People v. Wright

273 Cal. App. 2d 325, 78 Cal. Rptr. 75, 1969 Cal. App. LEXIS 2171
California Court of Appeal·Decided May 23, 1969·No. Crim. 14408·Published·Cited by 21 cases

Opinion

COBET, J.

This appeal raises two principal questions. The first is whether a narcotics officer, without giving the warnings and obtaining the waiver required by Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], may interrogate a tenant of an apartment regarding his use of narcotics and whether any narcotics are then in the apartment at a time when he has probable cause to arrest him for a narcotics violation. We answer this question in the negative. The second question is whether such Miranda error requires reversal under Chapman v. California, 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824], when it is followed by a lawful search of the apartment incident to the immediately subsequent arrest of appellant upon probable cause, Miranda warnings to and the requisite waiver by appellant, his subsequent station house confession very shortly thereafter, and finally, his taking the stand in an effort to exculpate himself. We reluctantly answer this question in the affirmative.

*329 We discuss and decide the admissibility of the contraband, appellant’s second or station house confession and his testimony for guidance of the lower court on the retrial of this case.

The Appeal Lies

This is an appeal taken in 1967, from an order denying James Patrick Wright, the appellant, a new trial. The order followed a jury trial in which appellant was convicted of violation of Health and Safety Code section 11500—the illegal possession of heroin. Following this order criminal proceedings were adjourned without a final judgment and the initiation of narcotics addiction proceedings pursuant to Welfare and Institutions Code, section 3051, was ordered. Under these circumstances the order denying appellant a new trial was then appealable. (See People v. Sweeting, 256 Cal.App.2d 636, 637 [64 Cal.Rptr. 401].)

The Facts

On April 10, 12, and 13, 1967, between approximately 6:45 and 10:15 a.m., appellant’s wife made' seven telephone calls from the apartment and in the hearing of one William Scofield. During these calls she spoke to a “Bobby” or a “Jack” and asked for a nickel’s worth or $5 worth of “stuff” to relieve the sickness of herself and her husband. At the time Mrs. Wright made these calls her eyes were very bloodshot and watery and she was unable to sit still. Scofield, who lived in the same apartment house as the Wrights and who was an off-duty deputy sheriff, made detailed written notes of Mrs. Wright’s portion of these conversations and then informed Deputy Sheriff Rodriguez of the Narcotics Detail of their substance. Rodriguez relayed this information to his partner, Eldon Burkett, a trained and experienced narcotics officer.

Shortly before 4 p.m. on April 21, 1967, Burkett and Rodriguez came to the apartment house where both Scofield and the Wrights lived. After rechecking with Scofield the information about the Wrights he had given them, the two officers proceeded directly to the Wrights’ apartment where they were admitted by Mrs. Wright after they had identified themselves. Rodriguez inquired of the Wrights', who were in the living room, whether there was anyone else in the apartment. Appellant replied “Bobby” and pointed toward the bathroom. Rodriguez went over to the bathroom and requested *330 whomever was inside to come out. Robert Valdez came out.

Rodriguez and Valdez then talked together while Burkett talked to appellant. Burkett told appellant that he had inform mation of possible narcotics use on the premises and asked appellant if this were so. Appellant replied in the affirmative. Burkett then asked appellant if he used narcotics and appellant again replied yes. Burkett next asked if he could see appellant’s arms. As appellant started to push up one of his sleeves, Burkett asked appellant if there were any narcotics on the premises at that time. Appellant replied that there were. According to Burkett, appellant appeared all this time to be speaking ‘ ‘ freely and voluntarily. ’ ’

Burkett immediately asked where the narcotics were. Appellant said that he would have to ask his wife. Appellant then turned to Mrs. Wright and said, “Where is the stuff?” Mrs. Wright looked at him “with a blank look.” Appellant said, “Tell the man where the stuff is.” She then pointed toward the kitchen and said, “It is under the sink.” Burkett walked into the kitchen, which was visible from the living room where this conversation had taken place, opened the cupboard beneath the sink, and looked inside. Mrs. Wright then said, “No, it is not down below. It is on a little shelf under the sink.” Burkett then saw a small shelf just inside the cupboard door, where he found a small black purse.

This purse contained, in addition to an employee payment voucher of Mrs. Wright’s and a rent receipt of hers, a spoon, some balloons, a medicine dropper, and two hypodermic needles. The end of the spoon appeared to have been burned and the bowl of the spoon contained a. powdery residue. One of the balloons also contained some powder. Burkett formed the opinion, based on his training and experience as a narcotics officer, that this equipment was a narcotics injection outfit, that the powder in the balloon was approximately 4 grams of heroin, and that the powdery residue in the spoon possibly contained morphine.

Burkett asked the Wrights and Valdez who owned this contraband and appellant replied, “It’s mine.” Burkett then placed the Wrights and Valdez under arrest and advised them that they had a right to remain silent and to have an attorney during all proceedings, that if they were without funds an attorney would be furnished them free of charge by the state, and that anything they said would be used against them. 1 He *331 then asked each of the three if each understood this advice and each ■ responded in the affirmative. The powder in the balloon was later established to be heroin.

Appellant, Mrs. Wright, and Valdez were then taken to the Lakewood sheriff’s station. On the way, at appellant’s request, the officers stopped at his brother’s residence and left the Wrights’ approximately year-old daughter with a woman who was apparently appellant’s sister-in-law.

The two officers booked the Wrights and Valdez at the Lakewood station. Burkett then questioned appellant and his wife together for a half to three-quarters of an hour. Appellant stated that he had been using narcotics approximately five months, had not taken narcotics during the previous week, and had been seeing a doctor about his addiction problem. Mrs. Wright stated that she had started using narcotics about the same time as her husband and that they had been taking •codeine, a synthetic opiate prescribed by a doctor. Appellant admitted, however, that he, and possibly Valdez, had “fixed” at about 2 p.m. that afternoon from five grams of heroin he had purchased from Valdez for $50. Mrs. Wright and Valdez also admitted they had used heroin that day.

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People v. Wright, 273 Cal. App. 2d 325, 78 Cal. Rptr. 75, 1969 Cal. App. LEXIS 2171 (Cal. Ct. App. 1969).

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