People v. Chong Wing Louie

[168]

BRAZIL, J. pro tem.

*

The defendant was found guilty of possession of a preparation of yen shee, an opium derivative, in violation of section 11500 of the Health and Safety Code, by the court sitting without a jury, the same having been personally waived by the defendant.

He now appeals from the judgment of conviction and the order denying a new trial on the ground that the court was in error in overruling his objections to the admission of evidence; claiming it to have been obtained as the result of an unlawful search of his room. In the conclusion of his brief, appellant makes a mild claim that despite the officer’s testimony on the subject, he ought not to be believed because one can’t smell yen shee from a distance.

Sometime during the late evening of July 24, 1956, Officer Christiansen of the Narcotics Detail of the San Francisco Police Department, picked up an office memorandum about “a user of dope in room 42 at 66 Clay Street.” The complaint was anonymous, and that is about all the information the officer had when he and four others from the department set out for the rooming house on Clay Street. They had a key to the outside door of the building which had been obtained from the owner on a previous case involving the same premises. They had no search warrant for the room or building before obtaining the evidence, to the admission of which defendant has objected.

The officer testified that he had been with the narcotics detail about three years; that he had smelled opium being smoked approximately three or four dozen times; and that he had seen narcotic paraphernalia in hundreds of cases. As he approached room 42, the occupancy and control of which by the defendant is admitted, the witness testified, “I smelled the odor of opium emanating from room 42.” The door to the room was ajar about 6 inches, through which opening he saw syringes, burnt spoon, with needles, commonly used by addicts shooting narcotics intravenously. Thereupon, they entered the room, a small one about 5 feet by 8 feet, and found a packet of black substance in the top dresser drawer, which later turned out to contain 23 grams of yen shee.

While the defendant was not in the room when the officers entered, he had been seen by the witness just before that, in an adjacent room, a common kitchen, cooking rice on a gas stove. After entering the defendant’s room and finding the yen shee, the officers looked for him in the kitchen, but he