People v. Dominguez

BURCH, J. pro tem.

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Defendant was charged and convicted of the possession of a narcotic (Health

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Saf. Code, §11500); with one prior felony conviction (stealing a vehicle). He appeals from the judgment and order denying a new trial. The question raised concerns the use of evidence obtained by a police officer by a search of defendant’s home without a search warrant. (Cal. Const., art. I, § 19.)

A few minutes before midnight on October 17, 1955, William A. Palm, a San Diego police officer saw the defendant in the 3700 block of 44th Street, San Diego, in company with one Maxie. The officer had information over the police radio

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system to be on the lookout for the men on suspicion of possession of narcotics. No narcotics were found on defendant’s person but he was arrested on suspicion of possession and taken to the San Diego jail. When arrested, defendant’s arms had wounds as from pin pricks, one of which looked to be freshly made and was bloody. At about 2:30 p. m. on the day after defendant was taken into custody Officer William E. Erb, without defendant’s knowledge and without first obtaining a warrant, went to defendant’s home at 3625 Highland Street, San Diego, and knocked at the door. Mrs. Dominguez, defendant’s wife, opened the door. The officer identified himself and asked for permission to enter and look around. Mrs. Dominguez was aware of her husband’s arrest. She said she “guessed” that it would be all right and later testified at the trial that she “voluntarily” let the officer enter. Mrs. Dominguez testified as to her feelings when she opened the door and allowed the officer to enter. “Well, I was naturally upset. My husband had just been arrested, and the baby was due. That’s all.” Upon entering the kitchen, on a ledge under the sink, the officer found wrapped in a soiled handkerchief, a small fold of paper that contained some grayish powder; a spoon with a ball of cotton adhered in the bowl; a syringe and needle; two hand rolled cigarettes and a package of Lucky Strikes. These items were taken to the police station. The powder was found to be a narcotic, heroin; the spoon and cotton had traces of heroin; and the hand-rolled cigarettes were found to contain marihuana.

The record shows that Mrs. Dominguez had rented the premises at 3625 Highland Street in June of 1955, and defendant had lived there with his wife and children until the arrest. According to Dr. Williams, a licensed physician, an examination of defendant at 1:45 a. m. showed defendant to be under the influence of a narcotic.