SCHAUER, J.,* Dissenting. The circumstances delineated in the reporter’s and clerk’s transcripts (which are epitomized in the majority opinion) in my view are ample to support the trial court’s finding of probable cause for the defendant’s arrest and the ensuing search and seizure of contraband.
The resolution of conflicting testimonies and inferences was essentially for the trial court and I do not understand that People v. Reeves (1964) 61 Cal.2d 268 [38 Cal.Rptr. 1, 391 P.2d 393] is intended to modify that fundamental distinction between trial and appellate jurisdiction; it remains our [181]duty to indulge every reasonable presumption in favor of sustaining the trial court. We do not (in contrast to the situation in Beeves) have in this case a mere uncorroborated telephoned statement from an anonymous, unknown and unseen informer; to the contrary, substantially all of the informant’s statements were strongly corroborated (1) by his appearance, condition and position when apprehended by deputy sheriffs, all as interpreted in the light of their expert knowledge, and (2) by the acts and statements of the defendant before (as well as after) his arrest. Furthermore the very substance of the informant’s statements gives them a type of corroborative sanction.
Among other relevant facts it appears that this defendant at all times concerned was already under “arrest” in a significant sense. Arrest means taking a person into custody or placing him under personal restraint. Insofar as his civil rights may be involved defendant was in legal custody at the time of the events in question. He theretofore had been arrested for a narcotics offense; such prior arrest had culminated in conviction and sentence for violation of section 11500 of the Health and Safety Code, a felony, and defendant was serving a part of that sentence on parole. Upon conviction of the felony and sentence to the state prison for a term less than life his civil rights were suspended. (Pen. Code, § 2600.) “Prisoners on parole shall remain under the legal custody of the department and shall be subject at any time to be taken back within the inclosure of the prison. ’ ’ (Pen. Code, § 3056.) A convicted prisoner on parole is in contemplation of law still a prisoner, and possesses only such civil rights as the parole authority may have granted. (See Pen. Code, § 3054.) “The only difference in his status from that of other prisoners is that he is permitted to remain outside the prison walls, although he is still in custody. In the Denne case [People v. Denne (1956) 141 Cal.App.2d 499, 509 [9a]-510 [9b] (297 P.2d 451) ] the court further held that the place of residence of a parolee may be entered and searched by prison officials or parole officers in the same manner as the search of a prisoner’s cell. ...” (People v. Contreras (1957) 154 Cal.App.2d 321, 325 [3] [315 P.2d 916] ; see also Cal.Const., art. X, § 7; In re Ferguson (1961) 55 Cal.2d 663, 670 [2] [12 Cal.Rptr. 753, 361 P.2d 417].) There is no suggestion in the record that the parole authority had granted this defendant the right to possess or deal in heroin or be immune from search of his premises for that narcotic.
[182]The soundness of the quoted (Contreras) holding becomes particularly apparent if we consider the potentiality of its application to narcotic parolees (or so-called outpatients) when any such parolee has been accorded the benefits of the California Rehabilitation Center program. That enlightened project properly recognizes—and so should we—the notorious tendency of such persons to revert to their former addiction, and the corresponding duty of the program to furnish continuing and vigorously implemented supervision of a type which even the clever mind of a craving addict cannot long or often circumvent. To this end the Legislature has provided “The rules for persons in outpatient status shall include but not be limited to close supervision of the person after release from the facility, periodic and surprise testing for narcotic use, counseling and return to inpatient status at the California Rehabilitation Center or its branches at the discretion of the authority, if from the reports of agents of the Department of Corrections or other information including reports of law enforcement officers as to the conduct of the person, the authority concludes that it is for the best interests of the person and society that this be done. [Added by Stats. 1963, eh. 1706, § 11.] ” (Italics added.) (Pen. Code, § 6517.)
In the trial of the ease at bench it was stipulated that Deputy Sheriff Avila was “an expert in the use of narcotics and in addiction.” The deputy testified that he had a conversation with the informer, one Renteria; that the latter “stated on the evening of November 9 he had gone to an apartment on Lynalan Street, and that he had gone into this apartment and purchased two capsules of heroin. He stated the person that lived at that location had attempted to inject him, the informant, with narcotics on either two or three occasions, that the person who had sold him these narcotics had been unable to administer the narcotics and that he then himself took the syringe and injected the heroin in himself.
“He stated the heroin must have been quite strong, because he got an over jolt, he received more narcotics than he had been accustomed to, and he had been helped to his automobile, where he had passed out from the over jolt of narcotics, and was then arrested in that vehicle, his vehicle.
“He stated the person that sold him the narcotics in Whittier lived in an apartment in Whittier, and that he did not know exactly where it was, but he would take the officers to that location and show the officers where it was,” This, as will appear, he faithfully did.
[183]The deputy further testified that in his opinion (and, of course, based on his personal observation and stipulated expertise) the informer was at that time “under the influence of some opiate ’ ’; that he examined such informer and observed “narcotic injection wounds”; that he and a brother officer took the informer to 8601 Lynalan Street “where the informant pointed out an apartment and stated this particular apartment was where he had been injected and where he had purchased the narcotics.” These statements obviously were admissions against his interest and tended to incriminate the informer. The informant further stated that (as related by Deputy Avila) “the person who lived at that apartment was driving a black 1937 Plymouth, I believe, with primer spots on it. ’ ’
The informant was then returned to the jail and the officers staked out near the identified apartment. A few hours later the officers observed the defendant alight from a vehicle which appeared to be a black Plymouth “perfectly” fitting the description theretofore given by the informant; defendant then walked up to the door of the identified apartment and inserted a key in the lock. These acts of defendant manifestly fitted in with, augmented and corroborated the informer’s prior statements, and prima facie demonstrated the defendant’s domiciliary control of the premises.
The officers then approached the defendant and the following events took place as related by Officer Avila: “I asked the defendant what his name was. At that time I identified myself, I showed him my identification badge, and I asked him what his name was. He stated his name was Ismael Gallegos. I asked him if he lived at that location. He stated he did. . . . I asked him if he had been arrested for narcotic violations in the past, and he stated he had, that he was at that time current on parole for narcotic violation. At that time I placed him under arrest. ’ ’
It was further specifically testified that “We [the officers] waited until the key was inserted into the lock before we approached him [defendant] ” and “By the time . . . our conversation was complete, the door had been opened. ...”
From a reviewing court’s standpoint, as I understand our duty, it appears well nigh indisputable by us that the defendant was the person described by the informer; that he personally had possession of the described premises; that those premises and the defendant and the automobile in which he arrived constituted real evidence which corroborated the in[184]former’s statements in all of those particulars. The further statement by the informer (an admission against his personal interest of a fact bearing a penal sanction, which type of admission does not require further substantiation to make it admissible (People v. Spriggs (1964) 60 Cal.2d 868, 870 [la], 874 [3-lb], 875 [4] [36 Cal.Rptr. 841, 389 P.2d 377])) that he had unlawfully procured and injected heroin on the identified premises was corroborated by the fact that the informer was apprehended in the immediate vicinity in his car under the influence of a narcotic—not just any narcotic but an “opiate” which would include heroin. Certainly the search of defendant’s premises after he had voluntarily opened the door thereto and had admitted that he was on parole as a narcotics felon, was incident to his clearly lawful arrest. The officers’ procedure was in no way obnoxious to the rules recently reviewed and spelled out by us in People v. Cruz (1964) 61 Cal.2d 861, 865 [3] -866 [5] [40 Cal.Rptr. 841, 395 P.2d 889], In my opinion the officers would have been derelict in their duty if they had not, in the circumstances then known to them (from the informer’s statements, the defendant’s statements, and their own observations) made the arrest of the parole violator and searched his premises. The contraband found in those premises was, of course, subject to seizure and, on the facts found, admissible against both the defendant and the informant.
The fact that the officers who made the search in the case at bench were not parole officers would seem to be quite unimportant. The acting officers had ample reason to believe that defendant was using or dealing in illegal narcotics and he himself, before the entry or search, volunteered the information that he was on parole as a narcotics violator. It is difficult for me to conceive of any evidence which could more convincingly corroborate all essential elements of the basic information theretofore furnished to the deputy sheriff by the informer. On this factual showing I view the acts of the officers as constituting intelligent and commendable law enforcement. They harmed no one; to the contrary their efficient action was protective and beneficial to the parolee addict himself, to the public, and particularly to the pitiable “sick” people the parole violator would otherwise have served with the illicit drug.
This case, as I view it, exemplifies the very type of alert, intelligent, and expeditious law enforcement which I should like to see this court be equally alert to support.
In these circumstances neither the Cahan nor any other [185]of the cited cases should be extended to immunize the illicit dealings of the admitted narcotics felon on parole.
I would affirm the judgment.
McComb, J., concurred.