LORENZO ROBISON, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.
S. F. No. 19798
In Bank.
Oct. 4, 1957.
186-189
Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, and Victor Griffith, Deputy Attorney General, for Respondents.
The record at the preliminary hearing disclosed that defendant was charged with violating
Officer Rinken testified that on January 17, 1957, he went to 2945A Bush Street, San Francisco, where he and other officers arrested John Hall for violation of
After Hall was arrested, defendant came to the apartment, knocked on the door, and was admitted by one of the officers. Officer Rinken asked him if he had anything on him. Defendant was thereupon searched by the officer, and in his left front jacket pocket there was found a paper-wrapped tablet that contained dolophine. This tablet was received in evidence without objection.
It is conceded that the officer did not have a warrant for the arrest of defendant or a search warrant permitting him to search defendant.
Questions: First. Did the committing magistrate properly consider the evidence that defendant had in his possession a narcotic at the time he was arrested, in view of the fact that the arresting officer did not have either (a) a warrant for defendant‘s arrest or (b) a warrant authorizing him to search defendant?
This question must be answered in the affirmative, and is governed by this rule: By failing to object at the preliminary hearing to the admission of the evidence that he had a narcotic in his possession, defendant waived his right to claim that the evidence was improperly received because it had been illegally obtained contrary to the rule announced in People v. Cahan, 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513]. (People v. Kitchens, 46 Cal.2d 260, 262 [1] [294 P.2d 17]; People v. Kelsey, 140 Cal. App.2d 722, 723 [1] [295 P.2d 462]; People v. Williams, 148 Cal.App.2d 525, 532 [2] [307 P.2d 48]; see cases cited 23 C.J.S. (1940), Criminal Law, § 1078c, p. 516;
As set forth above, the record discloses that when the dolophine tablet was offered and received in evidence, no objection was made by defendant. Therefore, the committing magistrate properly considered it in determining whether there was sufficient cause to believe that defendant had committed a public offense.
Second. Did the evidence received before the committing magistrate at the preliminary examination give him “sufficient cause” to believe that defendant had committed a public offense, thus requiring the magistrate, under
Yes. The evidence before a committing magistrate at a preliminary examination need not be such as would require a conviction. The “sufficient cause” required by
Applying the foregoing rules to the facts set forth above, it is evident that the offered evidence taken at the preliminary hearing that defendant was present at a place where narcotics had been sold and that he had in his possession a narcotic when arrested would cause a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion that defendant was guilty of violating
The alternative writ is discharged and the petition for a writ of prohibition is denied.
Gibson, C. J., Shenk, J., Traynor, J., Schauer, J., and Spence, J., concurred.
There is no question in my mind whatsoever that on the facts disclosed by the record, the arrest and search of petitioner was illegal and unjustified under all of the authorities since People v. Cahan, 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R. 2d 513], and People v. Berger, 44 Cal.2d 459 [282 P.2d 509], and if appropriate objection is made to the introduction of the evidence obtained as a result of such unlawful arrest and search at the trial of the case, it should be sustained.