People v. Estrada

In the afternoon of the same day Sergeant Ewing went to 18 South 19th Street and from a vehicle parked across the street kept the apartment house under surveillance. At about 4 p.m. he saw defendant leave the building in a car. Ewing immediately radioed other officers to follow and overtake defendant. He himself remained where he was with the search warrant in his possession.

San Jose Police Sergeant Stanley M. Hardman and Deputy Sheriff Stanley E. Shaver, who had been participating in the “stakeout” at the apartment house, followed defendant in separate cars and eventually intercepted him about a mile away. The two officers approached the car on different sides. Shaver ordered defendant out of it, placed him under arrest handcuffed him and proceeded to search his person. He had no warrant for defendant’s arrest. Although Shaver testified on direct examination that up to the time defendant alighted from the car he had committed no misdemeanor in his presence, he also stated under cross-examination that he had arrested defendant for marked drug addiction in violation of Health and Safety Code section 11721, a misdemeanor. Recalled by the prosecution later in the trial, Shaver testified that at the time he arrested defendant and in response to the latter’s request as to “what this was all about,” he told defendant that he was under arrest for the sale of heroin.

The search of defendant’s person produced $630 in currency, a wallet and a toy balloon.. Although Officer Shaver testified that in making the search they were operating under the above-mentioned search warrant, he also stated that he did not have the warrant in his possession at the time of the search and defendant was never provided with a copy of it.

After he was searched, defendant was taken back to his apartment house in Hardman’s car. Hardman drove and defendant sat in the rear seat in the custody of Deputy Sheriff Aslanian who, on defendant’s complaint that his handcuffs were too tight, handcuffed him in front instead of behind. During the ride defendant was smoking a cigarette, a circumstance claimed to be of some significance. At the time of the arrest, about 4:15 p.m., both Shaver and Hardman had seen needle marks on defendant’s arms. While no one saw defendant burn his arms, at 7:30 p.m. the marks were no longer visible and in their place were burns and blisters showing a charring and discoloration of the flesh. Defendant told Shaver that he received the burns at work on a hot pipe.

On arrival at the apartment house, Hardman left defendant in the car in the custody of another officer and handed over to some of the other officers a key to an “Apartment C” which he had taken from defendant. Although Shaver testified that defendant was not provided with a copy of the warrant, Sergeant Ewing testified that at about this time he went down to the ear where defendant was, showed him the search warrant and started to read it, whereupon defendant stated “I can read.” Ewing then showed defendant the original warrant and gave him a copy.

Shaver and another officer then attempted to enter defendant’s apartment by using the key but, finding the door locked on the inside, had to kick it in. They found there one Dolly Gonzalez, a person known to the police as a narcotics addict. Sergeant Ewing and the other officers followed them in and all of the group then commenced a search.

There were four apartments in the building, apartments A and D on the lower floor and apartments B and 0 on the upper floor. Only apartments A and C were occupied—the former by the manager Mrs. Smith and the latter by defendant. Defendant had moved into apartment C approximately a month before; prior to that time it had been vacant for three months.

The search made by the officers revealed the following: Deputy Sheriff Shaver found some toy balloons on an ironing board in the center of the dining area where the woman, Dolly Gonzalez, was standing. Shaver and Hardman found pieces of balloons, bindles, or squares of paper, inside a paper sack used to hold trash in defendant’s kitchen. Four of the used bindles or pieces of paper contained the residue of a powdery substance later found to be heroin. Hardman found some unused bindle papers in the top of a shoe box on top of the refrigerator. Shaver was also present when a garbage can located outside the building marked “Apartment C” was searched and found to contain more pieces of balloons and squares of paper.

In defendant’s room, Sergeant Ewing found some empty balloons on the night stand and a torn piece of the San Jose Mercury-News dated April 21. Sergeant Ewing then searched a back porch connected to defendant’s apartment and the apartment next door, discovered a trap door, and upon searching the interior leading from the trap door, discovered a small piece of brown wrapping paper containing a green leafy substance later identified as marijuana.

Deputy Shaver searched the exterior of the building. His

first discovery on a ledge underneath the building was of two packages of balloons. He then searched a growth of ivy on a fence alongside the building and discovered a bag containing seven balloons which were untied but rolled in such a way that the contents wouldn’t spill out. Each balloon contained paper bindles in each of which there was a powdery substance later identified as heroin.

In the ivy, about 2 feet from where he found the balloons, he also found a package wrapped in a piece of the San Jose Mercury-News dated April 21, 1963, containing a blackened spoon, three hypodermic needles, two eyedroppers and needle holders. The spoon was subsequently tested and the results of the test revealed that traces of heroin remained on the spoon. The piece of newspaper which was wrapping the paraphernalia was subsequently found to match the piece of newspaper discovered in defendant’s bedroom.

Sergeant Hardman found some weapons buried in the ground between the building and the ivy covered fence, about 3 feet from the place where Shaver found the balloons. The weapons which were found were later identified as belonging to one Prank Cortez, the owner of a sports shop at 979 North Main Street, Salinas, from which the weapons, two Derringers and four revolvers, were stolen sometime during April 22 or 23. At least one Derringer and five rifles stolen from the shop were not recovered. Among the rifles was a Browning .22 automatic.

On April 24, 1963, the day after defendant's arrest and the search of his apartment, Sergeant Hardman made a search of defendant’s car and discovered a Browning automatic .22 registration card. In the trunk of the ear he found a shovel which had some soil on it. Hardman took a sample of the soil on the shovel and a sample of soil from the area where he found the weapons buried, together with a sample of grass from that area, and took all three samples to the Criminalistics Laboratory for the Santa Clara County District Attorney’s office. The tests showed that the two samples of soil were very similar and that the grass in both samples was of the same species. No fingerprint tests were taken from the shovel. The registered owner of the car was not the defendant but a Mr. David Rios Garcia, who had been convicted for possession of narcotics paraphernalia.

On April 29, 1963, Deputy Shaver resumed his search of the exterior of the building at 18 South 19th Street with the manager’s permission. He found, buried in the ground, a jar

general rule all that is required by the Fourth Amendment is that the description be “such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended. [Citations.]” (Steele v. United States No. 1 (1925) 267 U.S. 498 , 503 [ 45 S.Ct. 414 , 69 L.Ed. 757 ] ; United States v. Joseph (D.C.E.D. Pa. 1959) 174 F. Supp. 539 , 544, affd. (3d Cir. 1960) 278 F.2d 504 , cert. denied 364 U.S. 823 [ 81 S.Ct. 59 , 5 L.Ed.2d 52 ]; United States v. Thomas (D.C.N.D. Cal. 1963) 216 F. Supp. 942 , 946; United States v. Poppitt (D.C. Del. 1964) 227 F.Supp. 73 , 76; United States v. Klaia (2d Cir. 1942) 127 F.2d 529 , 530; United States v. Falcone (2d Cir. 1940) 109 F.2d 579 , 582.)

However the requirement of the Fourth Amendment that a particular “place” be described in the warrant when applicable to dwellings means a single living unit, that is to say the residence of one person or family, and a warrant describing an entire building issued on probable cause for searching only one apartment therein is void. (United States v. Hinton (7th Cir. 1955) 219 F.2d 324 , 326; United States v. Barkouskas (D.C.Pa. 1930) 38 F.2d 837 , 838; United States v. Chin On (D.C.Mass. 1924) 297 F. 531 , 533; United States v. Innelli (D.C.E.D.Pa. 1923) 286 F. 731 , 732-733; United States v. Mitchell (D.C.N.D.Cal. 1921) 274 F. 128 , 130-131.) Accordingly when a warrant directs a search of a multiple occupancy apartment house or building, absent a showing of probable cause for searching each unit or for believing that the entire building is a single living unit, the warrant is void and a conviction obtained on evidence seized under it cannot stand. (Tynan v. United States (9th Cir. 1924) 297 F. 177 , 179; United States v. Hinton, supra, 219 F.2d 324 , 326; United States v. Poppitt, supra, 227 F.Supp. 73 , 76.) As the court said in Hinton, supra, “ The basic requirement is that the officers who are commanded to search be able from the ‘particular’ description of the search warrant to identify the specific place for which there is probable cause to believe that a crime is being committed. This requirement may be satisfied by giving the address of the building and naming the person whose apartment is to he searched.” (Italics added.) (United States v. Hinton, supra, at p. 326 , citing Kenney v. United States (C.A.D.C. 1946) 157 F.2d 442 ; Shore v. United States (C.A.D.C. 1931) 49 F.2d 519 [ 60 App.D.C. 137 ], cert. denied 283 U.S. 865 [ 51 S.Ct. 656 , 75 L.Ed. 1469 ]; in accord: United States v. Poppitt, supra, 227 F.Supp. 73 , 76.)

Both Shore and Kenney upheld search warrants which, while giving the address of the entire premises involved, contained qualifying language limiting the search to that portion occupied by a particular person. In Shore the warrants directed a search of “the premises of one Prank Shore, said premises being described as 1223 New York Avenue Northwest . . . District of Columbia.” Shore owned the entire building which contained not only his garage and tire shop but a small lunch room occupied by another person. On the third floor two rooms were occupied, one by Shore and the other by his co-defendant. Neither the lunch room nor the upstairs was searched. On the authority of Steele v. United States No. 1, supra, 267 U.S. 498 , the court held that the description sufficiently identified the premises to be searched. In Kenney, supra, the warrant directed a search of “premises occupied by William C. Kenney and over which he has possession and control . . . said premises being described as 2211 N Street, N.W., Washington, D.C. ” The same court as in Shore upheld the warrant, even though the premises contained two apartments, the apartment occupied by Kenney being the only one searched.

In United States ex rel. Sunrise Products Co. v. Epstein (D.C.E.D.N.Y. 1929) 33 F.2d 982 a search warrant directed a search of premises “at Nos. 718-728 Atlantic Avenue, Brooklyn. ...” The firm involved in the search occupied only a part of the fourth floor of the building located at said address. After analyzing a number of cases upholding and striking down search warrants, the court said: “It is seen, therefore, that the authorities are not in agreement as to the requisites of a description of the place named in the warrant; but in none of the foregoing cases does it appear that the legality of any warrant was sustained in the absence of language sufficiently definite to enable the searching officer to identify either the person or the specific premises to be searched. In those eases, for example, which hold a warrant to be valid which directs a search of an apartment house or other building occupied by divers persons, the particular part of such apartment house or building is by limitation confined either to premises therein occupied by a certain stated person or persons, or by designation of a certain part of the building, or as in Steele v. United States No. 1, cited hereinbefore, by a description of the character of the business carried on in the particular premises to be searched.” (P. 984 [267 U.S.].) The court thereupon concluded that the warrant before it did

not fall within the limitations stated because it specified the entire building without naming the firm involved in the search or any other person or firm.

Defendant has in the instant case referred us to, inter alia, three cases discussed by the court in Epstein, namely, United States v. Mitchell, supra, 274 F. 128 ; United States v. Innelli, supra, 286 F. 731 ; and United States v. Chin On, supra, 297 F. 531 . In all three the search warrants were held invalid. It is convenient here to note that in none of the cases was there language in respect to the occupancy of the premises sufficient to limit the description and render the place to be searched identifiable. In Mitchell, supra, the warrant directed the search of the entire premises at 880 Bush Street, San Francisco, an apartment house where defendant occupied only one apartment. In Innelli, supra, the warrant directed the search of premises “described by street and number, and the name of the person to whom the premises then or formerly belonged.” The court reasoned that “the second floor of the premises belonged to a transportation company” and thus the entire premises did not “belong” to the person whose place was intended to be searched. In Chin On, supra, the warrant directed the search of a room or rooms on the third floor of a building at 24 Liberty Street and occupied by a person identified by a certain name. This person actually lived next door so that the erroneous description by occupancy was ineffective to specify any rooms to be searched. As stated earlier, all these three cases fall within the rule that a warrant describing an entire building without more, but issued on probable cause for searching only a part of it, is void.

Our examination of the foregoing authorities convinces us that the following rule may be distilled from Steele, Epstein, Hinton and Poppitt for testing the specificity of a search warrant directed to premises with multiple occupants: If the description in the warrant limits the search to a particular part of the premises either by a designation of the area or other physical characteristics of such part or by a designation of its occupants, the business conducted there, or otherwise so that the officer executing the warrant can with reasonable effort identify the place to be searched, the warrant will meet Fourth Amendment requirements in respect to the description of the place to be searched. In our opinion if measured by the same test it will also meet the corresponding California constitutional and statutory requirements.

We believe that the warrant here under attack meets

outside the building or discovered underground. It is urged that he did not have “exclusive custody” of these places, that a known addict was found in his apartment, and that many visitors had come there. The contention is without merit.

It is well settled that in a prosecution for unlawful possession of narcotics the People must prove (1) that the accused exercised dominion and control over the drug, (2) that he had knowledge of its presence and (3) that he had knowledge of its narcotic character. (People v. Groom (1964) 60 Cal.2d 694 , 696 [ 36 Cal.Rptr. 327 , 388 P.2d 359 ]; People v. Redrick (1961) 55 Cal.2d 282 , 285 [ 10 Cal.Rptr. 823 , 359 P.2d 255 ] ; People v. Winston (1956) 46 Cal.2d 151 , 158 [ 293 P.2d 40 ] ; People v. Gorg (1955) 45 Cal.2d 776 , 780 [ 291 P.2d 469 ]; People v. Roberts (1964) 228 Cal.App.2d 722 , 726 [ 39 Cal.Rptr. 843 ]; People v. Rosales (1964) 226 Cal.App.2d 588 , 591 [ 33 Cal.Rptr. 329 ] ; People v. Villanueva (1963) 220 Cal.App.2d 443 , 449-450 [ 33 Cal.Rptr. 811 ].) These elements may be established by circumstantial evidence and any reasonable inferences drawn therefrom. (People v. Groom, supra, 60 Cal.2d 694 , 696-697; People v. Roberts, supra, 228 Cal.App.2d 722 , 726, and cases there cited; People v. Rogers (1962) 207 Cal.App.2d 261 , 268 [ 24 Cal.Rptr. 341 ].) As the court said in Rogers, quoting from People v. Hurst (1960) 183 Cal.App.2d 379 , 387 [ 6 Cal.Rptr. 483 ] : “The narcotics need not be found on the person of the defendant; it is sufficient if they are deposited in a place under the possession and control of the accused. Exclusive possession of the premises is not necessary nor is physical possession of the drug of the essence. (People v. Robarge, 151 Cal.App.2d 660 , 668 [ 312 P.2d 70 ].)” (207 Cal.App.2d at p. 268; in accord: People v. Roberts, supra, 228 Cal.App.2d 722 , 727.) However “proof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession.” (Pe ople v. Redrick, supra, 55 Cal.2d at p. 285.)

In the instant case there was a residue of heroin in some used bindles among the trash in defendant’s kitchen, a circumstance which defendant does not mention in Ms present argument. The apartment was defendant’s. He was the only person who rented it and the bindles were thus in a place under his control. Unlike People v. Antista (1954) 129 Cal.App.2d 47 [ 276 P.2d 177 ] defendant had a previous connection with narcotics and on the day of his arrest had needle marks on his arms, indicating he was a user of nar

coties. The jury were therefore warranted in concluding that the hindles were in his possession and that he had knowledge of their presence, even though a known addict was found in the apartment at the time of the search. (People v. Van Valkenlurg (1952) 111 Cal.App.2d 337 , 340 [ 244 P.2d 750 ] ; People v. Elliott (1960) 186 Cal.App.2d 178 , 185 [ 8 Cal.Rptr. 795 ] ; People v. Villanueva, supra, 220 Cal.App.2d 443 , 450.)

Heroin was also found on the outside of the apartment house premises. A bag containing balloons with a total of 69 bindles of heroin was found in the ivy. Two feet away, was found the narcotic paraphernalia among which was a spoon with traces of heroin. We have already noted that the newspaper in which these articles were wrapped matched the newspaper in defendant’s apartment. A subsequent search unearthed a jar containing heroin. As a tenant of the building, defendant had access to this area which was directly below his apartment.

As we have said access to the area in question without more, will not support a finding of possession. (People v. Redrick, supra, 55 Cal.2d 282 , 285.) However there are other circumstances, some already noted, which warrant the inference of possession of the heroin and defendant’s knowledge of its presence. Defendant, as we said, was connected with narcotics and had needle marks on his arms. Evidence supportive of the inference that he had attempted to obliterate the needle marks by burning them with a cigarette, establishes at once his connection with narcotics and his consciousness of guilt. It is inferable that the narcotic paraphernalia was his, further confirming his being a user. In addition, the finding of a toy balloon on his person, balloons in his kitchen and dining area, balloons on the night stand near his bed, and packages of balloons underneath the house, considered together with the other balloons and contraband, gives rise to a strong inference that defendant was knowingly in possession of the contraband. Although defendant does not seem to argue the point, all of the above evidence at the same time is susceptible of the inference that defendant was well aware of the narcotic character of the material involved.

We reject defendant’s claims that the contraband found could have belonged to visitors or to the person found in his apartment at the time of the search as arguments more properly addressed to the trier of fact.

With respect to his conviction of the other two offenses, defendant advances bare assertions without any analysis of

the evidence. The offense of receiving stolen property, he says, requires knowledge of its stolen character; the offense of possession of a weapon by an ex-convict requires “actual dominion and control of the weapon by the felon.” As with the heroin, so he argues, his connection with the guns does not rise above the level of pure guess and conjecture. The weapons had been buried near the balloons. A registration card for a Browning automatic, as well as the shovel with soil on it, had been found in the ear used by defendant. He offers no analysis of this evidence. These facts considered with all of the other evidence pertinent to the heroin give rise to a permissible inference of possession. Guilty knowledge requisite to establish the offense of receiving stolen property can be inferred from circumstantial evidence. (People v. Azevedo (1963) 218 Cal.App.2d 483 , 490-491 [ 32 Cal.Rptr. 748 ] ; People v. Scaggs (1957) 153 Cal.App.2d 339 , 352 [ 314 P.2d 793 ] ; see People v. Hartridge (1955) 134 Cal.App.2d 659 , 665 [ 286 P.2d 72 ]; People v. Lodge (1961) 190 Cal.App.2d 865 , 872 [ 12 Cal.Rptr. 352 ].) As was said in People v. Boinus (1957) 153 Cal.App.2d 618 , 622 [ 314 P.2d 787 ], “Possession of stolen property, accompanied by an unsatisfactory explanation of the possession or by suspicious circumstances, will justify an inference that the property was received with knowledge it had been stolen. [Citation.] It is enough if, considering all the evidence, which may be circumstantial, an inference of guilt may be found. [Citation.] ” (In accord: People v. Azevedo, supra, 218 Cal.App.2d 483 , 491; People v. Barnes (1962) 210 Cal.App.2d 740 , 745 [ 26 Cal.Rptr. 793 ]; People v. Lodge, supra, 190 Cal.App.2d 865 , 872; People v. Malouf (1955) 135 Cal.App.2d 697 , 707 [ 287 P.2d 834 ]; People v. Lopez (1954) 126 Cal.App.2d 274 , 278 [ 271 P.2d 874 ].) Here the fact that the weapons were concealed near the place where the contraband was concealed and the connection of the shovel with the method of concealment are suspicious circumstances supporting the inference of knowledge.

Defendant’s incriminating statements.

Finally, defendant contends that the admission in evidence of incriminating statements made by him constitutes reversible error under the rule announced in People v. Dorado (1965) 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ].

Following the decision of the Supreme Court of the United States in Escobedo v. Illinois (1964) 378 U.S. 478 [ 84 S.Ct.

1758 , 12 L.Ed.2d 977 ], the Supreme Court of California held in People v. Dorado, sufra, 62 Cal.2d 338 , 353-354, “that defendant’s confession could not properly be introduced into evidence because (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights.”

Defendant directs our attention to four statements as the basis of his asserted error:

First: After Shaver arrested defendant he questioned him at the scene of the arrest about the needle marks on his arms. Defendant replied that he had no knowledge of any marks. Shortly thereafter, while the officers were waiting for defendant's car to be towed away, Hardman again went up to defendant who was then handcuffed. In response to defendant’s inquiry as to “what it was all about” Hardman asked defendant if he had looked at his arms lately. Defendant replied “I don’t see anything” and denied Hardman’s suggestion that there were needle marks on his arms. The foregoing statements of defendant to the effect that he knew nothing about needle marks on his arms were introduced in evidence by the prosecution. In addition, the prosecution introduced the testimony of the two officers that there were needle marks on his arms as well as evidence, already noted by us, that defendant had attempted to burn away the incriminating marks and that when questioned at the sheriff’s office defendant stated that he had burned his arms at work.

Second: After defendant was arrested and brought back to the vicinity of his apartment house, Sergeant Hardman obtained from defendant’s personal effects the key to the apartment. He asked defendant if he shared the apartment with anyone to which defendant replied that he did not. Upon a further inquiry as to whether the officers who were about to enter, could “expect to find anyone in there,” defendant replied “Only my housekeeper.”

Third: After defendant was brought to the sheriff’s office, Deputy Shaver questioned him about narcotics. It was on this occasion that the deputy again questioned him about the marks on his arms which then appeared as burned areas. During the conversation on the subject of narcotics, defend

all other relevant circumstances” (People v. Stewart, supra, 62 Cal.2d at p. 579) does not compel the conclusion that Shaver’s or Hardman’s questions lent themselves to eliciting incriminating statements. In fact, it seems that it was defendant who began the conversation with Hardman and that the “interrogation” was at that particular moment being conducted by defendant.

In respect to defendant’s explanation about the bums on his arms, made at the sheriff’s office in response to questioning, we have no doubt that the third condition has been met. The statements are obviously not a confession and their admission does not constitute reversible error. (People v. Dorado, supra, 62 Cal.2d 338 , 356; People v. Finn (1965) 232 Cal.App.2d 422 , 427-429 [ 42 Cal.Rptr. 704 ].) Are they otherwise incriminating? Considered by themselves, they are an explanation that what the officers believed to be needle marks were in fact innocent burns. However, the prosecution introduced these statements together with other evidence to contradict them, thus impeaching defendant, showing that he did know about the needle marks, and attempted to conceal them. The statements were thus used to forge a link in the chain of circumstantial evidence showing defendant’s consciousness of guilt. Defendant’s statements were thus “used against him at a criminal trial” in violation of the rule announced in Escobedo v. Illinois, supra, 378 U.S. 478 , 490-491 as interpreted and developed in People v. Dorado, supra, 62 Cal.2d 338 , 353-354.

As to the second statements concerning the use of the apartment and the housekeeper, we do not believe that at the particular time, Sergeant Hardman was carrying on a process of interrogations. Hardman was about to use defendant’s key to enter the apartment and execute the search warrant. As we read the record, he merely wanted to know who might be there. In our view the statements do not fall within the rule.

As to the third statement which was in fact a question by defendant (“how come you don’t have a sale on me”), while this occurred during a process of interrogations as we have explained above and while the rule might apply to the question for what it is worth, we fail to see anything incriminating in it. In context, it seems to be more of a taunt or jibe hurled back at the inquisitor. We find no error in its admission.

Having determined that the admission of one of the first statements was error, and even assuming arguendo that the

admission of all of the first three groups of statements was error, nevertheless we have concluded that such errors were not prejudicial. There is substantial other evidence in the record as to the existence of the needle marks, the fact that defendant probably burnt these areas and the fact that defendant was the sole renter of the apartment. After an examination of the entire cause, including the evidence, it does not appear to us to be reasonably probable that a result more favorable to defendant would have been reached in the absence of the above errors. We cannot say that there has been a miscarriage of justice. (People v. Watson (1956) 46 Cal.2d 818 , 836 [ 299 P.2d 243 ].)

Defendant filed a separate notice of appeal in which he has appealed from the verdict [sic], No appeal lies from a verdict and hence the attempted appeal therefrom must be dismissed. (People v. Gotham (1960) 185 Cal.App.2d 47 , 50 [ 8 Cal.Rptr. 20 ]; People v. Goldstein (1955) 136 Cal.App.2d 778 , 793 [ 289 P.2d 581 ].)

The attempted appeal from the verdict or verdicts is dismissed. The judgment is affirmed.

Molinari, J., and Sims, J., concurred.

A petition for a rehearing was denied May 25, 1965, and appellant’s petition for a hearing by the Supreme Court was denied June 30, 1965.