People v. Marich

ASHBURN, J.

Convicted by a jury upon two counts of unlawful possession of heroin (Health & Saf. Code, § 11500) on February 3, 1961, and March 22, 1961, respectively, defendant appeals from the judgment. As to Count I his attorneys argue insufficiency of the evidence and as to Count II unlawful search and seizure.

Count I. The burden of the argument is that the quantity of narcotic found in defendant’s possession was so small that it should be disregarded. Counsel say in their brief: “ [I]t is defendant’s contention that a minimum amount of narcotics must be in the defendant’s possession in

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order to be in violation of said section. ... It is submitted that a Rule of Thumb to be followed in eases of this type requires that there be at least a minimum amount of narcotics, to-wit: that the amount of narcotics which must be shown to constitute violation of 11500 of the Health and Safety Code should be that amount which after testing by the chemist would leave over and above that test a sufficient amount remaining so that if defendant or any other agency should seek to test these same narcotics chargeable to the defendant, that there be enough for such a test over and above that amount used by the chemist testifying in such a case.” No authority is cited in support of these propositions and the cases are to the contrary.

Armed with a search warrant, police officers went to appellant’s apartment on February 3,1961. Upon observing numerous puncture wounds on appellant’s left hand, Officer O’Neill placed him under arrest for narcotic addiction. A search was then made of appellant’s bedroom where the officers found in his shoe an eyedropper, rubber bulb, piece of string around the bulb, piece of cotton, a hypodermic needle and a cigarette package. On a table they found a piece of paper on which was a brown stain and which was folded in a manner indicating that at one time it was used as a “bindle,” i.e., a container for heroin. They also found a partially smoked marijuana cigarette in a vacuum cleaner, some dexamyl, amphetamine, and seconal; and a pipe containing what appeared to be marijuana. Asked, “ [i]s this your fit, Nick?” defendant said, “Yes, it is.” The piece of cotton and the folded paper are the significant items.

The People’s expert witness, a forensic chemist, testified that he examined these items on February 27th. He noted “several powdery fragments present in the folds of the paper.” He stated that “ [i]n reference to the piece of dirty cotton I found that that particular piece of dirty cotton had a residue inside the cotton and on the cotton and as a result of a series of chemical examinations, it is my opinion that this residue contains Heroin.” It was likewise his opinion that the power residue found in the folds of the paper contained heroin. “Q. At the present time as the paper sits before you on the witness stand, is there still any of that residue left in the paper? A. I do not see any of it. Q. Is it necessary for you to use all of it in the examination, is that correct ? A. I believe practically all of it was used—utilized in the course of the chemical analysis.” “Q. And in respect to