Robison v. Superior Court of the City & County of San Francisco

California Supreme Court Oct 4, 1957 No. S. F. 19798Published

Before: Gibson, Shenk, Traynor, Schauer, Spence

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Holding. By failing to object to the admission of evidence at a preliminary hearing, a defendant waives the right to challenge that evidence as illegally obtained, and such evidence may be used to establish sufficient cause to hold the defendant to answer.

Issues

Did the committing magistrate properly consider evidence obtained without a warrant when the defendant failed to object at the preliminary hearing?
Did the evidence presented at the preliminary hearing establish sufficient cause to hold the defendant to answer for a violation of Health and Safety Code section 11500?

Disposition. denied

Quotations verified verbatim against the opinion

“By failing to object at the preliminary hearing to the admission of the evidence that he had a narcotic in his possession, defendant waived his right to claim that the evidence was improperly received”

“The evidence was sufficient to warrant the committing magistrate in holding defendant to answer before the superior court.”

Opinion

49 Cal.2d 186 (1957) LORENZO ROBISON, Petitioner,

THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

S. F. No. 19798. Supreme Court of California. In Bank.

Oct. 4, 1957. Gregory S. Stout for Petitioner.

Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, and Victor Griffith, Deputy Attorney General, for Respondents. [187]

McCOMB, J.

This is an application for a writ of prohibition to restrain the Superior Court of the City and County of San Francisco from trying defendant on the charge of violating section 11500 of the Health and Safety Code.

The record at the preliminary hearing disclosed that defendant was charged with violating section 11500 of the Health and Safety Code (possession of dolophine, a narcotic).

Officer Rinken testified that on January 17, 1957, he went to 2945A Bush Street, San Francisco, where he and other officers arrested John Hall for violation of section 11557 of the Health and Safety Code (maintaining premises where narcotics are sold) and for possession and sale of narcotics, in violation of section 11500 of the Health and Safety Code. The officer stated that there had been sales of narcotics from this apartment on at least two other occasions on the same date, that is, January 17, 1957.

After Hall was arrested, defendant came to the apartment, knocked on the door, and was admitted by one of the officers. Officer Rinken asked him if he had anything on him. Defendant was thereupon searched by the officer, and in his left front jacket pocket there was found a paper-wrapped tablet that contained dolophine. This tablet was received in evidence without objection.

It is conceded that the officer did not have a warrant for the arrest of defendant or a search warrant permitting him to search defendant.

Questions: First. Did the committing magistrate properly consider the evidence that defendant had in his possession a narcotic at the time he was arrested, in view of the fact that the arresting officer did not have either (a) a warrant for defendant's arrest or (b) a warrant authorizing him to search defendant?

Robison v. Superior Court of the City & County of San Francisco

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Opinion

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CARTER, J.

NOTES

Opinion — McCOMB

Concurrence — Carter

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