People v. Stafford

California Court of Appeal Mar 12, 1964 No. Crim. 4373Published

Before: Draper

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Holding. The court held that any potential error regarding the admission of evidence obtained from an allegedly illegal search was rendered harmless because the defendant had voluntarily admitted to the possession of marijuana during a prior municipal court proceeding.

Issues

Whether the search and seizure of the defendant's residence was supported by probable cause.
Whether the defendant's prior voluntary testimony admitting to possession of marijuana renders any error in the admission of seized evidence moot.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We need not determine this issue, however, since we have determined that defendant’s testimonial confession renders the issue moot, and negates prejudice to him.”

“Thus defendant’s guilt of the offense of which he was convicted was established by evidence independent of that produced by the officers’ search”

DRAPER, P. J.

Charged with possession of marijuana for sale (Health & Saf. Code, § 11530.5), defendant was found guilty by a jury of the lesser included offense of possession of marijuana (Health & Saf. Code, § 11530). He appeals from the ensuing judgment.

Appellant contends that the marijuana admitted into evidence was the product of an illegal search and seizure by police. At about 10 p.m., a police officer talked to one Bathea on an Oakland street corner about three marijuana cigarettes lying on the sidewalk nearby. Bathea denied knowledge of the cigarettes, but consented to go to police headquarters to be searched. There he offered to help the police by telephoning sellers of marijuana. He consented to recording of his call, and at 11 p.m. dialed a number, and talked to a man he called Glen. Recording of this conversation was played to the jury. In it, Glen said that he had marijuana, but the conversation is ambiguous as to any offer by him to sell it. Bathea then drove with the officers, pointed out Glen’s house, and, from a nearby public telephone booth, again placed a call. This conversation was not recorded, but an officer, with Bathea’s consent, listened to it. Bathea again called the answering voice Glen, and sought to have that man deliver marijuana to him. Glen refused. This was at 11:30 p.m. The officers left on an unrelated errand, and returned without Bathea at 3 a.m. They forced defendant’s door, found marijuana which defendant was attempting to flush down the toilet, and three marijuana cigarettes. The marijuana was admitted in evidence over defense objection that it was the product of an illegal search. Defendant took the stand, admitted possession of the marijuana, but denied sale or intent to sell any of it. There is no evidence that Bathea was a reliable informer. The police had not previously acted on information from him.

[524]

A search without a warrant is proper if incident to a lawful arrest based on reasonable grounds to believe that defendant has committed a felony

(People

Torres,

56 Cal.2d 864 [17 Cal.Rptr. 495, 366 P.2d 823]). Bathea’s statements alone do not establish this probable cause, since there is no showing that he was a reliable informer

People v. Stafford

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DRAPER, P. J.

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