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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Uhlan Eric CRISP, Defendant and Appellant.

Cr. 14100.

Decided: December 20, 1968

Daniel L. Dintzer, Los Angeles, under appointment by the Court by Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., Elizabeth Miller, and Gary J. Freedman, Deputy Attys. Gen., for plaintiff and respondent.

 On May 17, 1962, defendant was convicted by the court of possession of heroin (Health & Saf.Code § 11500).   Thereafter, criminal proceedings were adjourned and he was committed for treatment for narcotic addiction.   Approximately four and one-half years later, on November 23, 1966, criminal proceedings were resumed and, on January 13, 1967, defendant was sentenced to prison.   He appeals from the judgment of conviction.1

The facts may be summarized as follows:

At about 8 p.m. on March 14, 1962, John Olsen, an experienced narcotics officer with the Los Angeles Police Department, went to a Pacoima trailer park and knocked on the door of the house trailer in space number 2.   Defendant opened the door.   Olsen had been told by the Narcotics Detail in Burbank that defendant had a past narcotics record and that he was using and dealing in narcotics before he moved out of Burbank.

When defendant opened the door Officer Olsen was standing on the trailer step.   Defendant was holding a small dog in his arms and his left arm was extended out toward the officer.   Defendant's shirt sleeve was pulled back and Olsen observed what appeared to be hypodermic injection needle marks over the veins of his left arm in the area of his wrist.   They were “the kind of marks” that are commonly made by users of heroin.   When the officer identified himself defendant stepped back “a foot or so” inside the trailer.   The officer looked at defendant more closely and stated to him, “Crisp, I thought you were going to stop using narcotics after you left Burbank.   You are under the influence of narcotics now.”   Defendant made no reply.   Olsen then asked defendant to step further back in the trailer.   Defendant turned and began to walk toward the rear of the trailer.   The officer told him “not too fast” and stepped inside.   Defendant's back was toward him and he stopped defendant from going any further.   He had observed a bulge in defendant's shirt pocket and decided to check it.   He removed a folded up paper bindle which contained a “whitish powder.”

After finding the bindle of powder, Officer Olsen had a “conversation” with defendant.   In the conversation defendant freely and voluntarily stated that the powder in the bindle was heroin.   He said that it was all that was left of $25 worth of heroin which he had purchased;  that a friend had taken $10 worth earlier that evening.   Defendant also stated that his “outfit” was in the bathroom of the trailer.   After Olsen located the outfit, defendant showed him parts of a balloon secreted in a magazine.   He stated that he had taken the heroin out of the balloon and had placed it in the bindle.   Olsen observed that there was a white powder residue inside the balloon.

At the police station Officer Olsen examined defendant's arms more closely including the areas of his arms which had been covered by his shirt.   He found many, many marks;  “a long track.”

In his testimony defendant gave an account of what occurred which was substantially the same as that given by the officer except for the matter of the location of his shirt sleeve when he first opened the house trailer door.   He denied that his sleeve was above the area of his wrist.

 Defendant maintains (1) that the People did not establish that the officer had probable cause for the arrest before he entered his house trailer and searched him and, (2) that the evidence of his subsequent statement to the officer was introduced in violation of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.   We have concluded that, while defendant's first contention lacks merit, his second point is well taken and that a reversal of the judgment is required.

Regarding the probable cause issue, defendant relies on People v. Ferguson, 214 Cal.App.2d 772, 29 Cal.Rptr. 691.   In that case we held that a finding of probable cause for arrest for a narcotics offense was not supported by evidence which showed only that the officer had observed what appeared to be hypodermic needle marks on the defendant's arrest was not based solely on the officer's observation of the marks on defendant's wrist.   Officer Olsen testified that he was informed through police channels that defendant was a previous narcotics offender.   When the officer observed the marks he “ * * * could reasonably have believed that the defendant's status had not changed.  * * * ”  (People v. Jaurequi, 142 Cal.App.2d 555, 561, 298 P.2d 896, 900;  see also People v. Ferguson, supra, 214 Cal.App.2d at pp. 775–776, 29 Cal.Rptr. 691.)

 Defendant argues that the officer was not justified in coming to his house trailer and invading his privacy in the first place.   However, “ ‘it is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes'.”  (People v. Martin, 45 Cal.2d 755, 761, 290 P.2d 855, 858.)   In the proper discharge of his duties as a narcotics officer, Olsen was justified in calling on defendant after being informed by the Narcotics Detail of the city where he had formerly lived, that he had been using and dealing in narcotics while he was living there.

Contrary to the suggestion of defendant, the People did not rely on information supplied by an untested informant in establishing probable cause.   In his testimony on direct examination the officer mentioned that he had received a phone call concerning defendant shortly before going to see him at the trailer.   On cross-examination, after it was elicited that the call was from an informant whose identity the officer refused to divulge, the prosecutor informed the court that the People were not relying on the information supplied by the caller.   Thereupon, the court directed the questioning to what the officer had learned about defendant through police records.   The matter of the informer was dropped.   The information received from the informer was neither considered by the court nor relied on by the defense as a basis for urging the illegality of the arrest.

Turning to defendant's second contention, it is to be observed that, since this case was tried prior to the Escobedo and Dorado decisions, the record is, quite understandably, lacking in detail regarding the circumstances surrounding defendant's statement to Officer Olsen.

 Where the record fails to show that a defendant was advised of and thereafter waived his constitutional rights to silence and counsel (as required by the Escobedo and Dorado rulings), evidence of any statements made by him after the advent of the “accusatory stage” of the proceedings, is inadmissible.  (People v. Stewart, 62 Cal.2d 571, 577, 43 Cal.Rptr. 201, 400 P.2d 97.)   That stage is reached where the defendant has been arrested and a process of interrogations tending to elicit incriminating statements has been undertaken.  (People v. Stewart, supra, at p. 577, 43 Cal.Rptr. 201, 400 P.2d 97.)

 Although the record in this case does not show, we may assume that defendant was placed under arrest when the officer first entered the trailer after seeing the needle marks on his wrist and having concluded that he was then under the influence of narcotics.   Without doubt, he was under arrest after the officer's search of his person had uncovered the bindle of white powder.

 The officer testified that, after this find, he had a conversation with defendant.   Although the innocuous word “conversation” is used, and the officer testified that defendant's statements were made freely and voluntarily, the record fails to show that the statements were volunteered and not the product of a forbidden interrogation.

 “ ‘When a record, * * * reveals that the defendant has been arrested, has [thereafter] been questioned about the offense which occasioned the arrest, and no evidence indicates that the statements are in the nature of spontaneous disclosures, we do not presume that such a process of interrogations has not been undertaken.’  [Citation.”  (People v. Doherty, 67 Cal.2d 9, 15–16, 59 Cal.Rptr. 857, 861, 429 P.2d 177, 181.)   Stated another way, the prosecution bears the burden of proving that the statements were not the fruit of such an interrogation.  (People v. Charles, 66 Cal.2d 330, 340–341, 57 Cal.Rptr. 745, 425 P.2d 545.)   It has not carried that burden here.   We may not fill the hiatus in the record with purely speculative surmises.

 Since there is no evidence that defendant was forewarned that he had a right to counsel and to remain silent, or to show a waiver of these rights, the evidence of his statements was inadmissible.  (People v. Dorado, supra, 62 Cal.2d at p. 353, 42 Cal.Rptr. 169, 398 P.2d 361.)   And, since the statement—admitting that the powdery substance which he possessed was heroin—in effect constituted a confession, its erroneous admission was necessarily prejudicial.  (People v. Dorado, supra, at p. 356, 42 Cal.Rptr. 169, 398 P2d 361;  People v. Charles, supra, 66 Cal.2d at pp. 341–342, 57 Cal.Rptr. 745, 425 P.2d 545.)

 In concluding that Escobedo–Dorado requires a reversal of defendant's conviction, we are not unmindful of the recent decision of the First District Court of Appeal, in People v. Williams, 265 A.C.A. 1088, 71 Cal.Rptr. 871, wherein the court held (under circumstances similar to those presented here), that where the entry of final judgment was extended, by reason of narcotics rehabilitation proceedings, into the period covered by the Escobedo–Dorado rules, that those rules were not available to the defendant.   We are of the opinion, however, that since this is not a reinstated appeal but a direct appeal of a still pending case, the California Supreme Court has indicated the final-judgment-date rule is applicable.  (See People v. Rivers, 66 Cal.2d 1000, 59 Cal.Rptr. 851, 429 P.2d 171;  People v. Rollins, 65 Cal.2d 681, 56 Cal.Rptr. 293, 423 P.2d 221.)

The judgment is reversed.

I would follow People v. Williams, 265 A.C.A. 1088, 71 Cal.Rptr. 871 and affirm.


1.   Although defendant could have raised trial errors long before this time by making a motion for new trial and appealing from the denial thereof (under Pen.Code § 1237 subd. 2), he is nevertheless entitled to raise them now in this appeal from the judgment (under Pen.Code § 1237 subd. 1).  (People v. Gonzales, 68 A.C. 481, 483–485, 67 Cal.Rptr. 551, 439 P.2d 655.)

JEFFERSON, Associate Justice.

KINGSLEY, J., concurs.

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