People v. Small

WOOD, P. J. Defendant was convicted, in a non jury trial, of unlawfully possessing heroin. Upon stipulation the case was submitted upon the transcript of the preliminary examination. Defendant did not testify. The information alleged that defendant had been convicted previously of burglary, but no evidence was presented with respect thereto. He was sentenced to imprisonment in the state prison. He appeals from the judgment and from the order denying his motion for a new trial.

Appellant contends that the heroin, received in evidence, was obtained as the result of an unlawful search; that there was no probable cause for the arrest or search; and that the corpus delicti had not been established prior to receiving evidence as to conversations with appellant.

A deputy sheriff, who had two and one-half years’ experience as a member of the narcotic detail of the sheriff’s office of Los Angeles County, and who was qualified as an expert witness with respect to the illegal use of narcotics by narcotic addicts, testified in substance as follows: On November 3, 1959, about 3:45 p. m., while he was riding in an automobile in a parking lot of a food market, he saw the defendant who was walking on the lot and was pushing a market cart which contained a bag of groceries and a piece of machinery. When the automobile was about 2 feet from the defendant, the deputy observed several marks on the back of defendant’s left hand—the marks were over a long discoloration which was over a vein between the forefinger and thumb. At that time the deputy formed an opinion that the defendant may have been using a narcotic, and thereupon the deputy alighted from the automobile and had a conversation with defendant.

When the deputy testified that he had a conversation with defendant, the attorney for defendant objected to the conversation on the ground that the corpus delicti had not been established. The judge said: “He [deputy district attorney] wants it to be admitted for the purposes of probable cause only, Mr. Parsons [attorney for defendant].” The attorney for defendant said, “All right, fine.” The judge said that 1 ‘ on that basis alone the conversation will be admitted. ’ ’ The deputy sheriff did not have a warrant of arrest or a search warrant.

[174]The deputy sheriff testified further: After alighting from the automobile and calling to the defendant, the defendant stopped, and the deputy asked, “Are you using some stuff?” The defendant replied, “Yeah.” The word “stuff” is used as meaning “narcotics.” The deputy said to defendant: “How much are you using now?” He replied, “About a gram.” Then the deputy looked at the marks again and placed defendant under arrest and searched him. He (deputy) placed his hand in defendant’s coat pocket and removed therefrom a rubber container in which there were two small rubber balloons containing a white substance. Then, in the presence of two other deputy sheriffs who had come there with the witness (deputy), the witness had a conversation with defendant. The statements of defendant, in that conversation, were made freely and voluntarily. The deputy asked him “if this was all he had on his person.’’ He replied, “Yes.” The deputy asked if he had anything else at home. He replied, “No,” and “This is all I have.” The deputy asked where he got “these,” and what they were. He replied that he bought them for his own use and that they were heroin.