BURKE, J. I dissent. The majority opinion holds that “the search of Cooper was unlawful, his consent to the entry of his hotel room is [therefore] invalid, and the evidence secured by the prosecution as the fruit of that consent is inadmissible.” However, the record does not show that the search of Cooper was unlawful, and in the trial court defense counsel did not claim specifically that Cooper's search was unlawful (nor is the matter argued by the parties in their briefs on appeal)1
[635]By ruling that the heroin could be admitted in evidence the trial court made an implied finding that Cooper effectively consented to the entry of his room (a finding defendant does not challenge in his briefs on appeal). Whether an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority is a question of fact to be determined in light of all the circumstances. (People v. Fischer, 49 Cal.2d 442, 448 [317 P.2d 967].) Here in addition to proof of apparent consent by Cooper to the entry of his room, there was evidence, among other things, that when he gave that consent only two officers were present, that they were then in the hallway near his room, and that he was not under arrest. Since defense counsel did not clearly raise the question of the validity of the search of Cooper, it manifestly would be unreasonable to require the prosecution, in order to meet its burden of showing proper justification for the search of Johnson (see e.g. People v. Lara, 67 Cal.2d 365, 373 [62 Cal.Rptr. 586, 432 P.2d 202] ; People v. Henry, 65 Cal.2d 842, 845 [56 Cal.Rptr. 485, 423 P.2d 557] ; Badillo v. Superior Court, 46 Cal.2d 269, 272 [294 P.2d 23]), to introduce proof of the lawfulness of the search of Cooper to negate any possibility Cooper's search was unlawful and rendered ineffective his consent to the entry of his room.
In my opinion the record supports the trial court’s implied finding that Cooper effectively consented to the entry of his room. As will hereafter appear, the observations of the officers inside that room together with other matters known to them clearly established probable cause for defendant’s arrest, and the search of defendant was lawful as an incident thereto.
According to Officer Ladner, when defendant opened the door Miers identified himself as a police officer. Miers denied this but stated that on an earlier occasion he had revealed himself to defendant as a police officer. The officers further testified: On seeing them, defendant appeared surprised and [636]nervous and immediately backed away four or five feet, turned Ms back toward the officers, bowed Ms head, and put his hand toward his face. Miers asked him to turn around and open Ms mouth, defendant did so, Miers saw a balloon inside defendant’s mouth and told him to spit it out, and defendant complied. Miers opened the balloon and saw that it contained a powder which later proved to be heroin. Miers, who had made numerous narcotics arrests, testified that in “this particular area” (apparently of the hotel) most people who possess heroin carry it in balloons inside their mouths in order to be able to swallow it should they be apprehended. Defendant was arrested after Miers looked inside the balloon.
Defendant testified: He had the balloon in his mouth when he opened the door. Miers did not identify himself as a police officer, and defendant did not know Miers was an officer, although defendant had seen him around the neighborhood “stopping people.” After defendant turned Ms back on the officers, Miers grabbed him by the back of his neck, applied pressure there, and told him to open his mouth and “Spit it out. ’ ’ He opened his mouth, and Miers pulled out the balloon.
In rebuttal, Miers denied placing his hands on defendant’s neck or choking him, and Ladner stated he did not see Miers place his hand on defendant’s neck or choke him.
The officers had no search warrant or warrant for defendant’s arrest; however, a peace officer may arrest a person without a warrant “Whenever he has reasonable cause to believe that the person to be arrested has committed a felony. ...” (Pen. Code, § 836.) “Reasonable or probable cause exists when the facts and circumstances within the knowledge of the officers at the moment of the arrest are sufficient to warrant a prudent man in believing that the defendant has committed an offense. (Beck v. Ohio, 379 U.S. 89, 96 [13 L.Ed.2d 142, 147, 85 S.Ct. 223] ; People v. Schader, 62 Cal.2d 716, 722 [44 Cal.Rptr. 193, 401 P.2d 665].)” (People v. Talley, 65 Cal.2d 830, 835 [56 Cal.Rptr. 492, 423 P.2d 564].)
Here the officers testified they had received specified information from a “reliable informant.” On cross-examination defense counsel asked for the informer’s name, and the officer replied he did not wish to reveal the name because the person’s life might be endangered if he did so. The court stated it did not want to endanger anyone’s life and did not require disclosure. Defense counsel did not move to strike the officers’ testimony but thereafter stated, “The information [637]from the informant is no longer able to be considered, because of the officers not revealing the identity. ’ ’
Assuming that under the foregoing circumstances defendant can now raise the problem of nondisclosure (see Coy v. Superior Court, 51 Cal.2d 471, 473 [334 P.2d 569] ; Priestly v. Superior Court, 50 Cal.2d 812, 819-820 [330 P.2d 39] ; People v. Postell, 170 Cal.App.2d 31, 34-37 [338 P.2d 454]), disclosure was not required if apart from the informer’s information there was probable cause for defendant’s arrest. (People v. Hunt, 216 Cal.App.2d 753, 756-757 [31 Cal.Rptr. 221] ; People v. McMurray, 171 Cal.App.2d 178,183 [340 P.2d 335] ; see People v. Williams, 51 Cal.2d 355, 359 [333 P.2d 19].)
In the present case apart from the informer’s information the officers knew that defendant was in the apartment of an admitted narcotics user; that two or three months before, defendant had been by a grocery store in an area frequented by narcotics peddlers; that on seeing the officers defendant appeared surprised and nervous, backed away, turned around, bowed his head and put his hand toward his face; and that in the area of the hotel most people who possess heroin carry it in balloons inside their mouths in order to be able to swallow it. There was thus probable cause for defendant’s arrest apart from the informer’s information. (Cf. People v. Sanchez, 189 Cal.App.2d 720, 722 [11 Cal.Rptr. 407] ; People v. Pendarvis, 178 Cal.App.2d 239, 240-241 [2 Cal.Rptr. 824] ; People v. Taylor, 174 Cal.App.2d 448, 451-452 [344 P.2d 837].)
It is immaterial that the search preceded the arrest because they were 11 substantially contemporaneous” and before making the search the police had probable cause for the arrest. (People v. Williams, 67 Cal.2d 226, 229 [60 Cal.Rptr. 472, 430 P.2d 30] ; People v. Cockrell, 63 Cal.2d 659, 666-667 [47 Cal.Rptr. 788, 408 P.2d 116].)
There is no merit to a claim by defendant that a confession inadmissible under Escobedo v. Illinois, 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], and People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], was introduced at his trial. Officer Miers testified that after defendant spit out the balloon, he “questioned the defendant about [its] contents” and that defendant stated that it contained 1 ‘ five . . . bags of smack,” that he had “the stuff” for about two days, that Cooper knew nothing about “this stuff,” that- defendant had paid $50 for ten bags and had used five of them, and that he had been using ‘1 the stuff ’ ’ for six years.
[638]A defendant’s statements cannot properly be introduced into evidence where (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, and (4) the authorities had not effectively informed the defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights. Escobedo v. Illinois, supra, 378 U.S. 478, 490-491 [12 L.Ed.2d 977, 985-986] ; People v. Dorado, supra, 62 Cal.2d 338, 353-354.) To determine whether “a process of interrogations” had been undertaken, we must apply an objective test and “anlayze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.” (People v. Stewart, 62 Cal.2d 571, 579 [43 Cal.Rptr. 201, 400 P.2d 97].)
Here the officers were engaging in normal investigatory questioning. The exact length of the interrogation does not appear but it apparently was of short duration. The questioning occurred at the scene of the arrest after defendant “spit out” the balloon, and defendant was questioned about its contents. Afterwards the officers examined those contents and then arrested defendant. In light of the total situation that enveloped the questioning it appears that the purpose of the officers was to afford defendant an opportunity to explain away what appeared to be a crime committed in their presence. (Cf. People v. Alesi, 67 Cal.2d 856, 863-865 [64 Cal.Rptr. 104, 434 P.2d 360] ; People v. Perez, 65 Cal.2d 709, 715 [56 Cal.Rptr. 312, 423 P.2d 240] ; People v. Cotter, 63 Cal.2d 386, 393 et seq. [46 Cal.Rptr. 622, 405 P.2d 862] [vacated on another ground in 386 U.S. 274 [18 L.Ed.2d 43, 87 S.Ct. 1035]] ; People v. Brooks, 234 Cal.App.2d 662, 667 et seq. [44 Cal.Rptr. 661].)
I would affirm the judgment.
McComb, J., and Mosk, J., concurred.
Respondent’s petition for a rehearing was denied June 26, 1968. Mosk, J., and Burke, J., were of the opinion that the petition should be granted.
In the trial court defense counsel stated in relevant part, "Officer Ladner said that Cooper was [sic] under arrest. [Ladner had testified to the contrary.] [Cooper] was taken to the station, but he was certainly under arrest. He also was searched apparently before the officer went into the room. Certain moneys were found on him. I don’t know if it [apparently Cooper’s consent to enter his room] was involuntary or otherwise. There have been recent cases which the Supreme Court, on the [635]question of whether consent is really free, and of the recent Eaven case in which the— The Court: You have no basis to attack the consent in this ease? [Defense counsel]: Except the entire situation is one that doesn’t, in my estimation, ring really completely true, whether this is consent by Cooper or simply a submission, and the same thing is true when they get into the room. I think it is an entire picture that can’t be—the officers went there. The information from the informant is no longer able to be considered, because of the officers not revealing the identity. The act of the defendant in the room—” The court stated, “I can’t agree that it doesn’t ring true. ...” and subsequently received the heroin in evidence.