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District Court of Appeal, Fourth District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Lee McCARTHY, Defendant and Appellant.

Cr. 2213.

Decided: September 27, 1965

Edgar G. Langford, under appointment by the District Court of Appeal, San Diego, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Leslie F. Bell, Deputy Atty. Gen., for plaintiff and respondent.

Defendant appeals from a judgment, by the court without a jury, convicting him of possessing narcotics (Health & Saf.Code, § 11500). Four prior felony convictions, including robbery and possession of narcotics, were proved.

A Mr. Boyle reported to the police a grand theft from his automobile. The report described two suspects in a 1955 or 1956 Ford, California license number TNX 355, as the perpetrators. This automobile was reported the same day by the owner to be stolen.

Police investigation produced information that the owner of the automobile was an acquaintance of defendant, who in turn knew Jerry Williams; Mr. Williams was a former employee of the store where Mr. Boyle worked. The police learned from their files that defendant had previous robbery and narcotics convictions. Police record pictures of defendant and Williams were shown to Mr. Boyle, but neither was identified as the perpetrator. The police questioned the owner of the automobile; she stated defendant had loaned the auto to Williams, and defendant and Williams were together the day of the grand theft.

Williams was arrested the second day after the theft; he denied borrowing the car or seeing defendant for ten days. The police then went to defendant's residence and arrested him as a suspect. One officer, a specialist in narcotics violations, found in the trash can in the room where defendant was arrested a paper bag congaining apparatus for the injection of morphine into the body, and a plastic vial on which was the name ‘Mrs. McCarthy.’ In the vial were cotton balls. The officer asked to whom the cotton belonged. Defendant replied, ‘If it's got the name McCarthy on it, they no doubt belong to me.’ The officer examined defendant's arms and found many needle marks.

One of the cotton balls in the vial was later analyzed by a toxicologist and found to contain 0.96 milligrams of morphine. Examination of defendant that day by a police department physician at the jail revealed some 48 needle marks on the veins of his arms; the marks were from less than one day to 14 days old. The physician asked defendant if he had ever used narcotics. Defendant replied that he had used heroin intravenously in 1955. Defendant would not state the cause of the marks on his arms, other than that they were needle marks.

Defendant was not advised of his rights to counsel and to remain silent. The statements of defendant were admitted into evidence by the testimony of the police officer and the police physician. The physician also testified that, in his expert opinion, defendant was a narcotics addict. This opinion was formed because of the marks and scarring on defendant's arms and his evasive replies to the physician's questioning regarding the needle marks. The toxicologist testified to the presence of morphine in the cotton ball.


Defendant contends that the introduction into evidence of the admission concerning the cotton balls was reversible error under People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, as defined in People v. Bilderbach, 62 Cal.2d 757 (62 A.C. 804), 44 Cal.Rptr. 313, 401 P.2d 921. There is missing, however, an essential element of the test stated in Dorado: That there be a ‘process of interrogations that lends itself to eliciting incriminating statements.’ (See People v. Stewart, 62 Cal.2d 571, 578, 579 (62 A.C. 597, 604–605), 43 Cal.Rptr. 201, 206, 400 P.2d 97, 102; People v. Salazar, 235 A.C.A. 803, 45 Cal.Rptr. 537).

Objective analysis of ‘the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances,’ People v. Stewart, supra, 62 Cal.2d 571, 579 (62 A.C. 597, 605), 43 Cal.Rptr. 201, 206, 400 P.2d 97, 102, indicates that such a process of interrogation had not commenced at the time the officer questioned defendant at his residence. (See People v. Salazar, supra, 235 A.C.A. 803, 45 Cal.Rptr. 537; People v. Luckman, 235 A.C.A. 89, 92, 45 Cal.Rptr. 41; People v. Brooks, 234 A.C.A. 791, 799–801, 44 Cal.Rptr. 661.) People v. Bilderbach, supra, 62 Cal.2d 757, 762 (62 A.C. 804, 808), 44 Cal.Rptr. 813, 401 P.2d 921, is distinguishable on its facts.

There being no process of interrogation designed to elicit incriminating statements, the accusatory stage of the proceeding described in People v. Dorado, supra, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, had not yet matured. The voluntary statement was therefore admissible as evidence and there is no error.


Defendant contends that the police physician was under the same constitutional duty to advise defendant of his rights as was any other agent of the prosecution. Assuming this contention meritorious (People v. Montgomery, 235 A.C.A. 737, 743–746, 45 Cal.Rptr. 475), to reverse the judgment any error in receiving into evidence these admissions must be prejudicial. (See People v. Stewart, supra, 62 Cal.2d 571, 581, 582 (62 A.C. 597, 648–649, 43 Cal.Rptr. 201, 400 P.2d 97.) There was no prejudicial error, however, in view of the legal evidence gained at the time of arrest and during the physician's examination, excluding the statements made at this latter time. Our review of the entire cause, including the evidence, leads us to conclude the result would not have been more favorable to defendant in the absence of these statements of defendant at the police station. (Cal.Const., Art. VI, § 4 1/2; People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.)


Defendant contends that the evidence of the discovery of the cotton and other paraphernalia was obtained by an unreasonable search in that there was neither consent to the search nor reasonable cause for defendant's arrest without a warrant. Consent to the search is not at issue; the legality of the search depends on the legality of the arrest. The composite of all the information gained by the police in their investigation of the grand theft offense was adequate to induce, in a reasonable man, a strong suspicion that defendant committed the grand theft. (See People v. Fischer, 49 Cal.2d 442, 446, 317 P.2d 967.) The description of two suspects in a particular type car with exact license number known, the information that defendant and a companion were in possession of that car during the time of the offense, the conflicting statements of the owner of the car and Williams, and defendant's past criminal record, considered altogether, create probable cause for arrest without a warrant.

The search of the room immediately after defendant was arrested was incident to a lawful arrest. The narcotic paraphernalia seized, including the cotton, was properly admissible as evidence. (People v. Fischer, supra, 49 Cal.2d 442, 447, 317 P.2d 967.)


Defendant relies upon People v. Aguilar, 223 Cal.App.2d 119, 35 Cal.Rptr. 516; People v. White, 231 A.C.A. 107, 41 Cal.Rptr. 604; and People v. Sullivan, 234 A.C.A. 647, 44 Cal.Rptr. 524, to establish that the presence of minute quantities of a narcotic in an injection outfit is not sufficient to impute knowledge of its presence or of its character. These cases stand for the proposition that scientific detection alone of minute quantities of a narcotic is not the ultimate test of known possession of the narcotic, and in so doing distinguish People v. Anderson, 199 Cal.App.2d 510, 519, 521, 18 Cal.Rptr. 793.)

The gravamen of the offense includes ‘the awareness of the defendant of the presence of the narcotic,’ (People v. Aguilar, supra, 223 Cal.App.2d 119, 122–123, 35 Cal.Rptr. 516, 519; People v. Sullivan, supra, 234 A.C.A. 647, 649, 44 Cal.Rptr. 524). This awareness or knowledge can be inferred from the factual surroundings. (People v. Aguilar, supra, 223 Cal.App.2d 119, 123, 35 Cal.Rptr. 516.)

‘Since no rule of law exists which requires that one must be caught in the act of committing a crime, and since the proof of the corpus delicti thereof need only be legally sufficient to satisfy the trier of fact that a crime has in fact been committed, I can see no reason why a trier of fact could not very properly conclude that heroin has recently been possessed by a person found under the influence of heroin and in possession of typical paraphernalia suited for the use of the drug and containing the residual and identifiable debris thereof and with cotton still moist therefrom.’ (People v. Sullivan, supra, 234 A.C.A. 647, 652, 44 Cal.Rptr. 524, 527. [concurring opinion].)

The sum total of the recent needle marks on defendant's arms, the morphine in the cotton ball found in a container, and a narcotics injection kit in defendant's bedroom where and when he was arrested by the police is sufficient evidence for the court to conclude that defendant was aware of the presence and character of the morphine.

The judgment is affirmed.

GERALD BROWN, Presiding Justice.

COUGHLIN and WHELAN, JJ., concur.