People v. Davis

FORD, J.

By an information the defendant was charged with having had possession of heroin on or about May 8, 1961, in violation of section 11500 of the Health and Safety Code. It was further alleged that he had suffered two prior convictions for the violation of that section of the Health and Safety Code. In a non jury trial, he was found guilty as charged and the allegations as to the prior convictions were found to be true. He has appealed from the judgment and from the order denying his motion for a new trial.

The defendant asserts that the evidence against him was obtained by means of an unlawful search and seizure. The pertinent evidence will be stated. B. T. Austin, a deputy sheriff, testified that at about 5 p. m. on May 8, 1961, in the course of a narcotic investigation, he went to an apartment house in Downey. A Mr. William Brooks had informed him that the defendant was there engaged in selling heroin. About one and a half months before, the witness had arrested a John Sweeten who had heroin in his possession and Mr. Sweeten had stated that the defendant had taken him to Tijuana where they had purchased heroin which they brought back to the area. Furthermore, the witness knew that the defendant was “a convicted narcotic addict.” The witness also testified as follows:“. . . we received in our Detail copies of the names of registered addicts crossing the border going into Mexico, and Mr. Davis’ name had appeared quite frequently for approximately two months prior to his arrest.”

Officer Austin requested from the manager of the apartment house a key to the defendant’s apartment because he did not want to damage the property “if a forced entry was

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necessary.” Other officers entered another apartment and placed a Jill Cryer under arrest “for addiction.” Officer Austin knocked on the door of the defendant’s apartment and, there being no response, he then entered the apartment by use of the key received from the manager. The defendant was asleep on the couch. When the officer aroused him he observed that the defendant was “very disorientated” and his eyes were “very pin-pointed.” Upon being asked if he was using heroin, the defendant said that he was only “chipping around.” Officer Austin then placed him under arrest “for violation of State Narcotic Laws.” The premises were searched but no narcotics were found. The officers left the apartment between 6:30 and 7 p. m.