People v. Murillo

The defendant was charged with a violation of section 11500.5 of the Health and Safety Code—possession for sale of a narcotic (heroin) other than marijuana. He was also alleged to have had two prior felony convictions. Sometime after his original pleas were entered, he finally admitted the second prior conviction, and the district attorney then moved to dismiss the first charge of a prior conviction. The court, sitting without a jury, found the defendant guilty, and, when he waived a probation officer’s report and requested immediate sentence, he was sent to state's prison.

Only one point is made on the appeal, namely, that the court erroneously admitted in evidence the contents of an attaché case, belonging to the defendant; it was locked and in the apartment of a woman named Tony Lira, who, unknown to the defendant, was an informant of the enforcement agents; the officers did not have a search warrant and the defendant did not give specific permission to unlock the case; entry into it was made by means of a key removed, without permission, from the defendant’s pocket by one of the law enforcement agents. In the attaché case, was a rubber contraceptive containing a large quantity of heroin and also an improvised hypodermic syringe, including an eye dropper and a needle, apparently used by the defendant for the purpose of injecting heroin into his own arm. If the heroin taken from the locked case was properly admitted in evidence, there was an ample showing to support the conviction; in its absence, however, there was a failure of sufficient proof on the charge that the defendant not only had heroin in his possession, but that it was in such quantity that, inferentially, he intended it for sale. (People v. Coblentz, 229 Cal.App.2d 296 , 320 [ 40 Cal.Rptr. 116 ]; People v. Aguilar, 232 Cal.App.2d 173 , 178 [ 42 Cal.Rptr. 666 ].)

The defendant thus relies upon his claim that he was not afforded the constitutional protection to which he was entitled. (U.S. Const., 4th and 14th Amends.; Mapp v. Ohio, 367 U.S. 643 [ 81 S.Ct. 1684 , 6 L.Ed.2d 1081 , 84 A.L.R.2d 933 ]; People v. Cahan, 44 Cal.2d 434 [ 282 P.2d 905 , 50 A.L.R.2d 513 ]; Manwaring, California and The Fourth Amendment, 16 Stan. L. Rev. 318 , 322.)

Murillo had an apartment in Oakland, and he rather frequently occupied rooms at several different motels, but for approximately a month before his arrest he had been living in her apartment with Tony Lira, who, unquestionably, during all of that time was an informant of the enforcement officers.

On January 1, 1965, agents of the Bureau of Narcotic Enforcement placed Tony Lira’s apartment under surveillance; at about 6 o’clock in the evening, defendant was watched as he left her dwelling and entered a taxi. The car was stopped by agents Sherwood and Lacey at Fresno and Cambridge Streets; armed with a search warrant directed toward the person of the defendant, the agents searched him but found no contraband; however, judging from the appearance of the defendant and the fact that he had fresh needle marks on his arm, the officers inferred that he was under the influence of narcotics and arrested him. The subsequent search of the apartment hereinafter referred to could not be justified

Agent Lacey went to the residence at 2640 Berkeley Street about 200 or 300 yards from the intersection where the arrest was made; he joined agents Newland and Velasquez; they knocked at the door and an unidentified person from inside said, “Who is it?” Velasquez then identified himself as a narcotics officer and asked permission to come into the house to find out whether or not it would be all right to conduct a search; Velasquez, Newland and Lacey entered pursuant to permission; Newland went to the front room where he talked to Tony Lira and obtained her general consent to search the apartment; Lacey walked through the front room into a hallway and looked into several of the rooms; in the southwest bedroom he observed a green attaché case on the shelf. He put the case on the bed, intending to open it, but discovered that it was locked; he notified Newland, who was the senior officer in charge of the search, and immediately left the dwelling to see the defendant, thinking that he might have a key; Lacey met Agent Sherwood and his prisoner outside of the apartment; the agents took Murillo into the bedroom where the ease was resting on the bed; without permission, Newland reached into the defendant’s pocket and removed his keyring on which there was a key which fitted the ease; he opened the attaché case in the presence of the defendant and found the narcotic; the defendant did not authorize the removal of the key from his pocket, or its use, or give consent to the search; there was no warrant allowing a search of the house, or any of its contents.

During the trip to Mexico, Tony Lira had kept some of her toilet articles in the ease. But she had removed all of her personal property earlier on the day of defendant’s arrest before the officers arrived. Unknown to the officers, the defendant had given Tony Lira a key to the attaché case on the day in question, but she did not tell the officers that she had a key, and it was never used.

Summarizing, the evidence shows that the defendant had been living for approximately a month in the apartment of Tony Lira. During the Mexican visit, he carried along an attaché case in which the woman bad placed various toilet

The question arises, then, whether the mere fact that, unknown to the officers, Tony Lira also had a key which'fitted the case requires a different assessment of the legal rights involved. We think that it does not, and that there was no legal consent by any one to open the locked case; in conformity with the law, the officers should have applied for a search

The leading case in this jurisdiction affirming the principle that the officers had no right to open defendant's locked receptacle is People v. Cruz, 61 Cal.2d 861 , 866-867 [ 40 Cal.Rptr. 841 , 395 P.2d 889 ], where the court states: “Nor can the search in the case at bench be justified on the ground of consent. Before undertaking the search the officers had learned that defendant and Ann were merely transient guests in the apartment. The officers had neither asked for nor received defendant's consent, express or implied, to search through any of his belongings on the premises. The general consent given by Atm and Susan that the officers could ‘look around’ did not authorize Agent Van Baam to open and search suitcases and boxes that he had been informed were the property of third persons. . . .

£ £

“Agent Van Baam failed to make such simple inquiries, but instead carried out a general exploratory search of (as he described it) ‘ every possible place that there was that conceivably narcotics may have been concealed [in]. ’ It follows that the search and seizure of defendant’s blue suitcase and its contents cannot be sustained on consensual grounds, and its admission into evidence over defendant’s timely objections was error under both federal and state law. (Holzhey v. United States (5th Cir. 1955) 223 F.2d 823 , 825-827 [2]; United States v. Blok (D.C. Cir. 1951) 188 F.2d 1019 , 1020 [2] -1021 [7]; see also Tompkins v. Superior Court (1963) supra, 59 Cal.2d 65 , 68 [5]-69 [6], and cases there cited.) ”

(See Holzhey v. United States, 223 F.2d 823 ; United States v. Blok, 188 F.2d 1019 .)

Marshall v. United States, 352 F.2d 1013 , does not inyolve a locked container, and so, factually, for that reason, if no other, it does not constitute persuasive contrary authority.

The officers knew that defendant was living with Tony Lira in her apartment and that the attaché ease belonged to appellant. No matter what the previous authority of Tony Lira was to authorize a search in the defendant’s absence, he was personally present in the room where the officers opened the locked case, and he then had the constitutional right to the preservation of his privacy. In People v. Frank, 225 Cal.App.2d 339 , 343-344 [ 37 Cal.Rptr. 202 ], the court held: “Unlike the factual situations existing in the Gorg [People v. Gorg, 45

“There was evidence which, if believed by the trier of fact, would have sustained an inference that the defendant, upon being confronted in his room by the officers, did not consent to the search but insisted that the officers first have a search warrant. His constitutionally protected right of privacy was not so under the control of the person from whom he rented the room that he could not personally assert it under the circumstances of this case. If he did not consent to the search, it was unlawful. (See Tompkins v. Superior Court, 59 Cal.2d 65 , 69 [ 27 Cal.Rptr. 889 , 378 P.2d 113 ].) The trial court erroneously failed to determine that issue of consent."

Tompkins v. Superior Court, supra, 59 Cal.2d 65 , 69, pointed out: “Joint occupancy of property, particularly residential property, obviously demands reasonable restrictions on the right of each joint occupant either by himself or through another to exercise full control over the property at all times regardless of the wishes of another joint occupant present on the premises. A joint occupant’s right of privacy in his home is not completely at the mercy of another with whom he shares legal possession. (See Verdier v. Verdier, 152 Cal.App.2d 348 , 352-353 [ 313 P.2d 123 ]; People v. Weaver, 241 Mich. 616 [ 217 N.W. 797 , 799, 58 A.L.R. 733 ]; United States v. Blok, 188 F.2d 1019 , 1021; Holzhey v. United States, 223 F.2d 823 , 826-827; 2 Tiffany, Real Property (3d ed.) §457, pp. 274-275.) Accordingly, we hold that one joint occupant who is away from the premises may not authorize police officers to enter

The defendant’s right to the preservation of his privacy was not effectively recognized by the law enforcement officials; there is here a clear case of illegally-seized evidence as to which a timely and proper objection was made during the trial.

People v. Fierro, 236 Cal.App.2d 344 , 347 [ 46 Cal.Rptr. 132 ], holds: “The purpose of the rule excluding illegally seized evidence is deterrence of the lawless acts of federal and state officials. (Mapp v. Ohio, 367 U.S. 643 , 648 [ 81 S.Ct. 1684 , 6 L.Ed.2d 1081 , 84 A.L.R.2d 933 ]; People v. Cahan, 44 Cal.2d 434 , 448-449 [ 282 P.2d 905 , 50 A.L.R.2d 513 ].)” (See also People v. Peterson, 233 Cal.App.2d 481 , 493-494 [ 43 Cal.Rptr. 457 ].) As is said in People v. Thomsen, 239 Cal.App.2d 84 , 92 [ 48 Cal.Rptr. 455 ]: “Erroneous introduction of illegally-seized evidence does not require a reversal unless on the entire record of the case, including the evidence, the reviewing court concludes that a miscarriage of justice has ensued.” (See also People v. Cruz, supra, 61 Cal.2d 861 , 867; People v. Parham, 60 Cal.2d 378 , 385-386 [ 33 Cal.Rptr. 497 , 384 P.2d 1001 ].) The exclusion of the improperly admitted evidence would leave the record without adequate proof that heroin was possessed for the purpose of sale; we conclude, therefore, that the erroneous ruling resulted in a miscarriage of justice (Cal. Const., art. VI, § 4½).

The judgment is reversed.

Brown (R.M.), J., and Stone, J., concurred.