Hernandez v. Superior Court

Opinion

DEVINE, P. J.

This petition has to do with arrest of a parolee and with the ensuing search of his home. An all-points bulletin to law enforcement agencies for the arrest of petitioner Vincent Hernandez, á parolee, was issued because he had violated parole by changing his residence without permission and by failing to submit a monthly report to his parole agent. Four San Francisco police officers (the leader of whom had seen the teletype which gave the fact that Hernandez had been committed for selling narcotics) went to Hernandez’ apartment and rang the door bell. Hernandez opened the door, saw two officers and immediately tried to close the door and to hide behind it. The officers pushed the door open and entered. A balloon was taken from Hernandez’ hand. It was found later that it contained heroin. One officer then entered the kitchen and saw, in plain view, narcotics paraphernalia: syringes, needles, balloons, cotton and a funnel. He testified that he had gone into the room to see if there was anyone there. Another officer went into a room which was a combination living room with bedroom and found that there was, indeed, someone there, the other petitioner, Anita Carlson, who was sitting on the bed. The same officer entered from the hallway a walk-in closet and found a loaded revolver, on top of a bureau.

Vincent Hernandez and Anita Carlson were held to answer on a charge of possession of heroin and Hernandez has been charged with possession of a concealed weapon by an ex-felon. Motions under Penal Code section 1538.5, for suppression of evidence, having been denied, there followed the instant petition for writ of prohibition.

[172]

Petitioners’ first point is that the all-points bulletin was invalid because it was not based on probable cause supported by oath or affirmation. Petitioners cite

People

v.

Sesslin,

68 Cal.2d 418 [67 Cal.Rptr. 409, 439 P.2d 321]. But while parole may be revoked only for good cause, it may be suspended and the parolee’s return may be ordered upon official accusation. Detailed recitation is unnecessary. The renewed custody is not sought for a fresh offense to be charged and proved (although a new offense may come to light, as in this case), but upon a former conviction which has been followed by the grace of parole.