People v. Smith

California Court of Appeal May 10, 1956 No. Crim. 5579Published

Before: Ashburn

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Holding. The court held that the trial judge's finding of voluntary consent to a search is binding on appeal when supported by substantial evidence, and that an officer has reasonable cause to arrest and search a defendant when the defendant admits to using narcotics and exhibits fresh needle marks.

Issues

Whether the defendant voluntarily consented to the search of his person.
Whether the officer had reasonable cause to arrest and search the defendant without a warrant.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The question of whether a defendant has consented to a search is one of fact to be answered by the trial judge.”

“This statement, coupled with the fresh needle marks, afforded sufficient ground for belief that defendant had been in possession of narcotics recently and thus had committed a felony”

“The trial judge impliedly found that the officer had reasonable cause for arrest and hence had good cause for search of the person.”

ASHBURN, J.

Convicted of possession of heroin in violation of section 11500, Health and Safety Code, defendant appeals from the judgment and an order denying motion for new trial. It was charged and proved that he had been convicted previously of violating the same code section and he was sentenced to state prison for the term prescribed by law. (Health & Saf. Code, § 11712.)

[401]

In support of the appeal counsel for appellant urges but one point, unlawful search and seizure.

On the morning of April 15, 1955, defendant was riding with one Earnest Derry who was driving his own automobile. At the intersection of Naomi and Adams Streets, in Los Angeles, the driver violated the Vehicle Code by failing to yield the right of way to another car; this was witnessed by Police Officers Hanks and DiSalvo; they followed the Derry car until it stopped in front of defendant’s home near Washington and Naomi Streets. Officer Hanks testified that he did not know either of the men in the car before that morning. When the Derry car stopped, Officer Hanks went to the driver’s side of the car to talk with him about the traffic violation. DiSalvo went to defendant, asked his name and where he lived. Receiving this information he wrote it on a card. So far there was no violation of any right of defendant. Interviewing a prospective witness was a normal procedure for the officer. (See

People

Michael,

45 Cal.2d 751, 754 [290 P.2d 852].) When Hanks started to talk to Derry he noticed some old hypodermic marks on his arms, “old needle punctures.” He identified them as such on the basis of long experience and was told by Derry that “he was a user, but was not using at the present time”; the officer believed this. Reasoning that “if we had one person who was a user, I wanted to find out whether Mr. Smith was or was not a user,” he approached defendant, who was on the sidewalk, and asked him if he was using narcotics. Defendant said that he was. Hanks asked him to roll up his sleeve and show his marks; this he did voluntarily, thereby revealing about eight fresh needle marks. The officer decided that defendant was using narcotics and placed him under arrest, searched him and found in the watch pocket of his trousers a paper containing heroin. The officer had no warrant of any kind and the heroin thus found is the crux of this appeal.

People v. Smith

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ASHBURN, J.

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