People v. Ausbie

JEFFERSON, J.

Dudley Ausbie and Sammie Pickens (not appealing), were charged by information with the crime of possession of heroin in violation of section 11500 of the Health and Safety Code. The information alleged four prior felony convictions against Ausbie, to-wit: larceny from the person in 1940; grand larceny in 1944; burglary in 1948 and illegal sale of heroin in 1958. Ausbie entered a plea of not guilty and denied the prior convictions. He personally and all counsel waived trial by jury. The court found him guilty as charged and the prior convictions to be true. Motions for new trial and probation were denied and Ausbie was sentenced to the state prison for the term prescribed by law. Appeal is from the judgment of conviction.

1

Appellant’s sole contention on appeal is that his conviction was the product of an illegal search and seizure.

Joseph F. Spelman testified he was attached to the narcotics division of the Los Angeles Police Department. On July 21, 1961, he, with two other officers, went to an apartment house at 2727 South Budlong Avenue, Los Angeles. They had received information from an informer that defendant was living in Apartment 23 and that he was dealing in narcotics. They kept Apartment 23 under surveillance from 7:30 a.m. to 9 :30 a.m. During this period Officer Spelman observed (from his vantage point in an apartment directly across the hall from Apartment 23) codefendant Pickens approach the entrance of Apartment 23, knock on the door and be admitted to the apartment. A few minutes later appellant came out of the apartment and proceeded down the hallway. He moved out of view and returned to Apartment 23 in approximately five minutes. When the door to the apartment was opened the officer observed appellant hand

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codefendant Pickens what appeared to be two No. 5 capsules which, in the officer’s opinion, based upon his experience as a narcotics officer, were used to hold narcotics. Suddenly, codefendant Pickens looked up, saw Officer Spelman, threw up his hands and dropped the two capsules to the floor. Defendant attempted to close the door, but Officer Spelman pressed against it, entered the apartment and placed defendants under arrest. The two capsules were retrieved by a fellow officer who also entered the apartment with Spelman. A search of the apartment was made and a box used to hold No. 5 capsules, a can of milk sugar and a large supply of balloons, were found. Officer Spelman testified that in his opinion these objects were ordinarily used in the traffic of narcotics.