McCOMB, J. I dissent.
Defendants were convicted after trial by jury of violating section 11530 of the Health and Safety Code (possession of marijuana).
[276]Facts: About 9 a. m. on September 13, 1961, Inspector Bobert Martin received an anonymous telephone call at the Hall of Justice in San Francisco. A female voice, which was unknown to him, said that two “narcotic losers” were in possession of marijuana and named them as Donald Beeves, who lived at the King George Hotel, and Ken McDonald, who operated an automobile agency on Van Ness Avenue. Inspector Martin understood the term “narcotic loser” to mean one who had gone to prison for a narcotic violation.
Prior to the call, Inspector Martin knew from an earlier narcotics investigation that defendant Beeves had been convicted of smuggling narcotics in Texas. The name Ken McDonald was unknown to him; therefore, he conducted a record search and ascertained that McDonald had been in federal prison for a narcotic violation.
Inspector Martin, with Inspectors Fogarty and Lawler, went to the McDonald automobile agency, where they found a marijuana cigarette in McDonald’s possession. When asked where he had acquired the cigarette, he replied he had received three marijuana cigarettes from Donald Beeves at the King George Hotel the previous evening. He also stated that he had been convicted of a narcotic violation in federal court.
The three inspectors proceeded to the King George Hotel. They learned from the hotel manager that Beeves was registered in room 302 and that he was presently in his room. At the request of the officers, the manager telephoned Beeves and told him that a letter from the Railroad Commission was downstairs. Defendant Beeves replied that he would be down to pick up the letter as soon as he dressed.
The three officers went to the third floor, outside Beeves’ room. One officer was 10 feet to the right of the door, and the other was 6 feet to the left. Inspector Martin stood about 2 feet from, and directly in front of, the door.
Defendant Beeves opened the door and stepped across the threshold. As he and Inspector Martin exchanged a few words, the inspector looked into Beeves’ room. About 11 feet from where he stood in the hallway, he saw two packages of cigarette papers, one red, the other white, and what appeared to be a partially consumed marijuana cigarette, or “roach,” lying on a small bedside table illuminated by a table lamp.
Having in mind the information from the anonymous informant, his own record check, previous contacts with Beeves, and the information received from McDonald, he entered the [277]room and examined the “roach.” He then arrested defendant Reeves.
Inspector Martin questioned Reeves, who directed him to the desk, where there were additional “roaches” in a box and bulk marijuana in a brown paper sack and in a folded piece of cardboard. Inspector Fogarty discovered in the closet a blue canvas travel bag containing marijuana.
Defendant Tuttle was asleep in bed in Reeves’ room, and was awakened by Inspector Lawler. Tuttle then sat on the edge of the bed in his underwear, his clothes being on a chair next to the bed. Inspector Martin asked him if the clothes were his and, when he said they were, began to hand them to him. As the inspector picked up the shirt and trousers, a brown paper bag fell from the pocket of the trousers. Noticing that it was similar to the bag of marijuana found on the desk, he opened it and discovered what appeared to be bulk marijuana. He asked Tuttle about the bag, but Tuttle remained silent.
Questions: First. Was the search of defendant Beeves’ room illegal because it was made pursuant to a ruse perpetrated by the police ?
No. There is no exact formula for the determination of what constitutes reasonable or probable cause for an arrest. Each case must be decided on its own facts and circumstances and on the total atmosphere of the case.
Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. Probable cause has also been defined as having more evidence for than against, supported by evidence which inclines the mind to believe but leaves some room for doubt. It is not limited to evidence that would be admissible at the trial on the issue of guilt. The test is not whether the evidence upon which the officer acts in making the arrest is sufficient to convict but only whether the person should stand trial. (People v. Ingle, 53 Cal.2d 407, 412-413 [1-3] [2 Cal.Rptr. 14, 348 P.2d 577].)
It is established that information from a reliable informer can of itself be sufficient probable cause. (People v. Prewitt, 52 Cal.2d 330, 337 [11] [341 P.2d 1]; Lorenzen v. Superior Court, 150 Cal.App.2d 506, 509 [1] [310 P.2d 180].)
It is likewise settled that neither information from an anonymous informer nor information from an arrestee can of [278]itself be sufficient probable cause. (Willson v. Superior Court, 46 Cal.2d 291, 294 [4] [294 P.2d 36]; People v. Amos, 181 Cal.App.2d 506, 509 [4] [5 Cal.Rptr. 451].) Information from an anonymous source can be sufficient probable cause, however, if it is corroborated by other facts, sources, or circumstances that would justify reliance on it. (Willson v. Superior Court, supra, at p. 294 [4] et seq.; People v. Boyce, 183 Cal.App.2d 763, 766 [3] [6 Cal.Rptr. 859].) Although no single fact may justify an arrest, a combination or concurrence of facts may well do so. (People v. Walker, 165 Cal. App.2d 462, 465 [5] [331 P.2d 668].)
In the present case, the information given by the anonymous informer in the telephone call to Inspector Martin was clearly insufficient to justify an arrest. However, before an arrest was made, every fact contained in the call had been verified or corroborated. The officer had preexisting information concerning one of the named “losers,” as Reeves had been involved in another narcotic investigation in which the officer had participated. At that time, the inspector had discovered that Reeves had been convicted in a federal court in Texas for smuggling heroin. Thus, when he received the call, he had sufficient preexisting information to determine that part of the anonymous information was reliable.
The partial reliability of the information demanded that the remainder be investigated further. The inspector conducted a record search of Ken McDonald and ascertained that a person so named indeed was a “loser,” having served time for a narcotic offense.
Accompanied by Inspectors Lawler and Fogarty, Inspector Martin went to the McDonald automobile agency and found a marijuana cigarette in McDonald’s possession. At this time, all the information received from the anonymous caller had been verified or corroborated with the exception of defendant Reeves’ possession of marijuana.
McDonald then told the officers that he had received three marijuana cigarettes from Reeves at the King George Hotel the previous evening. This information did more than verify the information from the anonymous caller; it provided independent corroboration of the call by another source. (Willson v. Superior Court, supra, 46 Cal.2d at p. 295.)
Since the information received from the anonymous caller had been substantially verified—the address proved correct, both men were “losers,” McDonald possessed narcotics—and defendant Reeves’ possession was corroborated by similar information from another source (McDonald), Inspector [279]Martin acted with reasonable and probable cause when, relying on such information, he arrested Beeves.
Defendants contend that if the officers possessed probable cause to arrest prior to arrival at the hotel, then the subterfuge regarding the letter was unnecessary. However, the subterfuge was a precaution to prevent the destruction of evidence, which often occurs when officers announce their presence and demand entry. (See People v. Montano, 184 Cal.App.2d 199, 205 [6] [7 Cal.Rptr. 307].)
Second. Was there ample probable cause to arrest defendant Tuttle ?
Yes. Tuttle contends that neither association with one known to have committed a felony nor presence on premises suspected to contain narcotics is sufficient probable cause to search or arrest.
This contention is correct. However, in the present case there was more than mere presence or association. As pointed out above, the officers had reasonable cause to believe that an occupant of the room (Beeves) was committing a felony and that the room contained narcotics. After they entered the room and before Tuttle was arrested, their suspicions had been verified—an occupant was committing a felony, and the room contained marijuana.
Although the combination of these two factors alone might not constitute sufficient probable cause to arrest and search a casual visitor in the room, defendant Tuttle was more than a casual visitor; he was asleep in the bed, dressed only in his underwear, and was thus apparently an occupant of the room. Accordingly, it was reasonable to believe that he had more than superficial contact with the marijuana therein. (People v. Ramirez, 185 Cal.App.2d 301, 306 [5b] [8 Cal.Rptr. 184].)
Therefore, the officers had reasonable cause to arrest and make a search incident thereto. It is noteworthy that no search was made, although one was intended. Bather, as one of the officers picked up defendant Tuttle’s clothes in order to search them before handing them to him, a brown paper packet containing marijuana similar to others in the room fell from the pocket. Observing that which is in plain view is not a search. (People v. Murphy, 173 Cal.App.2d 367, 377 [23a] [343 P.2d 273]; People v. Spicer, 163 Cal.App.2d 678, 683 [4-6] [329 P.2d 917].)
Third. Did the trial court properly sustain objections to questions ashed witness McDonald ?
[280]Tes. Defendants contend that the trial court ruled improperly on the privilege against self-incrimination exercised by the witness McDonald.
There are two privileges against self-incrimination: (1) a defendant’s privilege and (2) a witness’ privilege. A defendant need not take the stand at all, whereas a witness must take the stand and exercise the privilege as to each question that would have a tendency to subject him to criminal prosecution. (See Witkin, Cal. Evidence (1958) § 447, p. 498.)
In the present ease, the defense called McDonald as a witness, and he took the stand accompanied by independent counsel. He answered preliminary questions concerning his name and address, but refused to answer two questions relating to the discovery of narcotics in his possession by police officers on the ground that his answers might tend to incriminate him. The court sustained objections to both questions, and defense counsel asked no further questions.
The court’s ruling that the answers to questions concerning the discovery of narcotics in the possession of the witness would tend to incriminate him was based on the previous testimony of Inspector Martin that he had discovered narcotics in the witness’ possession. From the record it is evident that the witness exercised, and the court ruled on, a witness’ privilege and not a defendant’s privilege.
It is clear that answering the questions would have tended to incriminate the witness. Defendants are correct that the questions when removed from the context of the ease were innocuous in and of themselves. However, answers that “might furnish a link in the chain by which a conviction might hang” are privileged, as well as direct admissions of a crime. (People v. Lawrence, 168 Cal.App.2d 510, 516 [7] [336 P.2d 189].)
The court properly takes into consideration all the circumstances of the ease in determining whether there is a real danger that a direct answer to a question may incriminate. (People v. Lawrence, supra, at p. 516 [6].)
Fourth. Did the district attorney exceed the scope of the direct examination during his cross-examination of defendant Peeves1
No. Defendant Beeves was called as a defense witness on behalf of defendant Tuttle. On direct examination by' the attorney for Tuttle, Beeves testified that he met Tuttle in the early morning hours of the day they were arrested; Tuttle was “extremely drunk”; Beeves took him to his room at the
[281]King George Hotel, helped him undress, folded his clothes, and placed them on a chair; he did not put the package of marijuana into Tuttle’s pants pocket; the pockets of the pants were empty when he folded the clothes over the chair; and Tuttle fell asleep. Reeves said he did not see the packet of marijuana fall from Tuttle’s pants pocket, but saw it lying on the floor. This last testimony was the only testimony relating to the time of the arrest given by Reeves on his direct examination.
On cross-examination by the attorney for defendant Reeves, Reeves testified that he had also been drinking that night and that defendant Tuttle was not the only visitor to the room during the night.
On cross-examination by the assistant district attorney, Reeves testified again to meeting Tuttle, escorting Tuttle to his room, helping him undress, and putting him to bed. The attorney for Reeves then objected to certain questions asked by the prosecution, on grounds that they were either outside the scope of the direct examination or incompetent.
Some of the questions concerned the location of the narcotics and cigarette papers when Tuttle entered the room in the early morning and whether such were visible at that time. Others concerned the location of the “roach” seen from the hallway by the officer and whether Reeves told the officers that all the narcotics found in the room were his. The remainder related to the packet of marijuana that fell from the pocket of Tuttle’s pants.
In People v. Zerillo, 36 Cal.2d 222, 227 [4] [223 P.2d 223], we stated: “Section 1323 of the Penal Code provides: ‘A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offers himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief.... ’ This does not mean that the cross-examination must be confined to a mere categorical review of the matters, dates or times mentioned in the direct examination. [Citations.] It may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given by him on his direct examination. [Citations.] ... If a defendant takes the stand and makes a general denial of the crime with which he is charged the permissible scope of cross-examination is very wide. [Citations.] Moreover, as stated in People v. Teshara, 141 Cal. 633, 638 [75 P. 338], ‘A defendant cannot, by testifying to a state of things contrary to and [282]inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, but without testifying expressly with relation to the same facts, limit the cross-examination to the precise facts concerning which he testifies. He can be cross-examined with respect to facts or denials which are necessarily implied from the testimony in chief, as well as with respect to facts which he expressly states. ’ [Citations.] ” (See People v. Butterfield, 177 Cal.App.2d 553, 559-561 [2 Cal.Rptr. 569].)
The witness testified extensively concerning his and Tuttle’s return to the room and the help afforded by him in undressing Tuttle and putting him to bed. Clearly, therefore, the questions concerning the location and visibility of the narcotics at this time were within the scope of the direct examination. It should also be noted that three of the valid "questions were disallowed, thereby barring argument that the defense was injured by the questions.
The extensive cross-examination regarding the packet of marijuana that fell from the pocket of Tuttle’s pants was well justified and within the scope of the pregnant implications contained in the sole question and answer elicited on the subject on direct examination, namely: “Q. Did you see that brown bag marked People’s Exhibit No. 7 fall from his [Tuttle’s] right trousers pocket on the floor? A. No, it was laying [sic] on the floor.”
It was also proper under the rule that when testimony has been introduced relative to an occurrence, all parts of that occurrence, verbal as well as physical, are properly within the scope of the cross-examiner’s probe. (People v. Whitehead, 113 Cal.App.2d 43, 49-50 [5] [247 P.2d 717].)
The questions concerning the location of the “roach” seen by the officer from the hall and whether Reeves told the officers that all the narcotics found in the room were his, if not within the rules already discussed, were hardly prejudicial to defendants. (Cf. People v. Watson, 46 Cal.2d 818, 837 [13] [299 P.2d 243].) The latter question was disallowed by the court, and the former question was repetitious of the possession of narcotics otherwise established.
I would affirm the judgments.
Schauer, J., concurred.
Respondent’s petition for a rehearing was denied May 20, 1964. Schauer, J., and MeComb, J., were of the opinion that the petition should be granted.