People v. Rodriguez

WOOD, P. J.

Defendant was accused of unlawfully possessing heroin. The information also alleged that he had been convicted previously of six felonies. In a nonjury trial he was convicted of the charge herein; and the allegations of prior convictions were found to be true. Probation was denied, and he was sentenced to imprisonment in the state prison. He appeals from the judgment.

Appellant contends the court erred in receiving the narcotics in evidence, for the reason there was no probable cause for arresting him or for searching the premises.

Officer MacMillan testified, as follows: He and Officer Dismukes had received a telephone call on February 25, 1960, from “an anonymous person” who stated that defendant was dealing in narcotics at 1118 North Cummings Street, and that defendant lived in a room at the rear of that location, which room was attached to the garage. On said date, about 11:30 p. m., the two officers went to the rear of said address and saw a light in the garage room. The officers stationed themselves outside the door of that room, and after a few minutes the door was opened, and the defendant stood in the doorway. The officers identified themselves as police officers. The officers had a short conversation with defendant pertaining to his use of narcotics, and defendant said, “I’ve been chippying around with the stuff, but I haven’t been dealing.” While defendant was standing in the doorway the light of the room made him visible, and the witness (Officer MacMillan)

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observed that the pupils o£ defendant’s eyes were pinpointed. Then he (officer) turned a flashlight toward defendant’s eyes, but his eyes did not show any reaction to the light. The officer then formed an opinion that the defendant was under the influence of narcotics or had taken a fix of narcotics prior to the arrival of the officers. (It was stipulated that the officer was qualified as an expert in regard to narcotic activities.) After making such observations, the officers arrested defendant, and they questioned him as to whether he had any narcotics on the premises. He replied, “No.” They asked him if he had any objection to a search being made by them, and he replied, “No.” Then the officers began a search of the premises. On the dirt, just outside the door of the garage room, Officer MacMillan found a cellophane paper in which there was a capsule which contained a white powder that resembled heroin. Defendant denied any knowledge of the capsule. While searching a trash barrel which was outside, about 10 feet from the door, Officer MacMillan found 13 capsules in the bottom of the barrel—each capsule contained a “white powdery residue.” When confronted with those capsules, the defendant said, “Those are mine.” The officers asked defendant where his stash was. He said he lived in the rear house, and that his father, mother, nephew, and niece lived in the front house, and he (defendant) had a stash in the front bedroom of the front house. A pregnant girl was in the garage room. Before the officers went to the front house, the defendant said he did not want to embarrass the girl or the members of his family who were in the front house. Also, before the officers went to the front house, the defendant voluntarily said that he would take the officers to his stash, that none of the persons in the front house had any knowledge of his activities pertaining to narcotics, and that the stash and “outfit” were his. The officers proceeded to the rear door of the front house and knocked on the door. A young male person opened the door and admitted the officers “to the house.” Then the defendant “led” them into the front bedroom, and he said that the stash was on a shelf in the closet. Officer Dismukes reached upon the shelf and removed a red balloon which contained 43 capsules of white powder, and it also contained a hypodermic outfit. Thereupon, about 1:30 a. m., they took defendant to the police station, where defendant said that he “had been dealing just enough to support his habit.” It was stipulated that a qualified chemist would testify that the 43 capsules (which were found on the shelf) and the