Hacker v. Superior Court

STONE. J. Petitioner seeks a writ of prohibition to restrain the Superior Court of Tulare County from proceeding in the case of People v. Hacker. The petition was brought pursuant to Penal Code section 999a after the court had denied a motion under Penal Code section 995 to set aside an information charging petitioner with violation of Health and Safety Code section 11500. possession of a narcotic.

The principal ground for his motion below and his petition to this court is that the narcotic which he is alleged to have possessed and which was admitted in evidence over objection at the preliminary hearing, was seized illegally. He also asserts insufficiency of the evidence.

Following commitment to the Department of Corrections [389]and placement at the California Rehabilitation Center at Corona, petitioner was released in an “outpatient status” under the supervision of Field Agent Leigh Byrne. As an outpatient he was obligated to obey the terms and conditions imposed by the Rehabilitation Center. It was Agent Byrne’s duty as supervisor to see that petitioner complied and if he had not, petitioner’s outpatient status could be suspended by Byrne. On July 16, 1967, Byrne obtained a specimen of urine from petitioner, who was residing at his mother’s home in Visalia. A laboratory test of the urine revealed a positive narcotics usage, so on July 22 Byrne ordered Detective Domier of the Visalia Police Department to “pick up” petitioner. He did so under the authority of Welfare and Institutions Code section 3151, which provides that:

“. . .A single member of the authority may by written or oral order suspend the release in outpatient status of such a person and cause him to be retaken, until the next meeting of the authority.

“It is hereby made the duty of all peace officers to execute any such order in like manner as ordinary criminal process. ’ ’

Detective Domier and a sergeant from the Visalia Police Department went to the address given, and were informed that petitioner could be located at another address. At the place designated, the sergeant checked the rear exit of the apartment and Detective Domier Imocked on the front door. Petitioner answered, admitted Domier, and was placed under arrest, searched and handcuffed. The sergeant then entered the apartment and the officers searched the premises. Two rubber contraceptives were discovered in the kitchen, containing a powder which Detective Domier said was “In my opinion I felt that it was heroin.” The material was sent to a state chemist, who confirmed Domier’s suspicions.