People v. Gaines

265 Cal. App. 2d 642, 71 Cal. Rptr. 468, 1968 Cal. App. LEXIS 1659
CourtCalifornia Court of Appeal
DecidedSeptember 12, 1968
DocketCrim. No. 6381
StatusPublished
Cited by15 cases

This text of 265 Cal. App. 2d 642 (People v. Gaines) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gaines, 265 Cal. App. 2d 642, 71 Cal. Rptr. 468, 1968 Cal. App. LEXIS 1659 (Cal. Ct. App. 1968).

Opinion

CHRISTIAN, J.

Defendants were convicted of possession of heroin (violation of Health and Safety Code section 11500). On appeal, they contend that in their non jury trial the court’s finding of guilt depended upon evidence procured [644]*644as- the result of an unlawful search. Our holding is ■ to the contrary.

■ On June 8, 1966, at approximately 9 p.m., Inspectors Martin, Lawler, and Arrieta of the San Francisco Police Department went to an apartment building at 1040 Steiner Street, San Francisco, to conduct a narcotics investigation. The investigation was. based on information received from an untested informant that appellant Jackson was selling narcotics in his apartment in that building. The police inspectors did not have either a warrant for the arrest of appellant J ackson or a warrant to search his apartment.

The officers were admitted into the apartment house by the manager, who confirmed the fact that appellant J ackson occupied an apartment there. The consent of the manager to enter the building was given freely. She provided the officers with a key to the apartment directly across the hallway from Jackson’s apartment. The officers entered and maintained surveillance of Jackson’s apartment. Inspector Martin took a position behind the slightly opened door of his hiding place, where the doorway to Jackson’s apartment could be directly viewed without detection by anyone entering or leaving Jackson’s apartment. The hallway separating the doorways of the opposite apartments was approximately three to five feet wide.

After keeping watch for approximately 10 minutes, Inspector Martin observed appellant Gaines approach and be admitted to Jackson’s apartment. Inspector Martin recognized Gaines at that time as a man whom he had previously arrested for a narcotics violation. After 15 or 20 minutes had elapsed, Gaines emerged from Jackson’s apartment. As Gaines stepped into the hallway immediately outside Jackson’s apartment, Inspector Martin opened his door wide, and moved rapidly into the hallway towards Gaines. As Inspector Martin entered the hallway, Gaines looked in his direction, then made a backwards throwing motion with his left hand, crouching at the same time. Inspector Martin observed a small and compact, light-colored object leave Gaines’ left hand as the throwing motion was made. Inspector Martin immediately concluded that the parcel contained heroin. It bounced back into Jackson’s apartment. Looking past Gaines, Inspector Martin saw Jackson inside the doorway to his apartment holding the door open. Inspector Martin stepped rapidly towards Gaines in an attempt to retrieve the thrown object, momentarily detaining Gaines and thereby inflicting a scratch over his eye. Going past Gaines, Inspector Martin entered the apartment and retrieved the thrown' object, despite Jackson’s belated-attempt [645]*645to close the door. Inspector Martin was able to keep his eye on the object during the entire sequence of events in which he retrieved it. The thrown object was seen by Inspector Martin to be a contraceptive containing a powdery substance which proved to be heroin.

After entering Jackson’s apartment and fielding the contraband, Inspector Martin observed in the kitchen area “a piece of plastic lying on top of the table with some powdery substance on top of it and also saw a hypodermic needle . . . which was attached to an eye dropper which contained a brownish type fluid.” A subsequent chemical analysis showed that the powdery substance contained heroin and that the brown liquid contained an opium derivative. A strainer and toy balloons were also observed by Inspector Martin on the kitchen table. Inspector Martin testified that in his opinion these items were narcotics paraphernalia such as are used for the packaging of heroin. After viewing all these incriminating items, Inspector Martin placed appellants Gaines and Jackson under arrest.

Appellant Gaines contends that his arrest was consummated upon Inspector Martin’s sudden confrontation of him in the hallway. Probable cause for an arrest coneededly did not exist at that time; thus, it is argued, Gaines ’ ensuing furtive conduct (the throwing motion), having been evoked by unlawful police action, the fruit thereof was inadmisible (citing People v. Harvey (1956) 142 Cal.App.2d 728, 731 [299 P.2d 310] ; cf. People v. Williams (1963) 220 Cal.App.2d 108, 114 [33 Cal.Rptr. 765]).

In People v. Harvey, supra, the police approached the defendant, who was standing on a public street at night under suspicious circumstances, without probable cause for arrest. Although recognizing that an interrogation of defendant could properly have been made, the court held that the officers’ approach was the first step in effectuating an arrest, and that the furtive conduct evoked thereby could not justify the arrest. This conclusion was apparently based on two factors. First, the officers testified that they had expressed to each other before the approach their intention of placing the suspect under arrest. Second, their first act was not to interrogate the suspect; rather, they took him into custody after a struggle and took a package of marijuana out of his hand.

But in People v. Poole (1959) 174 Cal.App.2d 57 [344 P.2d 30], police officers parked their automobile near the defendant, who was walking along the street. One officer alighted, [646]*646then called to and approached defendant. Holding that Under the evidence the approach was for investigative purposes, not to make an arrest, the court distinguished People v. Harvey, supra, and held that ensuing furtive conduct justified an arrest with the result that evidence seized in an incidental search was admissible.

In the present case, the record contains no direct evidence concerning Inspector Martin’s intention in confronting appellant Gaines. Appellants contend, however, that the circumstances of the confrontation indicate that an arrest, not an interrogation, was contemplated. But those circumstances also support a contrary conclusion. Gaines, who was known to the officers as a narcotics violator, was seen leaving an apartment which the inspectors were investigating for suspected narcotics traffic. Interrogation of Gaines under such circumstances was proper. (People v. Perez (1966) 243 Cal.App.2d 528, 532 [52 Cal.Rptr. 514]; People v. Mora (1965) 238 Cal.App.2d 1, 3 [47 Cal.Rptr. 338].) The determination of the trial court that the first contact was not an arrest is supported by substantial evidence and cannot be challenged on appeal, (cf. People v. Stout (1967) 66 Cal.2d 184, 192 [57 Cal.Rptr. 152, 424 P.2d 704].)

Once Gaines had thrown back into Jackson’s apartment a parcel which the officers reasonably believed contained contraband, the officers were possessed of the following information: (1) an untested informant’s statement that Jackson was selling narcotics in the apartment under surveillance; (2) verification by the apartment building manager that Jackson resided in the apartment under surveillance; (3) entry of appellant Gaines, whose prior arrest for a narcotics violation was known to the inspectors, into Jackson’s apartment; (4) furtive disposal by Gaines of a small, round object into Jackson’s apartment when confronted by police upon his departure from the apartment.

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People v. Gaines
265 Cal. App. 2d 642 (California Court of Appeal, 1968)

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Bluebook (online)
265 Cal. App. 2d 642, 71 Cal. Rptr. 468, 1968 Cal. App. LEXIS 1659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gaines-calctapp-1968.