Opinion
Rehearing Denied Dec. 18, 1962.
Russell Bruno, Oakland, (under appointment of the District Court of Appeal), for appellant.
Stanley Mosk, Atty. Gen., John S. McInerny, John F. Foran, Deputy Attys. Gen., San Francisco, for respondent.
AGEE, Justice.
Defendant appeals from a judgment entered upon a jury verdict finding him guilty of a violation of section 11530 of the Health and Safety Code (possession of marijuana). A prior conviction of section 11500 of the Health and Safety Code (possession of narcotic other than marijuana) was charged and admitted by defendant.
The sole issue on appeal is whether the trial court erred in admitting into evidence the marijuana in question, over defendant's objection that it was obtained by means of an illegal search and seizure. The evidence and the inferences reasonably to be deduced therefrom will be viewed in the light most favorable to the trial court's ruling.
On or shortly prior to September 25, 1961, officers of the San Francisco Police Department received information that there were narcotics on the premises located at 3639 Army Street, in San Francisco. This address was that of a house occupied by a Mrs. Lucero, defendant's mother-in-law. Defendant, his wife and their two small children had been staying there for about three weeks. The record does not disclose the source of the information received by the officers.
On September 25, 1961, Inspectors Kerrigan and Arieta of the San Francisco Police Department, narcotics detail, and three narcotic agents of the state and federal governments kept the house under surveillance for a period of ten to twelve hours. During that time they saw four or five persons who were known to them to have been engaged in the narcotics traffic enter or leave the house. Some of them had been convicted of narcotics offenses. The officers also saw the defendant enter. Arieta knew of defendant's past narcotics record and he also knew defendant's wife, Ruby, having arrested her on a prior occasion.
At the conclusion of this surveillance, the officers entered the house. They found nothing except a pistol, which they took with them in order to check the serial number.
On October 2, 1961, one week later, the officers returned to the house at about 3:45 Arieta told defendant that he knew his background and asked him if he was using narcotics or had any in the house or on his person. Defendant answered in the negative. He was asked if he would show his arms and he did so, thereby displaying puncture marks. He agreed to being searched. A key was found in defendant's pants, which he said was to his mother's house. Defendant was asked if he had an 'outfit' on the premises and he said that he did. He led Arieta into the bedroom, lifted up the mattress and showed him a small cardboard box containing a dripper or syringe, a hypodermic needle and a piece of a razor blade.
Defendant told Kerrigan that he would not keep narcotics on the premises because it was his mother-in-law's house. In the meantime, Arieta had questioned Ruby outside of the hearing of the defendant, and she told him that the key was for a room that defendant had at the Miramonte Hotel, at 25th and Mission. She agreed to go there with the officers. When confronted with this information, defendant denied any knowledge of the hotel but said that he was willing to go along also.
Defendant, his wife, and the officers then proceeded to the hotel. Arieta used the key to unlock the door of room 205. A paper bag of marijuana was found in an inside pocket of a sport coat hanging in the closet. Defendant admitted that the coat and the marijuana were his and he was thereupon placed under arrest.
Defendant makes no claim that any force or violence was used at any time. His position is that he did not resist or object to the search of his person or of the hotel room because he thought that it would be useless to do so.
Defendant's version is as follows: 'I think Mr. Arieta asked me was I clean, which is the vernacular for 'Do I have any narcotics?' And I told him, no, I didn't have any; and I was standing up and he started going in my pockets. Well, I didn't resist him. He took my money and gave me my money back and patted me down in general, and he came and went through my wallet, looked at it, looked for, I assume, narcotics, and he came up with the key and asked me what the key was to, and I didn't know what the key was to, actually, because the pants--I had been working, and I just put the pants on, and he started asking me about a hotel, and I told him I didn't know anything about a hotel * * *. I said I thought it [the key] was to my mother's house in South City, but I wasn't sure. * * * [I]t was just a plain key.'
Defendant admitted that he told Arieta where the 'outfit' was and that he 'took Officer Arieta in there [the bedroom] to get it.' He testified that he had not used heroin for some time but he did not deny that there were needle marks on his arms. He stated that he did not know who the 'outfit' belonged to but he admitted that he voluntarily gave it to Arieta.
Defendant denied that he volunteered to go to the hotel. He testified: 'I certainly volunteered to go nowhere. I was told and my wife was told to go with me. No formal words were said to me, 'You are under arrest for this or that or anything,' until afterwards.'
Defendant admitted that he followed Arieta into the hotel room without being ordered to do so but stated, 'I had no choice.' He denied that the coat or the bag containing the marijuana were his or that he had told the officers that they were his.
Defendant's wife testified that she and defendant were separated 'in a way' and If defendant voluntarily consented to the search of his person and of the hotel room, then there is no point in discussing whether the search would have been lawful in the absence of such consent. (People v. Michael (1955) 45 Cal.2d 751, 290 P.2d 852; People v. Gorg (1955) 45 Cal.2d 776, 291 P.2d 469.) 'Whether in a particular case an apparent consent to a search was in fact voluntarily given or was in submission to an express or implied assertion of unlawful authority is a question of fact to be determined in the light of the circumstances by the trier of fact, whose determination when supported by substantial evidence is binding on an appellant court.' (44 Cal.Jur.2d 340-341, Searches and Seizures, § 40.)
Evidence of consent ought to be scrutinized very closely. It is unlikely that a guilty person would consent to a search which he knew would reveal contraband chargeable to him. However, as was pointed out in People v. Robinson, 149 Cal.App.2d 282, 285, 308 P.2d 461, 463, it is 'logical to infer that a culprit who has no narcotic on his person would readily agree to a search of his home if he believed that the drug was cleverly enough concealed to escape detection, thus convincing the officers of his innocence of the impending charge, or at the minimum incurring their goodwill through a show of cooperation.'
In the instant case, the needle marks on defendant's arms were not described as being 'fresh.' Defendant therefore had no reason not to willingly display his arms to the officers. The following testimony by defendant indicates this: 'As a matter of fact, I haven't used any stuff for a long time. If I had, I imagine I would have been arrested for vagrancy and addiction of narcotics along with this change.'
As stated before, defendant admitted that he had told the officers about the 'outfit' and led them to where it was hidden under the mattress. He had no reason not to do so. He knew that the officers were familiar with his record. There was no way for the officers to tell how recently the 'outfit' had been used or by whom. Defendant had no fear that it would incriminate him. Neither did the defendant think he was taking any risk by agreeing to the search of his person. When the officers found the plain, unidentified key in his pocket, he glibly explained that it was to his mother's house. It was only when defendant's wife unwittingly identified the key as being to his room at the Miramonte Hotel that the key became of significance. Otherwise, the officers would have left the house without any incriminating evidence and defendant would have accomplished his objective of convincing the officers that he was 'clean.'
But the wife's identification of the key made it obvious to everyone that the officers were going to have to continue their investigation by going to the hotel. Defendant could have dropped his pretense of cooperation at this point but to do so would undoubtedly increase the suspicions of the officers. He continued to deny knowing anything about the hotel but stated his willingness to go there with the officers. He made no protest when Arieta used the key to unlock room 205 and followed him into the room without being ordered to do so. When the marijuana was found, he admitted that it was his. He stated that he had gotten it from a friend, whom he refused to identify.
This about-face might seem strange except for the fact that defendant had two friends who were occupying the adjoining room. He had not mentioned this to the officers and did not know that his wife had. In any event, the officers did not enter room 206 on that day but, as Kerrigan testified, 'subsequently there was an arrest made there.' It is not our function Our conclusion that the search of defendant's person and of room 205 were freely consented to by the defendant is decisive of the case.
Judgment affirmed.
KAUFMAN, P.J., and SHOEMAKER, J., concur.