Opinion
Rehearing Denied Nov. 19, 1963.
William J. Gintjee, San Francisco, (Court appointed), for appellants.
Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Keith E. Pugh, Jr., Deputy Attys. Gen., for respondent.
TAYLOR, Justice.
Defendants Reeves and Tuttle appeal from a judgment entered on a guilty verdict 11530 of the Health and Safety Code (possession of marijuana). They also appeal of the marijuana). They also appeal from the orders denying motions for a new trial. The principal question is one of illegal search and seizure.
The material facts are as follows: Inspector Martin of the Narcotics Bureau of the San Francisco Police Department testified that about 9:00 a. m. on September 13, 1961, he received an anonymous telephone call at the Hall of Justice. An unknown female voice said that two 'narcotics losers' were in possession of marijuana. She identified the two as Donald Reeves, who lived at the King George Hotel, and Ken McDonald, who operated an automobile agency on Van Ness Avenue. No address or other information was given as to McDonald. No record was made of the call. In the course of a prior narcotics investigation, Martin had questioned Reeves and ascertained that the latter had been convicted of sumuggling narcotics in Texas. Martin had no information about McDonald but after a brief record search, he ascertained that one Ken McDonald had been in a federal prison for a narcotics violation.
Martin was familiar with a McDonald auto agency on Van Ness Avenue near Turk and Immediately proceeded there with Inspectors Fogarty and Lawler. The officers found a marijuana cigarette in McDonald's possession. McDonald indicated that he had acquired the cigarette, along with two others, from Donald Reeves at the King George Hotel the evening before. He also stated that he was the McDonald with a prior narcotics conviction in a federal court. McDonald was never prosecuted. When called as a witness by the appellants, McDonald answered a few preliminary questions and on the advice of his independent counsel, refused to answer questions relating to the discovery of the narcotics in his possession by the police The three inspectors returned to the Hall of Justice and they then proceeded to the King George Hotel at 334 Mason Street about 11:45 a. m. A conversation with the hotel manager revealed that a Donald Reeves was registered in room 302 and that he was in his room. Inspector Martin knew that Reeves was engaged in litigation with his employer, a railroad. At the request of the officers, the hotel manager made a telephone call to Reeves and told him that a letter from the railroad commission was downstairs. Reeves replied that he would be down to pick up the letter as soon as he was dressed. Martin listened to the telephone conversation, while Fogarty and Lawler proceeded to the third floor.
Martin then went upstairs. The officers placed themselves outside room 302, with Lawler and Fogarty about 10 feet on each side of the door and Martin about 2 feet directly in front of the door. As Reeves opened the door, Martin looked past him into to the shall room and about 11 feet away saw two packages of cigarette papers and what appeared to him to be a partially consumed marijuana cigarette or 'roach' on a small bedside table. Martin testified that he and the other officers entered the room solely because he saw the 'roach.' Martin arrested Reeves and then asked Reeves whether he had any more 'stuff' in the room. Reeves pointed to a desk. Martin opened the desk drawer and found a box containing more 'roaches,' a brown paper bag containing bulk marijuana and other items. In the closet, Fogarty discovered a blue canvas travel bag containing marijuana.
Meanwhile, Lawler awakened the figure sleeping in the double bed, the appellant Tuttle. Tuttle sat on the edge of the bed in his underwear. His clothes were on a chair next to the bed. Martin asked Tuttle if the clothes were his and began to hand them to him. As Martin picked up the shirt and trousers, a brown paper bag similar to the bag of marijuana found in the desk, fell from the right front pocket of the trousers. When questioned about the paper bag, Tuttle remained silent. Martin opened it and discovered what appeared to be bulk marijuana.
Appellant Reeves testified that on the date in question, he was awakened by a telephone call from the hotel manager who told him to come down and sign for a registered letter. He got dressed and as he opened the door, the police officers barged in, arrested him and began to search the room. He admitted having marijuana in the room but denied that any of it was visible or that there was a 'roach' on the bedside table. He had brought Tuttle up to his room the night before because Tuttle had been in a fight and was intoxicated. He undressed Tuttle and put him to bed and emptied the pockets of his trousers before laying them on the chair. The packet of marijuana was on the arm of the chair before he put Tuttle's clothes there.
Tuttle testified that the night before the arrest, he was drunk. He had met Reeves and later passed out in a restaurant. He remembers nothing after that until the police officers awakened him in Reeves' room. He denied knowledge or possession of the paper bag.
The major contention on appeal is that the marijuana introduced in evidence against each of the defendants was obtained by an illegal search and seizure. The matter was timely raised by motions under section 995 of the Penal Code and the evidence admitted over objection after a hearing outside the presence of the jury as is the procedure in this state (People v. Haven, 59 A.C. 738, 740, 31 Cal.Rptr. 47, 381 P.2d 927). Appellants also contend that the trial court erred in sustaining the privilege against self-incrimination as to the witness McDonald and that the district attorney committed prejudicial misconduct during his cross-examination of Reeves.
Appellants contend that the officers' entry into the hotel room was unlawful and Appellants have made a prima facie case that the search and seizure were illegal when they established that they were made without a warrant. The burden then rested on the prosecution to show proper justification (People v. Haven, supra) for a lawful arrest, as the evidence at issue, in order to be admissible, must be the product of a search incident to a lawful arrest.
At the time of its ruling on the objections, the trial court specifically relied on certain decisions of this court, indicating that Mapp v. Ohio, 367 U.S. 643, 655-656, 81 S.Ct. 1684, 6 L.Ed.2d 108 did not require California to follow certain federal cases holding that an arrest and search and seizure based upon stealth or a ruse was a violation of the Fourth Amendment of the United States Constitution. The trial court did not have the benefit of the decisions on the matter of unlawful search and seizure recently handed down by the Supreme Court of the United States (Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, and our Supreme Court (People v. Haven, supra). The instant case must be viewed in the light of these recent rulings.
The ground of the Mapp opinion is that the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, is an essential part of the Fourth Amendment and as such is enforceable against the states under the due process clause in the Fourteenth Amendment.
In Ker v. State of California, supra, the court said 374 U.S. at page 33, 83 S.Ct. at page 1630, 10 L.Ed.2d 726: 'We reiterate that the reasonableness of a search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the 'fundamental criteria' laid down by the Fourth Amendment and in opinions of this Court applying that Amendment. Findings of reasonableness, of course, are respected only insofar as consistent with federal constitutional guarantees' and held that the Fourth Amendment standards of reasonableness for search and seizure apply to the states.
The prosecution did not establish that the officers had probable cause to arrest the appellant Reeves when they entered the hotel room. No probable cause can be established on the basis of the information obtained from McDonald because he was not a previously known or reliable informer. We need not discuss the matter of probable cause in great detail however because we have concluded that the unlawful method of entry requires a reversal.
In the proceedings below, the officers testified that their arrest of Reeves was based on People's Exhibit 5, the half-smoked cigarette which the officers saw after Reeves opened the door. We note that the People's expert witness, the police chemist, was not able to identify People's Exhibit 5 as marijuana but only to testify that it had the appearance thereof. In the instant case, it is freely conceded that the appellant Reeves was induced to open the door by the ruse of the telephone call made by the manager at the request of the police who knew about Reeves' litigation. It is also uncontroverted that Martin stood immediately in front of the door and did not knock or otherwise make his presence known to the occupants. Nor is there any contention that the officers reasonably believed that someone inside the hotel room was in distress and that they entered for this purpose. The uncontroverted evidence established that they entered because of what they saw after Reeves had opened the door.
Thus, we are compelled to the conclusion that the arrest of Reeves, even assuming arguendo that it had been properly based on probable cause, was vitiated by the method of entry. A long line of cases dating back to Gouled v. United States, 255 U.S. 298, 305-306, 41 S.Ct. 261,
Johnstown, Pa. v. United States, 3 Cir., United States v. Mitchneck, D.C., United States v. Reckis, D.C., People v. Roberts, People v. Neal, People v. Albert,In Ker v. State of California, supra, the concurring opinion stated 374 U.S. at page 47, 83 S.Ct. at page 1636, 10 L.Ed.2d 726: 'Even if probable cause exists for the arrest of a person within, the Fourth Amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except (1) where the persons within already know of the officers' authority and purpose or (2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or (3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door) are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted.' It is very clear that none of the three exceptions outlined above were present here.
The Attorney General further argues that the search of the desk in which the marijuana was found was valid as to the appellant Reeves and that the search as to the clothing of the appellant Tuttle was valid because consent was given. However, our Supreme Court has recently disapproved this view (People v. Haven, supra, 59 A.C. at 743, 31 Cal.Rptr. at 50, 381 P.2d at 930). The court said 59 A.C. at pages 743, and 744, 31 Cal.Rptr. at page 50 and, 381 P.2d at page 930: 'A search or seizure made pursuant to a valid consent before any illegal police conduct occurs is obviously not a product of illegal conduct. A search and seizure made pursuant to consent secured immediately following an illegal entry or arrest, however, is inextricably bound up with the illegal conduct and cannot be segregated therefrom.' In the instant case, the officers did not obtain consent from the appellant Reeves to search the desk until after their unlawful entry and until after they had informed him that he was under arrest. The search of the clothing of the appellant Tuttle also did not occur until after the illegal entry and the arrest of Tuttle. Therefore, we must hold that the search and seizure were 'fruit of the poisonous tree' or so inextricably bound up with the illegal conduct that they cannot be segregated therefrom. The search and seizure growing out of the false entry was an invasion of the indefeasible As to the appellant Tuttle, the attorney General seeks to justify the arrest on the basis of his presence in the room. This also was the product of the unlawful entry and as to Tuttle, there were no circumstances more suspicious than the fact that he was sleeping in a bed in his underwear. The Attorney General argues that the fact that Tuttle was asleep in the bed, dressed only in this underwear, gives rise to the suspicion that he had more than superficial contact with the marijuana in the room. We do not agree. As we have indicated above, the search of Tuttle was also the product of the unlawful entry. Furthermore, it is well settled in this state that the fact that one is in the company of a person reasonably known to have committed a felony, standing alone, is not enough to justify a search of the person (People v. Miller, 176 Cal.App.2d 571, 1 Cal.Rptr. 656). The mere fact that Tuttle was on the premises where officers had reason to believe that there were narcotics would not justify either the arrest or search of Tuttle (People v. Ramirez, 185 Cal.App. 301, 8 Cal.Rptr. 184).
We turn briefly to the remaining arguments on appeal. First, as to the ruling sustaining the privilege against self-incrimination as to the witness, Ken McDonald. Appellants argue that the trial court failed to distinguish between the privilege as it applies to a defendant in a criminal case who need not testify at all, and to a witness in any proceeding who need not answer any question which will have a tendency to subject him to a criminal prosecution. The record reveals that the claim of privilege was made with regard to McDonald's conversations with the officers on September 13, 1961, when the officers found several marijuana cigarettes on his person. We think the court properly ruled on the privilege. McDonald's admission of the conversations with the officers on that day might furnish a link in a chain which could lead to his conviction. The court properly takes into consideration all of the circumstances of the case in determining whether there is a real danger that a direct answer to a question may incriminate (People v. Lawrence, 168 Cal.App.2d 510, 516, 336 P.2d 189). Nor is there any merit in the contention that the district attorney was guilty of prejudicial misconduct in persistently exceeding the scope of the direct examination during the cross-examination of appellant Reeves. The questions were well within the permissible scope of cross-examination (People v. Zerillo, 36 Cal.2d 222, 227-229, 223 P.2d 223; Pen.Code § 1323).
The judgment is reversed. The appeals from the denial of the motions for a new trial are dismissed as nonappealable orders.
SHOEMAKER, P.J., and AGEE, J., concur.