People v. Boyles

TRAYNOR, J.

— By information defendant was charged with one count of possessing heroin in violation of Health and Safety Code, section 11500, a felony. Her motion to set the information aside (see Pen. Code, § 995) was granted on the ground that all of the evidence of the crime other than admissions was obtained by an illegal search of her person in violation of her constitutional rights. The People appeal.

[654]

At about 10 a. m. on May 2, 1955, three officers of the Los Angeles Police Department obtained the key to a hotel room from the manager of the hotel and entered the room and waited. About 11 a. m. defendant knocked on the door or made some signal. The officers opened the door and one of them grabbed defendant’s hands and found two bindles of heroin in her right hand. One of the officers testified that he asked defendant “if she had any more stuff. She said no. That is all there was. I asked her how much was there and she said a gram and a half. I asked her where she got it and she said she scored it from a friend down on Second Street. I asked her what it cost her. She said $30.” He also testified that he believed a felony was being committed at the time of the arrest. The prosecuting attorney then asked what reason he had for his belief, and defendant objected on the ground that the answer would be hearsay and a conclusion of the witness. The prosecuting attorney stated that he had a right to show that the arrest was legal and that the search was incident to the arrest, but the court indicated that since the officer had made a positive statement as to his belief, any question as to its validity should come from cross-examination. On cross-examination the officer was asked, “You personally did not witness any activity of this defendant with regard to narcotics before the date of this arrest, did you?” He answered, “I did not.” No further questions with respect to the basis of his belief were asked. It does not appear from the record who was the regular occupant of the hotel room where the officers waited. They did not have a search warrant or a warrant for defendant’s arrest.

It should be noted at the outset that whether or not the officers were trespassers in the room where they waited for defendant is immaterial in this case. It does not appear that the room was searched, and even if it was, nothing that may have been found in the room was offered or introduced in evidence. It is apparent that the officers were waiting and watching for someone to enter the room. Since they had the cooperation of the manager of the hotel, however, any such person could have been apprehended just as well from some other vantage point nearby without committing any trespass, and thus their ability to arrest and search defendant was not dependent on their presence in the room. Under these circumstances, the trespass, if any, was entirely unrelated and collateral to the securing of the evidence to which defendant objects, and it could not therefore render