People v. Toulson

STEPHENS, Acting P. J. Defendant Robert H. Toulson was convicted of illegal possession of marijuana. (Health & Saf. Code, § 11580) by a court sitting without a jury. He appeals from the order granting him probation. (Pen. Code, §1237.) Facts 1 On December 26, 1966, two uniformed and armed Los [183] Angeles City police officers, Jobe and Jenkins, were on duty, and at about 5:30 p.m., went to a hotel at 258 West Eighth Street in San Pedro. Officer Jobe had previously received information from a confidential informant that defendant had narcotics in his possession.* 2 Defendant was known to be living at the hotel, in room 213. At the time he first saw the officers, defendant was in the hallway outside his room, some 60 feet away. He saw them walking up the stairs to the second floor. Defendant was then talking to the landlady at the hotel desk at the front of the hotel and on the second floor, some 15 feet from the stairs. When the officers arrived on the second floor, they observed defendant in the hallway, walking from the front of the hotel and from the area of the stairs leading from the first floor, toward his room. He was some 25 or 30 feet from the room. The door of room 213 was open and the officers were at the door, but had not entered. Persons other than defendant were observed by Officer Jobe in the hotel, and Jobe had walked past some of them in getting to room 213. As defendant approached, Jobe asked him if he was Robert Toulson, and he said he was. Defendant, in response to a question, stated that room 213 was his room. This conversation was had while all three persons, Jobe, Jenkins, and defendant, were in the hallway. Jobe asked defendant “. . . if we [the officers] may come inside and talk to him.” Defendant said, “Yes.” All three entered the room. No statement of reason for the requested conversation had been made by Jobe before they entered the room. After the three men were inside the room, Jobe told defendant that he had information that defendant had narcotics, that he was selling narcotics, and that he might have some in his room. Defendant said this was not true. Jobe asked if he might search the room. Defendant said, “Yes, I want to tell you that I have some Darvon capsules in the room here, but I have a prescription for them.” Jobe said, “. . . if this was all the narcotics he had, that [he, Jobe] was not concerned with the Darvon capsules.” Defendant then said, “Well, go ahead and search,” or “Then you may go ahead and search. ’ ’ [184] As Jobe then walked toward the dresser, defendant "reached over on top of the dresser and grabbed this sandwich bag which was rolled up. He grabbed it in his right hand and put it down by his side.” Defendant was asked what he had there, and he replied, "... something someone had left in the room.” Jobe said, "Let me see it,” and defendant handed it to him. Defendant was placed under arrest after he had handed the bag and its contents to Jobe. The wax sandwich bag was opened by Jobe and was seen to contain three hand-rolled cigarettes. Expert testimony established that the cigarettes contained marijuana. Zig-Zag cigarette papers were found in the pocket of defendant’s trousers and in his dresser drawer. Defendant raises three contentions on this appeal: (1) the evidence failed to show knowledge by defendant of the narcotic nature of that which he possessed; (2) the commitment of defendant was illegal; (3) defendant should have been apprised of his constitutional rights concerning search and seizure before his consent to search could be deemed voluntary and effective. An amici curiae brief was also filed making the contention in behalf of defendant that " [t]he search of appellant’s room and the seizure of the marijuana were illegal and the judgment should be reversed because the United States and California Constitutions require that prior to any search without a warrant the officer must warn the suspect of his constitutional right to refuse permission for the search. ’ ’ In answer to the first contention, it is well established that to justify a conviction of unlawful possession of marijuana, the prosecution must prove actual or constructive possession by defendant and knowledge of its presence and narcotic character. (People v. Powell, 236 Cal.App.2d 881 [46 Cal.Rptr. 415]; People v. Birch, 190 Cal.App.2d 647 [12 Cal.Rptr. 122]; People v. Amos, 190 Cal.App.2d 384 [11 Cal.Rptr. 834].) However, these essential facts may be proved by circumstantial evidence and reasonable inferences which may be drawn from such evidence. (People v. Prescott, 257 Cal.App. 2d 843 [65 Cal.Rptr. 366] ; People v. Schumacher, 256 Cal. App.2d 858 [64 Cal.Rptr. 494] ; People v. Rosales, 226 Cal. App.2d 588 [38 Cal.Rptr. 329].) Defendant’s conduct may be sufficient to show his knowing possession of a narcotic. (People v. Villanueva, 220 Cal.App.2d 443 [33 Cal.Rptr. 811]; People v. Baltazar, 159 Cal.App.2d 595 [323 P.2d 1062].) Defendant’s statement of his occupancy of [185] the hotel room coupled with his conduct of grabbing the wax sandwich bag containing marijuana and attempting to conceal the bag from the officers are sufficient to show defendant’s knowledgeable possession of contraband. (People v. Rightnour, 243 Cal.App.2d 663 [52 Cal.Rptr. 654]; People v. Trujillo, 183 Cal.App.2d 388 [6 Cal.Rptr. 535].) Defendant’s next contention, that his commitment was illegal, is without merit. The correlative issue raised by defendant and amici curiae of whether defendant must be apprised of his constitutional rights concerning search and seizure before consent to search is sought is not applicable, because under the facts there was no true search dependent on consent. Hence, it is not considered. (See People v. Henry, 65 Cal.2d 842, 846 [56 Cal.Rptr. 485, 423 P.2d 557].) Based on information received from a reliable informant, the officers went to defendant’s hotel room. The door was open. Defendant was 25 to 30 feet away, down the hallway. He walked away from the stairs leading to the floor below. He was under no conceivable compulsion to confront the officers. Defendant, by his own choice, approached the officers, admitted his identity, admitted that he was the occupant of the room, and consented to the officers’ entry. To hold that such action is not free and voluntary would effectively hold that officers in uniform could not interview without formalized legal warnings when persons approach them Whether consent to enter was given voluntarily or in acquiescence to implied assertion of authority is ordinarily a factual determination to be made by the trial court. (People v. Michael, 45 Cal.2d 751, 753 [290 P.2d 852]: "Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.” See also Castaneda v. Superior Court, 59 Cal.2d 439, 442 [30 Cal.Rptr. 1, 380 P.2d 641]; People v. Bustamonte, 270 Cal.App.2d 648, 652 [76 Cal.Rptr. 17]; People v. Linke, 265 Cal.App.2d 297, 311-312 [71 Cal.Rptr. 371].) We cannot conceive, under the circumstances here existent, any reasonable question as to the lawfulness of the officers’ entry, or that permission to do so was not voluntarily given. (People v. Ortiz, 210 Cal.App.2d 489, 498 [26 Cal.Rptr. 677]; People v. Cunningham, 188 Cal.App.2d 606, 609 [10 Cal.Rptr. 604]; People v. Howard, 166 Cal.App.2d 638, 651 [334 P.2d 105].) We concur in the trial court’s conclusion. In any event, “Where substantial evidence [186] supports a preliminary finding by the trial court and the implied ultimate finding . . . that a voluntary consent has been given, a reviewing court must accept consent freely given as a fact proven.” (People v. Bilderbach, 62 Cal.2d 757, 762-763 [44 Cal.Rptr. 313, 401 P.2d 921]; People v. Linke, supra, 265 Cal.App.2d 297 at p. 311; People v. Roberts, 246 Cal.App. 2d 715, 727 [55 Cal.Rptr. 62]; People v. Jackson, 191 Cal. App.2d 296, 300 [12 Cal.Rptr. 748].) Following defendant’s statement, “Well, go ahead and search,” and as the officer approached a dresser, defendant grabbed the wax sandwich bag and held it down by his side. This conduct provided the officers with adequate probable cause to arrest defendant, in light of the reliable informant’s assertions of narcotics aetivMy. The totality of the record justifies the conclusion (obviously reached by the trial court) that the officer, with 19 years of police experience, and in the process of investigating a narcotics complaint, had reason to suspect that defendant was then in possession of narcotics.3 Defendant’s attempt to surreptitiously conceal the wax bag constitituted furtive conduct, which is reasonably taken into consideration. (People v. Reyes, 206 Cal.App.2d 337 [23 Cal.Rptr. 705]; People v. Wiley, 162 Cal.App.2d 836 [328 P.2d 823]; People v. Barnett, 156 Cal.App.2d 803 [320 P.2d 128].) The officers’ preliminary request to see the sandwich bag, readily acceded to by defendant prior to his arrest, does not vitiate the legality of his arrest. (People v. Pettyjohn, 172 Cal.App.2d 188 [342 P.2d 416].) The wax bag was in plain and open view, and it is well established that officers need not blind themselves to that which is clearly observable. (People v. Marshall, 69 Cal.2d 51, 56 [69 Cal.Rptr. 585, 442 P.2d 665]; People v. Roberts, 47 Cal.2d 374, 379 [303 P.2d 721]; People v. Superior Court, 261 Cal.App.2d 687, 689 [68 Cal.Rptr. 281].) This was not a search. (People v. Bouchard, 161 Cal.App.2d 302, 305 [326 P.2d 646]; People v. West, 144 Cal.App.2d 214, 219 [300 P.2d 729].) Probable cause to arrest defendant existed prior to the officer’s examination of the contents of the wax bag. The discovery and seizure of the marijuana violated no rights of defendant. (People v. Davis, 235 Cal.App.2d 214, 222 [45 Cal.Rptr. 297].) As was said in People v. Michael, supra, 45 Cal.2d 751, 754: “. . . to hold as a matter of law that the evidence was produced in response to an unlawful assertion of authority [187] would seriously hamper officers in the reasonable performance of their duties. Thus, it is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes. Such inquiries, although courteously made and not accompanied with any assertion of a right to enter or search or secure answers, would permit the criminal to defeat his prosecution by voluntarily revealing all of the evidence against him and then contending that he acted only in response to an implied assertion of unlawful authority. ’ ’ The judgment is affirmed. Peppy, J., concurred. Footnotes [1] Facts most favorable to the prosecution are necessarily set forth. (People v. Green, 13 Cal.2d 37, 42 [87 P.2d 821].) There is a conflict in [183] the evidence as to whether the officers entered the room of defendant before he spoke to them or not. We adopt, as did the trial court, the version that they entered after requesting permission to do so. [2] Though the officer laid such foundation as to justify the conclusion that the information was reliable, cross-examination as to that issue was not permitted by the judge presiding at the preliminary hearing. Since no error is claimed due to this curtailment of inquiry, we accept the officer’s statement that such informant was reliable. [3] The question of the officer’s conclusion at the time of the ineffectual concealment of the narcotic was not asked.