People v. Fisher

LILLIE, J. Defendant Wilkins and two others, Fisher and one Beverly Johns, were charged on Count I with possession of heroin in violation of section 11500, Health and Safety Code; in addition, Wilkins was charged with three prior felony convictions under the same section. Count II accuses only Fisher of possession of marijuana. Defendant and Fisher, having waived their rights to a jury trial, submitted the matter to the court on the testimony contained in the transcript of the proceedings had at the preliminary hearing, and then moved to suppress certain evidence on the ground that it was the result of an illegal search and seizure. Argued extensively by counsel, the motion was denied. Defendant neither took the stand nor offered a defense. The trial court found him guilty as charged and his prior felony convictions, as alleged, to be true and sentenced him to the state prison. This appeal is by Wilkins only.

The uncontested testimony of the two police officers discloses that all defendants were arrested with narcotics and assorted paraphernalia in their possession. Defendant does not deny this, but argues that there was no reasonable cause for his arrest without a warrant, and thus the evidence, (Exhibits 1A-B-C-D-E—heroin, balloons, a funnel, paper, a strainer, hypodermic needles, eyedroppers and a metal teaspoon taken immediately after his arrest), was illegally seized after an unlawful search, under the rule of People v. Cahan, 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513].

At approximately 9:30 a. m., as narcotics officers Beckmann, Leeds and Dreese drove past an apartment building on Central Avenue, Beckmann noticed an automobile parked several hundred yards away, which he recognized as belonging to defendant Wilkins. Beckmann had known Wilkins personally for four or five years and knew of his past record and activities concerning narcotics, having arrested him several years before for possession of narcotics, for which he was convicted. The officers parked and went into the apartment house where Beckmann asked the manager concerning the whereabouts of Fisher and Wilkins. He told them that Fisher lived there, the latter having recently moved from apartment 8 to apartment A, and [311]that he was then in the apartment with his cousin. Beckmann asked the manager if Fisher’s cousin was, according to his description of Wilkins, a male Negro, thin and tall, about 6 feet 2 inches, with a noticeable limp, and if he drove two cars, a Ford and a Cadillac. The manager answered in the affirmative that the description “sounded as if he was the one who was back in the apartment with Fisher,” and that “he had seen this man who had driven these two ears at this address. ’ ’ He also told Beckmann that there was much traffic in and out of apartment A and “that people would come up through the front, the front (sic), and through the back door and that they would give some sort of a secret knock and that they would go inside and that they would be there a short while and then they would leave.” Asked by Beckmann for a description of Fisher’s apartment and how it was set up, the manager drew a diagram showing apartment A and its layout and floor plan. He told them the apartment was on the second floor to the rear on the northeast side of the building. The officers then located apartment A—Beckmann stationing himself in the back on the outside steps leading to the apartment, and Leeds near the door leading into it from the other side. Beckmann, standing next to it, put his head against the lower part of the open kitchen window. The shade was drawn and he could not see the occupants, but Beckmann could hear male voices coming from the kitchen. He could not hear complete sentences, but heard “snatches of the conversation,” certain words and the loud snapping of balloons. At one time he heard a voice say: “ (B)e careful of the funnel”; and at another, “ (W)here are the balloons; hand me the balloons.” Beck-maim, who had two years’ experience in the Narcotics Division of the police department, was familiar with the parlance, language and items used by persons dealing in and using narcotics, and knew that a “funnel” was used in preparing a powdered narcotics by persons selling, pushing and dealing in narcotics, and that a “balloon,” used as a container, is one of the common ways of keeping and selling narcotics. After listening for a short time (from three to five minutes), Beckmann went around to where Leeds was stationed and told him that from what he heard it sounded “like they were ballooning up stuff in the house.” “Ballooning up” means “preparing it; putting the narcotics in the balloon,” and “stuff” means “narcotics such as heroin.” Thereupon, Leeds knocked on the door announcing they were police officers. Immediately they heard a “large commotion” coming from the kitchen, then