People v. Boyce

RICHARDS, J. pro tem.* Convicted of two counts of violating Health and Safety Code, section 11500: (1) sale of heroin, (2) possession of heroin and a prior conviction of a violation of the same section having been found true, defendant appeals from the judgment.

Police officers arranged with one Simms to buy three capsules of heroin. They gave him $9.00 in currency, noting the serial numbers, having previously searched him and found nothing resembling narcotics on him. Simms proceeded to the residence of one Holmes and the officers waited at a prearranged meeting place. Shortly thereafter Simms arrived and handed the officers two capsules, later identified as containing heroin. The officers then proceeded to the residence of Holmes and placed him under arrest. They found in his house another capsule of heroin. Holmes was searched and when the $9.00 in currency was not found on his person or in the house, the officers told him they would have to take his wife to the station to be searched. Holmes then told the officers he would get the $9.00 and that it was over on the next street. Holmes then led the officers to the house where defendant was staying, having told the officers that he (Holmes) had given the $9.00 which Simms gave him to defendant in return for three capsules of heroin, and that the capsule found in his house was the third capsule which Simms had paid for. Without either a warrant for arrest or a search warrant, the officers entered the house [765]which Holmes had pointed out and arrested defendant. They searched him and found on his person the $9.00 in currency which had been given to Simms. A search of the premises disclosed more capsules containing heroin and a small sack of marihuana.

After recovery of these items, defendant stated to one officer that it looked like they had ‘ ‘ got me good. ’ ’ Upon being asked if he was dealing in narcotics, the defendant answered in the affirmative. At a later conversation, defendant stated the house in which he was arrested was his girl friend's; that he had a key to it; that he would “come and go” and that he stayed there overnight. Defendant also stated that the heroin capsules found there belonged to him.

Defendant’s principal contention on appeal is that there was an illegal search and seizure of the narcotics admitted in evidence over his objection.

This contention can have no relation to the conviction of a sale of heroin under the first count for the two heroin capsules there involved were in the possession of the officers before entry into the house, independent of any search and seizure therein or of the person of defendant.