People v. Gambos

LILLIE, J. An amended information charged defendant with possession of heroin and marijuana. By stipulation the matter was submitted to the trial court on the transcript of the testimony taken at the preliminary hearing. Additional evidence was heard and the court found defendant guilty. He was sentenced to the state prison.

[558]Appellant herein contends (1) there was no probable cause to justify his arrest and (2) the evidence is insufficient to prove possession of narcotics.

Defendant had been under police surveillance for approximately four days; and, on the evening before his arrest, Officer Virgin observed him driving an automobile in which was also riding one Cane jo, whom the officer had arrested on a prior occasion. Defendant stopped the car and Weido, whom Virgin had previously questioned regarding narcotic activities, got into the back seat. He rode two blocks and then got out; and, stopped by the officer, he told him that he had been trying to “score” from both of the men but they were out of “stuff.”

The next evening a man and a woman, to whom Virgin had previously spoken concerning narcotics, drove up to defendant’s house, which the woman entered; and after five minutes, she and defendant were observed in the bathroom where police, through an open window, observed her hold up what appeared to be a hypodermic needle and syringe. Shortly thereafter she left. Police kept the premises under surveillance and an hour later defendant left, walking along the side of the house to a crawl hole underneath. He opened the hole, which was about three feet deep and two and one-half feet wide, placed his arm inside, drew it out and locked the screen which covered it. Officers stopped defendant as he walked from it to his car; and as Officer Virgin talked to him he noted defendant’s eyes were pinpointed. Considering defendant to be under the influence of narcotic, Virgin arrested him; an examination of his arms disclosed fresh needle marks.

Defendant denied having narcotics on his person or in his house and consented to a search; the officers found none, but the house revealed empty cap boxes, gelatin capsules and balloons. Officer Virgin then took the key he had obtained from defendant and opened the screen to the crawl hole under the house, finding therein a small child’s jacket in the sleeve of which was tucked a bag containing four balloons each holding five gelatin capsules containing heroin, and a small paper sack containing marijuana. Confronted with this evidence and asked if it was his, defendant said, “No, I am not copping out to anything.” Then, regarding fingerprints, defendant at the same time said, “You will find my fingerprints all over it.”