of the
bobby sock).
(a
When
sock white
he reached
and
down
girl’s sock,
the
said,
removed the balloon from
Sheridan
just
gave
just
you,
I
it to her
before
mine,
“That’s
as we
coming
put
to
her
you
and told her
it
sock.”
saw
Inside
fragment
containing
were three
the balloon
smaller balloons
grams
of
all 1.5
heroin.
Building
p.m.
about 5
Sheri-
Administration
At the Police
bought
Flynn that he had
Sergeants
and
told
Walker
dan
days
arrest,
before the
he
used
spoonful of heroin a few
get
going
to
balloons, and was
to sell the three
but three
all
money back.
his
as a
contends that the heroin was obtained
result
Sheridan
illegal
seizure,
and also
he was not
search
of
silent,
counsel and to remain
as out
advised of
Cal.Rptr. 169,
People Dorado,
suspects or call on them Shelton, tin, 45 Cal.2d P.2d Sher company of user narcotics the idan was a known police, and had tried to avoid the user, known he had another (See People v. gestures seat. furtive toward back made cir Blodgett, Under such investigate proper officers to it was for the cumstances investigation suspects. part of this As question the suspects, ac permission and, sought search officers cording permission testimony Sergeant Walker, to the *3 granted. Sheridan conced voluntarily cross-examination On got permission to he search remember whether “I don’t ed: permission to search me and had or not. I know he the car searching testimony a officer the of Hill. ...” Since Mr. provides finding support a of consent to evidence substantial Cal.Rptr. Sullivan, Cal.App.2d 404, 409 (People 214 v. [29 Cal.App.2d 248, 255 Cal. Chavez, People v. 208 [24 defendant was search of that the Rptr. 895]), we conclude 852].) Michael, (People 45 751 v. Cal.2d [290 lawful. Hill the officers searching and defendant process of In the daugh sight sticking out of the plain balloon observed the Spicer, People 163 Cal. v. As said ter’s sock. that has been said 917], it “While App.2d [329 generally sight, it is searching of is a function ordinarily open is to view looking that which is at the mere that held 172, Cal.App.2d (People Quinn, 194 v. ...” not a ‘search’. 137, 152 Terry, 62 People Cal.2d Cal.Rptr. 814]; v. 175 [14 seeing the bal On 605, 390 P.2d Cal.Rptr. [37 and had officers reasonable daughter’s sock, in the loon being felony committed. was a to believe probable cause 348 P.2d Cal.Rptr. 14, 407 Ingle, 53 Cal.2d [2 v. (People 670 At that time the officers knew or infer could the fol
lowing (1) : Hill and Sheridan (cf. were narcotics users People Taylor, Cal.App.2d 46, Cal.Rptr. 176 86], v. 51 [1 past suspect determining probable character of is a factor in (2) high speed Hill had at cause); driven off to avoid con gestures ; (3) frontation Sheridan had made furtive in the (People Blodgett, of (4) direction the back seat supra); v. commonly packaged (See People heroin is balloons. v. Rodriquez, Cal.App.2d Cal.Rptr. 435]; People Harris, 681, Cal.Rptr. 833, 62 Cal.2d 401 P.2d probable felony 225].) Since cause to a being believe is com grounds is for an mitted sufficient arrest and search inci (People Ingle, Cal.Rptr. 14, dent thereto 577]), by heroin 348 P.2d we conclude the was obtained of a valid and seizure. means search Right Right to to (2) Counsel and Remain Silent Dorado, page at stage investigatory 169, 398 P.2d held that “when the 361] accusatory one, is, begun it to has become that when has particular suspect on a been suspect, focus has taken into police custody, police process have carried out a of and interrogations incriminating eliciting lends to that itself ’’ suspect right of then the must be advised his to statements and silent. of his to remain counsel present specific In the case the crime for which defendant was and convicted possession was unlawful of nar- proof cotics, and that complete of crime was at the of time arrest, by only discovery not of by his the narcotic itself but ownership—which defendant’s admission of amounted to complete every of of Approx- element the crime. imately an hour half after his arrest defendant was questioned police station, at the undoubtedly part aof investigation to further trace the origin. narcotics their objective purpose police interrogating of the defend- appears the station ant at have been a commendable desire up completed against to follow their by case defendant un- covering, possible, supply. if source At that de- time possession crime, narcotics, fendant’s solved, been investigatorial interrogation, no further or accusatorial, required prove However, any crime. statements *4 got to how and where he defendant as the narcotics would necessarily produce acknowledgment a further of his un- possession of narcotics, which lawful would substance a We second confession. assume the amount use in evi-
671 advising de- obtained without confession of the second deuce improper. (People v. to counsel was of his fendant 361]; Cal.Rptr. P.2d 169, 338 398 Dorado, 62 Cal.2d [42 Cal.Rptr. 201, 400 People Stewart, 571, 62 Cal.2d 580 v. [43 P.2d improper of a con admission evidence
Ordinarily, automatically of a be requires reversal conviction fession presumed prejudicial. However, such effect is to be cause its logically follow when a later confession a result does not duplicates lawfully-obtained earlier cov merely a confession ering of the crime with which defendant has all elements ample a in which other evidence is case been support apart any (People from confession. v. a conviction Cal.App.2d 480, Cal.Rptr. 556]; Ford, 494-496 234 [44 Cal.Rptr. 378, 497, 384 People Parham, 60 Cal.2d 385 v. [33 Garner, 135, 144 People 57 Cal.2d 1001]; P.2d v. Cal. [18 People 680]; Moya, 819, Rptr. 40, P.2d v. Cal.2d Cal.Rptr. 112]; Atchley, 360, 350 P.2d 53 Cal.2d [3 Bayer, States v. 764]; United 160, 170-171 [346 1394, S.Ct. 91 L.Ed. Under U.S. illegal following a second confession circumstances some may require reversal, where, here, but legal substantially identical in incrim were the later statements inating statements and where the effect with the earlier evi experienced judge by rather than was heard dence jury, conclude the error the admission evidence did we miscarriage justice, a different in a not result probable. (Cal. Const., VI, 4½; art. is not on retrial § result People Watson, 818, 834-837 People Modesto, 417, 460-464 concurring 753], Peters, J., dissenting.) 398 P.2d judgment is affirmed. Herndon, J., concurred.
ROTH, P. J.I dissent. solely requires I re-
I because believe Dorado dissent versal.
Concurrently arrest, appellant spontaneously con- with his majority recite, when As the the balloon was fessed the crime. girl’s sock, appellant stated: from the little removed just just gave mine, you, I it to her before as we “That’s put her coming her it in sock.” you and told saw *5 investigatory period passed had therefore and the ac- cusatory stage begun. had One and one-half hours after the arrest and the confession recited, appellant again interrogated police above was at the not station. He was advised of his to counsel or his right to waiver, remain silent and there was no effective or pursuant interroga- otherwise, occasion, of either. this On tion, appellant bought spoon stated "... that he had days heroin a few before the arrest. That he has used all but going the three That he was balloons. sell three bal- ’’ get money loons and back. my opinion confession, previously expressed This second Cal.App.2d Ford, 556], clearly Dorado, within and should not have been intro- duced in any or not the second evidence. Whether (the jury) effect on the court ease was tried without a Dorado, I understand is immaterial. I would therefore re- judgment. verse hearing
Appellant’s petition Supreme for Court was denied October 1965. Dist., No. 10424. Second Div. Aug. 19, 1965.]
[Crim. Three. PEOPLE, THE Plaintiff and Respondent, v. FRANK PAULEY, JOSEPH Defendant