PEOPLE v. BACKUS (1977)

This appeal is by the People from an order setting aside an indictment against three Salinas police officers which charged them with one count of conspiracy to obstruct justice based on two overt acts: (1) knowing and negligent failure to execute an arrest warrant upon Melinda Spears, a heroin addict on parole; and (2) furnishing heroin to Spears. A second count of the indictment also charged them with a conspiracy to furnish heroin to Spears, and in a third count defendants Ward and Joseph were charged with a separate conspiracy to furnish heroin to three other people.

The factual situation is relatively simple. Ward and Joseph were narcotics detectives and partners. Backus, a detective sergeant, was their supervisor. On December 4, 1974, Melinda Spears was arrested by two other narcotics detectives, Irwin and Oliver. Following the arrest, the officers seized approximately 25 balloons of heroin and a clear cigarette package containing pure uncut heroin from Spears. At the police station, Oliver placed this heroin in his desk in the presence of the three defendants.

Spears agreed to inform on her supplier, known as ‘Minnesota,’ who apparently had his headquarters in Pinole. She arranged to make a purchase from Minnesota with Detectives Oliver, Ward and Joseph following along to make the arrest. This was successful, resulting in the seizure of at least two pounds of heroin, several guns, and the apprehension of a suspect wanted on a murder charge.¹ A routine teletype check for outstanding arrest warrants for Spears had been run by Oliver immediately after her arrest, and it was learned that she was wanted as a parole violator in San Bernardino County. Testimony before the grand jury suggests that the defendants and others in the police department agreed to suppress the teletype in order to keep Spears working for them. It was also decided that since Spears could not be hospitalized for her addiction, because the processing there would reveal her fugitive status, she would stay at defendant Joseph's home overnight. It was further agreed that it would be necessary to maintain Spears on heroin in order to prevent the onset of withdrawal symptoms.

The sole issue in this case involves an interpretation of Health and Safety Code,2 section 11367, which provides: ‘All duly authorized peace officers, while investigating violations of this division in performance of their official duties, and any person working under their immediate direction, supervision or instruction, are immune from prosecution under this division.’

The Attorney General vigorously contends that the Legislature, in enacting section 11367, did not intend to render police officers immune from prosecution ‘for injecting heroin into the veins of their addicted tools.’ The Attorney General argues that such conduct on the part of the police officers is ‘corrupt,’ whereas, for example, furnishing funds for the purchase of narcotics or even furnishing one of the necessary chemical ingredients for the manufacture and sale of an illegal drug would not be (cf. United States v. Russell (1973) 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366).

While the Attorney General's forceful argument has a certain amount of initial and superficial appeal to one's basic perceptions of what might constitute improper police conduct, the plain fact is that the Legislature has not seen fit to qualify or restrict the scope of the immunity contained in section 11367 except to limit it to matters arising ‘under this division’ (Div. 10 of the Health & Saf. Code).

At the hearing below, the People conceded that at all pertinent times the respondents were acting in the performance of their official duties. Indeed, the grand jury transcript testimony is susceptible of no other conclusion. Nonetheless, the Attorney General urges us to adopt a theory analogous to the resisting arrest concept employed in police officer assault cases (see People v. Curtis (1969) 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33) in which a finding of ‘excessive force’ may take the officer outside of his official duty.

We decline the invitation for at least two valid reasons. First of all, the situations presented by the respective statutes—i. e., Penal Code sections 835 and 835a in Curtis, and Health and Safety Code section 11367 here—are entirely different. In the arrest situation the statutes themselves contain express language, limiting the officer to the use of ‘reasonable force.’ Under section 11367, the immunity is total and complete. Secondly, the Curtis theory is one which has evolved by way of defense to, or an amelioration of, a penal statute. Here, under the Attorney General's novel theory, application of the Curtis theory to section 11367 would, in effect, create a criminal liability upon police officers who, based on a simple reading of section 11367, would be entitled to believe that none existed. The due process and ex post facto implications of such a ruling are blatantly obvious.

We have been unable to find (and none has been furnished to us) any evidence of a legislative history or intent which even remotely suggests that section 11367 is to be interpreted in any manner other than in accordance with the clear, unambiguous language contained in the statute itself.

$tWe agree with the able and experienced trial judge who aptly observed at the conclusion of the lengthy hearing below: ‘I don't know how many times you could read it [§ 11367] and read something different from its clear meaning. [¶] As incensed as anybody might be, the legislature has passed this law and we have it. It's so clear in my mind that not to follow it would be to really disregard the plain letter of the law. [¶] There is another aspect, too. And that is one of—it comes pretty close to estoppel. If you're going to interpret it in some manner that's really not the literal meaning of the statute—a lay person reading that section would certainly be justified in relying on it . . .’

It is a matter of common knowledge that narcotics investigation is a complex, sleazy and onerous part of law enforcement at best. Officers assigned to this detail are often required to adopt hazardous and creative techniques in order to apprehend the drug pusher or dealer (cf. People v. Superior Court (1971) 19 Cal.App.3d 522, 533, 97 Cal.Rptr. 118).

In our opinion, the Legislature recognized these hard facts of life when it enacted section 11367. Having carved no exceptions into the statute, it is clear that the immunity granted by section 11367 clearly applies to respondents.

The order setting aside the indictment is affirmed.

FOOTNOTES

1.  The importance and scope of the transaction is evidenced by the fact that in addition to the defendants, representing the Salinas Police Department, officers from the Contra Costa County Narcotics Task Force, the Pinole Police Department, the State Bureau of Narcotic Enforcement, and a deputy district attorney from Contra Costa County were all involved.

FN2. Unless otherwise indicated, all references will be to the Health and Safety Code..  FN2. Unless otherwise indicated, all references will be to the Health and Safety Code.

KANE, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.