People v. Thymiakas

FOX, J.

By information, defendant was charged in one count with the possession of heroin, in violation of section 11500, Health and Safety Code. His motion to set aside the information on the ground that there was no reasonable or probable cause to believe he committed the offense charged was granted. (See Pen. Code, § 995.) The People appeal. We have concluded the decision of the trial court is correct.

At the preliminary hearing, Officer Rock, who was one of the arresting officers, testified that he and his partner were given information “around 11:00 P.M.” on February 17, 1955, that “defendant was a heavy user of heroin” and that “he kept a user’s supply in the amount of approximately one gram ... at his bedside in his apartment.” Defendant was identified as “Tony” or “Tony the Greek.” This information was given the officers by a person “on West 5th Street” in Los Angeles, just off of Hill Street, about three or four miles from where defendant resided. It does not appear that the officers had had previous dealings with the person who furnished the information, or that they were acquainted with him, knew his name or address, or anything about him. One of the officers who had been attached to the Narcotics Division for a little more than two years testified he had heard “Tony” or “Tony the Greek” mentioned as being a user and a peddler of narcotics.

With this background, the officers proceeded immediately to the address where defendant lived. They went to the manager of the hotel and procured a key to defendant’s room. Upon turning the key in the lock the door opened several inches and caught on a night-chain. When the chain stopped the door from opening, the officers banged on the door, stating they were police officers and demanding that defendant open the door. He responded “Wait just a minute.” Officer Rock testified he heard “footsteps approaching

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the door,” then they “seemed to be going away from the door,” at which time defendant called out again, “Wait just a minute,” in response to another demand from the officers that he open up. The officer then stated he would have to open the door or they were going to break it down. The door not being opened, the officers forced their way in. It was only a matter of a few seconds from the time the officers unlocked the door until they actually broke into defendant’s room. Neither of the officers had a search warrant or a warrant for defendant’s arrest.