People v. Torres

HERNDON, J.

In an information filed by the district attorney, appellant was accused of violating section 11500 of the Health and Safety Code in that he wilfully and unlawfully had in his possession the narcotic marijuana. After his motion to set aside the information (Pen. Code, § 995) had been denied, appellant entered a plea of “not guilty.”

A trial by jury having been duly waived, the parties stipu

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lated to a submission of the cause on the transcript of the preliminary hearing, each side reserving the right to offer additional evidence. Appellant testified at the trial. The court found him guilty as charged, denied both his motion for a new trial and his application for probation and sentenced him to state prison.

This appeal is from the judgment and from the order denying the motion for a new trial. The sole question presented is whether the incriminating evidence against appellant was seized unlawfully and in contravention of his constitutional right to be protected against unreasonable searches and seizures.

The facts bearing upon this narrow issue may be stated briefly. At approximately 6 p. m. on March 19, 1957, Officer King of the Narcotics Division of the Los Angeles Police Department was informed by Sergeant Bitterhoff of the Robbery Division that a man named Tony residing at 136 West 69th Street was selling narcotics. At approximately 9:45 p. m. on March 19, 1957, Officer King was standing in front of the residence at the given address when appellant (whose nickname was Tony) opened the door and came out. The officers identified themselves as police officers and stated to appellant that they had information that he was using and dealing in narcotics. He denied the accusatory statement. The officers then asked him whether “it would be all right if we’d look in the house.” Appellant answered, “Yes, go ahead.”

The officers thereupon entered the house and made a search. They had neither search warrant nor warrant of arrest. In the course of the search the officers found in a drawer of the front bedroom dresser a brown handkerchief which contained a portion of a medicine dropper and hypodermic needle. Also in the same drawer was a brown wrapped cigarette. In an ash tray by the bedstand, Officer King found two portions of a brown wrapped cigarette. These cigarettes contained marijuana according to the testimony of a forensic chemist. In the pocket of a suit was found a brown paper bag containing 13% grams of material identified as marijuana. On a shelf on the back porch there was found a can containing a small quantity of the same narcotic substance.