People v. Barnett

WOOD (Parker), J.

Margaret Jonnie Barnett and Donald C. Flannes were accused, in two counts, of violating section 11500 of the Health and Safety Code in that they unlawfully had in their possession heroin (Count I) and marihuana (Count II). In a non jury trial they were adjudged guilty as charged. Flannes appeals from the judgment and the order denying his motion for a new trial.

Appellant contends that the court erred in overruling his objection to the offer in evidence of Exhibits 1 and 2, the heroin and marihuana, and erred in denying his motion to suppress that evidence. His argument is that the evidence was obtained by unlawful search and seizure.

Officer Nichols, a deputy sheriff assigned to the narcotics detail, testified that on October 9, 1956, about 11 a. m., he received information from a confidential informant that the

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defendants were in possession of a large quantity of marihuana and heroin and they were about to leave apartment 208 at 147 South Normandie Avenue, Los Angeles, the afternoon of that day; he (witness) had received information from that informer on two prior occasions regarding the sale of narcotics ; those occasions were within a month preceding the arrest in the present case; after having received the information on the two prior occasions he (officer) participated in the investigation of those two eases and he observed an undercover agent buy narcotics in those cases; he did not make arrests in those cases before the arrest was made in the present ease; in the present case he received the impression from the informer that if the defendants believed they would be arrested they would destroy the evidence in the apartment by flushing it down the toilet or by throwing it out the window; he and three other officers went to the apartment house and talked with the manager and the manager’s wife; they told the officers that the defendants had lived there about two days and during that time numerous persons, males and females, had been going to the apartment, staying five or ten minutes and leaving, and they used the front and rear doors of the apartment house, that other tenants had complained about it and the manager locked the rear door and was going to ask the defendants to move; the manager gave the officers a passkey to apartment 208 and told them that in case the defendants would not let them into the apartment, they might use the passkey to gain entry, and that if the night chain on the apartment door was hooked they might force entry into the apartment; then the officers went to the door of apartment 208 and one of them inserted the passkey in the lock and opened the door but the chain was hooked; the officer forced the door, breaking the chain lock; when they entered the apartment the defendants were lying on the bed; the officers immediately told defendants that they were from the sheriff’s office and that defendants were under arrest; defendant Flannes made a motion with his left hand toward his face, and one of the officers struggled with him, forced his left hand open, and took a rubber container (part of Exhibit 2) from his hand; opposite the bed the officers found a basket containing a bag in which there was a green leafy substance; in the closet by the bed they found a large shopping bag containing a considerable amount of green leafy substance; on the couch they found a partially burned cigarette containing a green leafy substance; on the kitchen table they found