People v. Yancy

SHINN, P. J.

Defendant was charged with the crime of possession of heroin. In addition he was charged with a prior felony, to wit, conviction for the sale of marijuana.

After pleading not guilty and denying the prior conviction, defendant, with counsel, waived trial by jury upon the issue of guilt and as to the allegation of the prior conviction. By stipulation the cause was submitted upon the transcript of the preliminary hearing with counsel reserving the right to offer additional evidence. At the trial defendant testified in his own behalf. He was found guilty. His motion for new trial was denied, as was probation. The prior was found to be true and defendant was sentenced to the state prison. He appeals from the judgment and order denying his motion for a new trial.

With respect to defendant’s contention that his apartment was unlawfully entered and searched there was evidence that Police Officers Dorrell and Pesler went to search Yancy’s apartment at 1063% West 55th Street, Los Angeles, at about 12:10 p.m. on March 1, 1960; they knocked at the front door several times and, receiving no answer, they walked around to the rear door. The door was open and a woman was inside. Officer Dorrell asked if the defendant was there. The woman motioned with her head toward the inside. The officers entered the kitchen and seeing another man, inquired if he were the defendant. This man, whom Officer Pesler recognized as the landlord, told Officer Dorrell that defendant was in the bedroom, pointing to it. Both officers walked through the open bedroom door and found defendant in bed. Dorrell awakened defendant, identified himself as a policeman, showed his badge, and explained why they were there. He asked and received permission from Yancy to look around the apartment. Upon discovering a large quantity of heroin in the bedroom they placed defendant under arrest.

[667]

Yancy told the officers that it was his heroin and that he had it for his own use.

There was conflicting testimony as to whether consent to the entry and search was voluntary; however, the question was one of fact and there was evidence supporting the court’s finding.

It is well recognized that if someone with apparent authority consents to the entry, and entry is made in good faith, it is not unlawful.