Hernandez v. Superior Court

NOURSE (Paul), J. pro tem.

*

By an information filed with the district attorney of the County of Los Angeles, petitioner is charged with violation of section 11500 of the Health and Safety Code. Her motion to set aside the information, made pursuant to section 995 of the Penal Code, having been denied she here seeks a writ of prohibition to arrest further proceedings in the respondent court.

The relevant facts are:

Petitioner and one Taverez resided in an apartment at the rear of 1814 Workman Avenue in the city of Los Angeles.

Taverez had been indicted by the grand jury of Los Angeles County on a charge of the sale of narcotics. Police of the city of Los Angeles learned that an automobile used by him was parked on Workman Avenue (adjacent to the apartment house in which petitioner and Taverez resided). The police staked out in the vicinity of the parked automobile,

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and when Taverez entered it they placed him under arrest and there took him into custody. After he was under arrest the officers were advised by a bystander that Taverez lived in an apartment at the rear of 1814 Workman Avenue, the door to which was about 95 feet from the place on the public street where Taverez was held under arrest, and that it was the apartment with a light on.

The officers then went to the apartment indicated by their informant and entered without invitation. They there found petitioner. They did not then have any knowledge of any unlawful act having been committed by petitioner, nor did they have any basis for believing that petitioner had committed a felony. They did not have a warrant for her arrest or a search warrant. They proceeded to search the apartment and found therein a quantity of narcotics. Petitioner admitted that one of the narcotics (dolophine) was hers and that she was using it. Petitioner was then placed under arrest.

The evidence seized in the apartment was received in evidence by the committing magistrate over petitioner’s objection. It is conceded by respondent that if this evidence was improperly received, petitioner’s motion made pursuant to section 995 of the Penal Code should have been granted, and that the writ prayed for here should issue.