People v. Regalado

SHINN, P. J.

July 19, 1960, Adolfo Guzman Regalado was arrested for the possession of heroin, was convicted of the offense, he appealed from the judgment, the conviction was affirmed by this court (193 Cal.App.2d 437 [14 Cal.Rptr. 217]) and a hearing was denied by the Supreme Court. In June 1963, the United States Supreme Court granted certiorari and remanded the case “for further consideration in light of

Ker

v.

California, ante,

p. 23 [83 S.Ct. 1623, 10 L.Ed.2d 726], and

McDonald

v.

United States,

335 U.S. 451 [69 S.Ct. 191, 93 L.Ed. 153].” (374 U.S. 497 [83 S.Ct. 1875, 10 L.Ed.2d 1044].)

At the time of defendant’s arrest he spat out a cellophane bindle and had another bindle on a table beside him, both of which contained heroin. At his trial defendant admitted having had possession of the narcotic. The only question in the case has been whether the methods used by the officers in the apprehension and arrest of defendant and seizing the contraband were in violation of defendant’s rights under the Fourth Amendment and article I, section 19, California Constitution. No warrant of arrest or search warrant had been issued.

Two officers, observing defendant and three others enter a hotel, followed them in, ascertained from the manager the location of the room to which they went, took positions outside in the hallway, and one of the officers, in trying to look through the keyhole, saw a small round hole of the diameter of the lead in a lead pencil in the door panel about 3 feet from the floor. Peeking through the hole, Officer Walsh saw

[588]

defendant with an eye dropper and a needle in his hands and upon a table beside him an open bindle which was found to contain heroin. Believing defendant was about to give himself an injection of narcotics the officers forced open the door, arrested defendant and seized the paraphernalia and narcotic. Upon the trial, when the narcotic, the needle and the eye dropper were offered in evidence, they were received over defendant’s objection that they had been seized unlawfully.