People v. Holguin

FOURT, J.

In an information defendant was charged with violation of section 11500 of the Health and Safety Code, a felony, in that on or about October 26, 1955, in the county of Los Angeles, she unlawfully had heroin in her possession. Trial by jury was waived. The People offered oral and physical evidence. The defendant presented no witnesses. The court found the defendant guilty as charged and sentenced her to a term of imprisonment in the California Institution for Women. This appeal is from the judgment.

A résumé of the facts is as follows: Before noon, on October 26, 1955, the officers of the Police Narcotics Division received information from one of their confidential informers that there was a girl peddling heroin by the capsule out of the Tip Top Café on South Main Street in Los Angeles. The informer said the girl was wearing a brown sweater and levis, that she had the appearance of a boy, and that they called her “Frankie.” About noon, on October 26, 1955, acting on the information, Officers McDermott and Pilkington proceeded to the café where they saw the defendant dressed in a brown sweater and levis, and otherwise fitting the description which they had received. They asked her if she was called Frankie, and she stated she was. She was placed under arrest, put in a police car and driven to the parking lot of the Police Administration Building. While at the parking lot, the police asked her to empty her pockets. She thereupon reached into her right pocket and produced a capsule wrapped in cellophane. The next day a chemist analyzed the capsule and found that it contained heroin.

Appellant contends that the arrest was unlawful and therefore, the search incident to the arrest was unlawful and unreasonable, and the evidence obtained therefrom should have been excluded. Appellant claims that since the People

[522]

introduced evidence tending to show the reasonableness of the search and seizure, the officers are precluded from relying on the presumption that they acted legally. It is true, as stated in

Badillo

v.

Superior Court,

46 Cal.2d 269, 272 [294 P.2d 23]: “. . . the defendant makes a prima facie case when he establishes that an arrest was made without a warrant . . ., and the burden then rests on the prosecution to show proper justification.” However, in the ease before us a reading of the record does not disclose that the officers made the arrest without a warrant. The question of whether the officers had a warrant was never asked, nor raised in the trial court. Appellant had ample opportunity to make the simple inquiry, but she apparently chose not to do so.