People v. Alaniz ( 1957 )

WOOD (Parker), J.

Defendant was charged with violation of section 11500 of the Health and Safety Code in that he unlawfully had heroin in his possession. He admitted allegations of the information that he had been convicted of two felonies (violations of said § 11500). In a jury trial, he was convicted. He appeals from the judgment and the order denying his motion for a new trial.

Appellant contends that there was no probable cause for the arrest, and that the subsequent search and seizure were unlawful.

Officer Smith testified that on January 20, 1956, about 7:55 p. m., he saw an automobile stop in front of 24102 Fries Avenue in Wilmington; at that time he and Officer DeLeon were in an automobile near that address, and he (Officer Smith) drove their automobile to the automobile which had stopped; Officer DeLeon got out of their automobile and went to the driver’s side of the other automobile; Officer Smith also got out of the automobile, which he had been driving, and went to the driver’s side of the other automobile, arriving there about 15 or 20 seconds after Officer DeLeon arrived there; defendant was in the driver’s seat of the other automobile; two boys, whose ages were 14 and 11 were also in the other automobile. Officer Smith testified further that he arrested the defendant; and that Officer DeLeon arrested the defendant.

After the above testimony had been given, counsel for defendant requested the court to hear evidence out of the presence of the jury with respect to probable cause for the arrest. Thereupon, out of the presence of the jury, Officer Smith testified that about 10 days before the arrest an informer (referred to herein as informer A) gave him information as to a location where narcotics were being distributed; the information included directions regarding streets to travel in order to get to the location—no address was given; he had known the informer more than a year, and information he had previously received from him had been reliable. He testified further that on January 19 another informer (referred to as informer B) stated that narcotics were being dispensed “from this location” (the same location given by informer A), that the car was described as a 2-door black Chevrolet which was “lowered in the back,” that the fellow was described as a Mexican with a mustache, and his name was Johnny; he (officer) had known the informer more than a year, and information which he had previously received from him had been reliable. He testified further than on January 20, about 6 p. m., another informer (referred to as C) called him by telephone and gave him “the block where the house was located and stated it was about in the center of the block”; the informer also said that two persons were involved and the name of one of them was Zacci, and the car was a 1950 black Chevrolet; he (officer) knew the informer, recognized his voice by telephone, and had previously received reliable information from him. He testified further than on January 20, about 6 :30 p. m., another informer (referred to as D) told him and Officer DeLeon that narcotics were being dispensed “from this place,” that he knew the exact house, and that the car involved was a black Chevrolet; he (officer) had known the informer more than a year.

Officer Smith testified further than on January 20, about 1 p. m., he went by the location, concerning which he had previously received information, and he saw a black Chevrolet in front of the house. He testified further that on January 20, just prior to the arrest, he saw a Chevrolet, which he had previously seen in front of the house, make a U-turn and park in front of the house; the man who was driving the Chevrolet fitted the description that had been given previously ; the officers went to the Chevrolet within a few seconds after it stopped; the man therein said that his name was Johnny; he (officer) turned his flashlight on the man’s arm and noticed that he had numerous scab formations over a vein, and some of them appeared to be fresh; in response to questions, the man said that he was not a user but he had been; he (officer) turned the flashlight into the car, through the open door, and observed a bindle on the floor board, which bindle appeared to be a bindle of heroin; the conversation with defendant might have taken 15 or 20 seconds; Officer Smith asked Officer DeLeon if he had defendant under arrest, and Officer DeLeon said “Yes,” and Officer Smith said, “If you haven’t he’s under arrest now.” He also testified that information given by the informers was confidential and that the public interest would suffer if he were to give the names of the informers.

Also, out of the presence of the jury, Officer DeLeon testified that on January 20, about 6:30 p. m., he had a conversation with informer D, whom he had known about three years; after that conversation he and that informer went to the vicinity of 24102 Fries Avenue, and the informer pointed out the house at that address as the place where he had purchased narcotics; he also pointed out a 1949 black Chevrolet automobile which was then in front of the house; the informer went to the house, stayed about 10 minutes, and upon returning stated that narcotics were in the automobile which was then in front of the house; he (officer) communicated said information to Officer Smith; after the arrest of defendant, Officer DeLeon (witness) searched the house, with the permission of Mrs. Jiminez, who lived in the house; he found a needle, spoon, dropper and wet cotton, which were wrapped together and were in a linen cabinet in the bathroom; the son of Mrs. Jiminez was known as Zacei.

Also, out of the presence of the jury, Mrs. Jiminez testified that she lived at 24102 Pries Avenue; her son Zaeci lived there also; on January 20, 1956, when there was a knock on the door, she told a girl to open the door; the person at the door said he was a police officer and he had to search her house; she told him that it was all right; defendant had been in her bathroom on that day.

The court ruled to the effect that there was probable cause for the arrest and search.

Thereupon, the trial proceeded in the presence of the jury. Officer Smith testified further, repeating the testimony he had given (out of the presence of the jury) regarding: the marks on defendant’s arm; the statement of defendant that he had been a user; and the bindle which was on the floor board. He testified further that it had been raining prior to and soon after the arrest; that he found two packages on the ground near the Chevrolet; those packages were dry.

Officer DeLeon testified that he participated in the arrest of defendant in front of 24102 Pries Avenue; he saw a small bindle on the floor of the Chevrolet, and he saw Officer Smith pick it up; he (witness) also saw two bindles in the street by the side of the Chevrolet, and he saw Officer Smith pick them up; he (witness) went into the house at said address and found the needle, spoon, dropper and cotton (Exhibit 3) in a linen cabinet in the bathroom; in response to questions, defendant said the “outfit” (Exhibit 3) was his, that he had put it in the house that morning (January 20), and he was using one and one-half “caps” of heroin a day.

The three bindles or packages contained heroin.

Mrs. Jiminez, called as a witness by defendant, testified that her son Seferino, who is known as Zaeci, lived at her house (24102 Pries Avenue) and he was there on said January 20; Juan or Johnny, the defendant, was at her house on January 20 and he went into the bathroom; he had taken Henry and Richard Medina, her grandchildren, for a ride. (They were in the Chevrolet when defendant was arrested.)

Concha Medina, called as a witness by defendant, testified that she is the mother of the boys Henry and Richard, and she is the daughter of Mrs. Jiminez ; on January 20 defendant had been at her house working on her automobile; about 7:20 p. m. of that day, defendant came to her house to take Henry to his grandmother Mrs. Jiminez, and to take Richard to his other grandmother.

Defendant testified that he owned the Chevrolet involved here; about 1:30 p. m. on the day of the arrest he drove a truck to Mrs. Jiminez’s house; he had left his Chevrolet there the night previously, and he had gone in the truck to his home; soon after he arrived at Mrs. Jiminez’s house, he and Zacci went in the Chevrolet to Concha Medina’s house, where he (defendant) repaired her automobile; he and Zacci left her place about 6 p. m. and returned to Mrs. Jiminez’s house, arriving there about 6 :15 p. m.; he (defendant) went into the bathroom at that house and washed oil off his hands; he was in the house about 15 minutes and during that time Zacci used the Chevrolet; when Zacci returned the Chevrolet, defendant drove it to Concha’s house, got the two boys, and drove back to the place in front of Mrs. Jiminez’s house where he was arrested; he did not know that a bindle was in the automobile or that the two packages were on the street; the first time he saw the bindles was when the officers called his attention to them; he did not know what was in the bindles; he told the officers that the bindles were not his; he did not take the spoon and “outfit” (Exhibit 3) into the house; he told Officer DeLeon that those things (Exhibit 3) were not his (defendant’s); during the evening there had been intermittent light showers or drizzles, but at the time of the arrest the street was dry; the bindles which the officers found on the street were dry, and the street was also dry; there were scars on his (defendant’s) arm which were caused by punctures when he used heroin years ago.

Officer DeLeon, who had testified that he participated in the arrest, was called as a witness by defendant and he was asked: ‘ ‘ Officer DeLeon, about how soon after the defendant stopped the car in front of Mrs. Jiminez’s place did you effect the arrest?” He answered: “I would say almost immediately.”

Zacci, called as a witness by defendant, testified that he did not use the Chevrolet about 6 :30 p. m on the day of the arrest, to go to the store.

Appellant contends, as above stated, that the arresting officers did not have probable cause for arresting him. He argues that the information given by the informers was not sufficient to constitute probable cause. In Trowbridge v. Superior Court, 144 Cal.App.2d 13 [300 P.2d 222], the arrest was made upon information furnished by an informer, whom the arresting officer knew and who had supplied the officer with reliable information on two or three occasions. It was held in that ease (p. 17) that the arrest was lawful. “A valid arrest may be made solely by reason of information communicated by a reliable informant.” People v. Montes, 146 Cal.App.2d 530, 532 [303 P.2d 1064]; People v. Penson, 148 Cal.App.2d 537, 539 [307 P.2d 24].) In People v. Boyles, 45 Cal.2d 652 [290 P.2d 535] at page 656, it was said that it is settled “that reasonable cause to justify an arrest may consist of information obtained from others and is not limited to evidence that would be admissible at the trial on the issue of guilt.” In the present case there were four informers, whom the arresting officers knew and who had previously supplied the officers with reliable information. The evidence was sufficient to show probable cause for the arrest. Also, the subsequent search of defendant and the seizure of the bindles were lawful.

Appellant also contends that the search of the house by Officer DeLeon was unlawful. The officers had information from the informers to the effect that narcotics were being distributed from the house. The officers had just arrested a person in front of the house and had found bindles which apparently contained heroin; and the person arrested appeared to fit the description of a person referred to, by one of the informers, as a person who dispensed narcotics from that location; and the person arrested appeared to be a user of narcotics. When the officer knocked on the door of the house, the door was opened. When the officer identified himself and said that he had to search the house, the lady who lived there told him that it was all right. The evidence was legally sufficient to prove that the search of the house was not unlawful.

Appellant contends further that the trial court abused its discretion in denying his motion that the witnesses, except the one testifying, be excluded from the courtroom. Such a motion is within the discretion of the trial court. (People v. Boyden, 116 Cal.App.2d 278, 283 [253 P.2d 773].) Apparently the motion pertained principally to the two police officers. When the motion was made, the deputy district attorney said that the two officers had testified at the preliminary hearing. It does not appear that there was an abuse of discretion.

Appellant also contends that he was denied due process of law because the trial court did not require the police officers to disclose the identity of the informers. Section 1881, subdivision 5, of the Code of Civil Procedure provides: “A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.” Officer Smith testified that the information given by the informers was confidential and the public interest would suffer if the names of the informers were disclosed. In People v. Gonzales, 141 Cal.App. 2d 604 [297 P.2d 50], it was held (pp. 607-608) that, under the circumstances therein, the court did not err in refusing to allow the defendant to cross-examine the police officers as to the name of their informant. It was said in that case at page 608: “The officer’s information must have come from a reliable source and the officer must act in good faith in testifying that he had received his information from a reliable person, and such good faith must pass the scrutiny of the trial judge. No abuse of discretion having been shown, the court’s ruling was correct.” In the present case, the court did not err in sustaining objections to questions as to the identity of the informers.

The judgment, and the order denying the motion for a new trial, are affirmed.