People v. O'NEILL

SHINN, P. J.

In a court trial Donald Wayne O’Neill was found guilty of possessing heroin and was sentenced to state prison. He appeals from the judgment.

The matter was submitted upon the transcript of the preliminary hearing. Appellant did not testify.

There was evidence of the following facts: Having received information from an informer of unknown reliability that a tall, dark-complexioned man with a moustache named Gato and his brother, who had moved into an apartment house on South Union Street the previous week, were in possession of

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check-forging paraphernalia, were users of narcotics, and were possibly in possession of narcotics, Officers Dorrell and Fesler went to the location on December 11, 1959. They had neither a search warrant nor a warrant for anyone’s arrest. The landlady told the officers that two men who matched the description were living in a ground floor apartment and that two other men had recently moved into apartment 203. Dorrell and Fesler staked out the apartment on the ground floor. An hour later appellant entered the building in the company of a man named Wadlington, went upstairs and entered apartment 203. The officers went to the door of the apartment and listened in. About 10 minutes later appellant opened the door. As he did so Dorrell exhibited his badge and said,“I’m a police officer, I’d like to talk to you.” Appellant jumped back into the room and slammed the door in Dorrell’s face. The officers pushed in the door before it could be latched and forced entry into the apartment. Inside the apartment were appellant, Wadlington and appellant’s brother Robert. Beside a typewriter on a coffee table were blank personalized cheeks and other tools of the forger and a hypodermic outfit commonly used by narcotic addicts. The officers found another hypodermic outfit in a chest of drawers; within the bowl of a spoon was the residue of a substance that was proved to be heroin. The three men denied ownership of the typewriter, the check-writing material and the narcotic paraphernalia. Although appellant denied using narcotics, Dorrell examined his arms and found fresh needle marks. Appellant admitted living in the apartment for about a week.

In the course of his cross-examination Officer Dorrell was asked to disclose the name of his informant. Dorrell refused to answer upon the ground of privilege, whereupon appellant made a motion to strike the testimony of the witness respecting communications from the informer; the motion was denied by the magistrate. Appellant also objected to the introduction of the heroin in evidence upon the ground of illegal search and seizure; the objection was overruled. In stipulating that the matter be submitted upon the transcript of the preliminary appellant reserved his right to make a motion to suppress the contraband. The motion was made, it was argued at length, and it was denied by the court.