People v. Veloz

Opinion

LILLIE, J. Defendant was charged, with possession of heroin (§ 11500, Health & Saf. Code). His motion to suppress evidence pursuant to section [501153]8.5, Penal Code, was granted, and dismissal of the cause was ordered (§ 1385, Pen. Code). The People appeal from order of dismissal.

Prior to February 2, 1971, Deputy Winston had a conversation with State Parole Officer Parker who asked him if he knew a person by the name of Louis Veloz; he replied that he did and knew where he was; Parker told him that Veloz was “running from the program, State parole” and had been avoiding contact with him for approximately a year. Around 11:30 a.m. on February 2, Winston and two other deputies in plain clothes went to defendant’s residence; he went alone to the front door and knocked; defendant’s wife answered; he told her he was a carpet salesman sent by the welfare office to recarpet her home, whereupon she admitted him. He testified that he used this ruse because “I was told by Mr. Parker that the defendant was a rabbit, or that he had run before and that I wouldn’t get in by identifying myself.” Immediately upon entering he saw defendant lying asleep in a bed three or four feet from the front door; upon prearranged signal the other two deputies entered, one of whom awakened defendant; Deputy Winston arrested him for violation of section 3151, Welfare and Institutions Code, and although he did not have a parole warrant with him the number, N27924, was given to him by Parker. Defendant, who was not dressed, asked Deputy Asendorf for his pants; as the deputy handed them to him he searched them for weapons and found several balloons of heroin in a pocket; Deputy Winston advised defendant he was under arrest for possession of heroin, and of his constitutional rights. Defendant told him, “ ‘You might as well take everything,’ ” walked over and gave the officer a hypodermic outfit.

The trial court granted the motion to suppress on the basis of People v. Rosales, 68 Cal.2d 299 [66 Cal.Rptr. 1, 437 P.2d 489], and In re Robert T., 8 Cal.App.3d 990 [88 Cal.Rptr. 37].

Preliminarily the trial judge expressly found that “there was reasonable and just cause to go to the defendant’s residence and apprehend him,” and it is apparent from the record that the parole officer authorized and requested defendant’s apprehension as a California Rehabilitation Center parole violator; while he was not at the scene of defendant’s subsequent detention, his physical presence there was not necessary to the carrying out of such request. (People v. Giles, 233 Cal.App.2d 643, 647 [43 Cal.Rptr. 758].) Thus, In re Robert T., 8 Cal.App.3d 990 [88 Cal.Rptr. 37], is distinguishable. Therein the officers had “no reasonable probable cause for the arrest of the occupants of apartment No. 6 until after the burglarized items were seen in the apartment subsequent to the entry based on a subterfuge.” (P. 994.) In the case at bench probable cause for arrest existed prior to and apart from entry of the deputies to defendant’s residence,