People v. McCoy

TOBRINER, J.

Convicted of possession of heroin in violation of section 11500 of the Health and Safety Code, appellant urges on this appeal that the trial court erroneously admitted into evidence “narcotics seized as the result of an unlawful search and seizure.” We have concluded, however, that the prosecution obtained the narcotics through a search to which appellant consented. Although appellant asserted that the searched room was not his own, he allowed the officers to enter it; the false assertion did not mitigate the granted permission.

The record discloses that at about 12:15 a. m. on December 15, 1959, Inspectors Martin and Lawlor of the San Francisco Police Department and Federal Narcotic Agent Niblo, acting on information acquired from an anonymous informer to the effect that “Andy the Salesman” was selling narcotics out of Room 9 at 524 Clement Street, San Francisco, proceeded to that address. Inspector Martin stationed himself on a stairway from which he could view the door to Room 9 while Inspector Lawlor and Agent Niblo remained “at the foot of the main stairway in an alcove just off the entrance to the hotel.”

After about one-half hour the appellant emerged from Room 9, leaving the door open, and walked to the rear of the premises. Upon the elapse of another 20 to 25 minutes Martin summoned Lawlor and Niblo to the head of the stairs. Martin then followed the course taken by appellant and entered a “community restroom” where he found appellant sitting in a chair, apparently asleep. He aroused appellant, identified himself, and asked appellant his name and address; appellant, stating his name, said he lived on Cabrillo Street but was visiting someone in the building.

The inspector

then

related the following sequence; the

[657]

officers “took him out of the bathroom . . . into the hallway and asked him again if he didn’t live in Room No. 9, and he again stated that he didn’t, that he didn’t live there at all, that he was just in visiting friends, and he was asked several times, as a matter of fact, whether or not he lived in that particular room, and he denied it all the way along, and finally we walked towards Room 9 and asked him once more, one more time if he lived there, and he again stated he didn’t, and we asked him then if it would be all right if we searched the room, being as it didn’t belong to him, and he said, ‘Well, go ahead. It’s not my room. ’ ’ ’ The officers entered the room and found five capsules containing a white powder, later determined to contain heroin. Appellant then admitted he lived in Room 9 but denied any knowledge of the capsules.