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District Court of Appeal, First District, Division 1, California.

Lorenzo ROBISON, Petitioner, v. SUPERIOR COURT OF the State of CALIFORNIA, IN AND FOR The CITY AND COUNTY OF SAN FRANCISCO, et al., Respondents.*

Civ. 17641.

Decided: May 22, 1957

Gregory Stout, San Francisco, for petitioner. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

Petition for a writ of prohibition.

Robison was charged with illegal possession of amidone, a narcotic, in violation of section 11500 of the Health and Safety Code. By this proceeding he challenges the sufficiency of the evidence to hold him to answer.

The facts, disclosed at the preliminary hearing, are that one Hall occupied premises at 2945A Bush Street, San Francisco. On the day in question two purchases of heroin were made from these premises by a police informer. The officers arrested Hall and proceeded to search his apartment and the adjoining premises. They found some marked money used by the informer in Hall's apartment and also found some narcotics there and in the adjoining apartment. While the police were still in Hall's apartment, and about an hour after the police entry, Robison knocked on the apartment door. He was invited to enter by a policeman, and greeted several of the officers then present by name. The officers immediately arrested Robison and searched him. In his jacket pocket was discovered a paper-wrapped tablet which turned out to be an illegal narcotic. Robison denied knowing that he had such a tablet in his possession and denied knowing what the tablet was.

It is obvious that, so far as the record discloses, when Robison was arrested and searched, all that the officers knew was that Robison was a visitor to a place where narcotics had recently been sold. Mere presence of the accused, without more, is legally insufficient to establish reasonable and probable cause. As was said by this court in People v. Yet Ning Yee, 145 Cal.App.2d 513, 302 P.2d 616, 618: ‘At the moment of search the only fact bearing on the question was that defendant was on premises which the officers had reason to believe contained opium. That fact alone would not justify either his arrest or a search of defendant's person. [Citations.] There was nothing to indicate to the officers that defendant was anything other than a casual visitor to the room.’ See also People v. Soto, 144 Cal.App.2d 294, 301 P.2d 45; People v. Kitchens, 46 Cal.2d 260, 294 P.2d 17; People v. Schraier, 141 Cal.App.2d 600, 297 P.2d 81.

These authorities would be conclusive on the issue of lack of reasonable and probable cause for the arrest and search were it not for the provisions of section 11556 of the Health and Safety Code, as amended in 1953. That section provides: ‘It is unlawful to visit or to be in any room or place where any narcotics are being or have recently been unlawfully smoked or used.’ This section has been in our law, in one form or another, since 1940. (1st Ex.Sess.1940, Chap. 9, § 31, p. 23.) If it be assumed that one who visits a place where narcotics have recently been ‘sold’ is visiting a place where narcotics have been recently ‘unlawfully smoked or used,’ a point not without doubt, the statute purports to make mere presence on the premises a public offense, which would, of course, if the statute is constitutional, justify an arrest and search without a warrant. In the recent case of Bonwell v. Justice Court, 148 Cal.App.2d 906, 307 P.2d 716 (hearing denied) the statute was held unconstitutional for the very reason that it purports to prohibit persons from entering such premises no matter how innocently or for even a lawful purpose. We agree with the Bonwell case.

Without the statute, the proof at the preliminary merely showed ‘mere’ presence at a place where narcotics were recently sold. That is not enough to constitute reasonable and probable cause. Thus, there was a complete failure of proof on the issue of reasonable and probable cause.

Let the writ of prohibition issue as prayed for.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.

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