People v. Fourshey

Opinion

ELKINGTON, J. The People appeal from an order (termed “judgment” in the notice of appeal) of the superior court granting defendants’ motions to suppress evidence (under Pen. Code, § 1538.5), and to dismiss an in[428]formation (under Pen. Code, § 995) charging them with possession of heroin for sale (Health & Saf. Code, § 11500.5 [now Health & Saf. Code, § 11351]) and transportation of heroin (Health & Saf. Code, § 11501 [now Health & Saf. Code, § 11352].)

The motions had been submitted for decision on the transcript of a preliminary hearing which contained the following uncontradicted evidence.

A previously tested and reliable informer and heroin addict told City of Richmond police officers that he had been purchasing large quantities of heroin from one Lloyd Fourshey over a six-to-eight-month period. He informed them that Fourshey often delivered the heroin to his (the informer’s) apartment in Richmond. Sometimes, he said, Fourshey came alone with the stuff, but at other times he came with another man, or with one Marie from Marin City or one Vera from San Francisco. “When he was with somebody, part of the time the other person would have it.” If he was with Marie “there was a 50-50 chance that she would be carrying the dope.” The police were unacquainted with Fourshey or with his picture. An inquiry by the police of Marin County authorities disclosed that Fourshey was considered one of the largest heroin dealers of that county.

The informant agreed with the police to arrange another such purchase from Fourshey, thus to help them make a case. He telephoned Fourshey, saying he was ready to buy; Fourshey stated he would be over that evening, and further said: “We are going to do something different this time.” The informer then called Fourshey’s associate, Marie of Marin City, and asked her about the “difference.” Following this call he told the police to “expect a new person” with Fourshey that evening. The informant agreed to signal the police when Fourshey and the “new person” arrived at the street level front door of his apartment house, by opening the drapes of his apartment’s front room. Later when his bell rang, the informer over the “intercom,” learned that Fourshey was at the street door. He told Fourshey that he would come down to open the door as the electric door opener was inoperative. But instead he opened the drapes.

Waiting police officers, observing the signal, walked over to the apartment house where they found a man and a girl “at that front door.” The officers had never seen either of them before. One of the officers identified himself “as a police officer and told them that they were going to be searched and, put their hands above their heads.” A search of the man uncovered no contraband. A policewoman in attendance then searched the girl; “three packages of plastic rolled in a roll” were found in “the center front, tucked inside her skirt.” The man was defendant Lloyd Fourshey and the girl,