People v. Gaines

265 Cal.App.2d 642 (1968) THE PEOPLE, Plaintiff and Respondent,

v.

LARRY D. GAINES et al., Defendants and Appellants.

Crim. No. 6381. California Court of Appeals. First Dist., Div. Four.

Sept. 12, 1968. Michael T. Morton, under appointment by the Court of Appeal, for Defendants and Appellants.

Thomas C. Lynch, Attorney General, Robert R. Granucci and Michael Buzzell, Deputy Attorneys General, for Plaintiff and Respondent.

CHRISTIAN, J.

Defendants were convicted of possession of heroin (violation of Health and Safety Code section 11500). On appeal, they contend that in their nonjury trial the court's finding of guilt depended upon evidence procured [644] as the result of an unlawful search. Our holding is to the contrary.

On June 8, 1966, at approximately 9 p.m., Inspectors Martin, Lawler, and Arrieta of the San Francisco Police Department went to an apartment building at 1040 Steiner Street, San Francisco, to conduct a narcotics investigation. The investigation was based on information received from an untested informant that appellant Jackson was selling narcotics in his apartment in that building. The police inspectors did not have either a warrant for the arrest of appellant Jackson or a warrant to search his apartment.

The officers were admitted into the apartment house by the manager, who confirmed the fact that appellant Jackson occupied an apartment there. The consent of the manager to enter the building was given freely. She provided the officers with a key to the apartment directly across the hallway from Jackson's apartment. The officers entered and maintained surveillance of Jackson's apartment. Inspector Martin took a position behind the slightly opened door of his hiding place, where the doorway to Jackson's apartment could be directly viewed without detection by anyone entering or leaving Jackson's apartment. The hallway separating the doorways of the opposite apartments was approximately three to five feet wide.

After keeping watch for approximately 10 minutes, Inspector Martin observed appellant Gaines approach and be admitted to Jackson's apartment. Inspector Martin recognized Gaines at that time as a man whom he had previously arrested for a narcotics violation. After 15 or 20 minutes had elapsed, Gaines emerged from Jackson's apartment. As Gaines stepped into the hallway immediately outside Jackson's apartment, Inspector Martin opened his door wide, and moved rapidly into the hallway towards Gaines. As Inspector Martin entered the hallway, Gaines looked in his direction, then made a backwards throwing motion with his left hand, crouching at the same time. Inspector Martin observed a small and compact, light-colored object leave Gaines' left hand as the throwing motion was made. Inspector Martin immediately concluded that the parcel contained heroin. It bounced back into Jackson's apartment. Looking past Gaines, Inspector Martin saw Jackson inside the doorway to his apartment holding the door open. Inspector Martin stepped rapidly towards Gaines in an attempt to retrieve the thrown object, momentarily detaining Gaines and thereby inflicting a scratch over his eye. Going past Gaines, Inspector Martin entered the apartment and retrieved the thrown object, despite Jackson's belated attempt