Fraher v. Superior Court for Los Angeles County

• Decision Date: 21 April 1969
• Court: California Court of Appeals Court of Appeals
• Parties: John Clayton FRAHER and Dianne M. Fraher, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 34032.

Page 366

77 Cal.Rptr. 366

272 Cal.App.2d 155

John Clayton FRAHER and Dianne M. Fraher, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 34032.

Court of Appeal, Second District, Division 5, California.

April 21, 1969.

Hearing Denied June 18, 1969.

[272 Cal.App.2d 157] Marvin Gross, Los Angeles, for petitioners.

No appearance for respondent.

Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, and Harry B. Sondeheim, Deputy Dist. Atty., for real party in interest.

ALARCON, Associate Justice, pro tem. ^*

Petitioners seek a peremptory writ of prohibition pursuant to Penal Code section 1538.5(i) on the ground that the evidence obtained against them was the product of an unreasonable search and seizure. The petitioners sought to suppress certain evidence of narcotics seized after a search of petitioners' home.

The evidence presented to the trial court at the special hearing pursuant to Pen.Code § 1538.5 revealed that Officer Figelski of the Los Angeles Police Department observed a report pinned on the bulletin board Figelski knocked on the front door several times 'fairly hard,' and announced that he was a police officer. The door opened as a result of the force of the knocking, and Figelski directed the persons inside to wake up. Petitioner John Clayton Fraher came to the door. Prior to the arrival of Figelski at the address, no identification of the persons who resided there was obtained. Officer Figelski identified himself as a police officer, showed his badge, and said he would 'like to talk to (petitioner) concerning a narcotics complaint.' Fraher replied, 'Sir, come on in,' or 'Sure, come on in.' The appearance of the defendants did not suggest that either of them was 'under the influence of anything.' Figelski entered, and was promptly followed by one of the other officers. Figelski proceeded directly to the water pipe, picked it up, and smelled an odor of marijuana. At this time it was seen that the hoses used with the pipe were not attached. He also observed what he concluded to be not recently burned marijuana debris in the bowl of the water pipe. At this time the petitioners were arrested for possession of marijuana, and a search was made of the house. Evidence consisting of narcotics other than the debris contained in the water pipe was seized pursuant to this search. It is the subsequently found evidence which is sought to be suppressed; there was insufficient debris to conduct a chemical analysis of the substance found in the water pipe. The officers had no warrant of arrest or search.

a couple of days prior to October 5, 1968 to the effect that sales of heroin were taking place from a particular address on Tarzana Drive, and [272 Cal.App.2d 158] that a man, woman, and small child lived there. The officer presumed that the information contained in the report was from some anonymous complaint which had been called in. Figelski, in the company of two other officers, went to that address at 11:45 p.m. on October 5, 1968. So far as Figelski knew, there had been no police surveillance of the house. Upon looking through a front window, Figelski observed that the lights were on and that a man and woman were inside, apparently asleep. In an alcove located across the living room, he saw what appeared to be a portion of a water pipe of a type which he had previously encountered in connection with marijuana cases. This type of pipe is used to smoke marijuana. The pipe was resting on the third shelf of a bookshelf in the alcove, which was adjacent to an aquarium.

PROBLEM

The petitioners contend that no reasonable cause existed for their arrest prior to the seizure of the water pipe by Officer Figelski. They argue that if the water pipe and its contents were products of an unreasonable search and seizure then the evidence which was seized after the arrest of the petitioners is inadmissible as a fruit of the previous alleged violation of the petitioners' constitutional rights. After a review of the evidence presented at the special hearing, pursuant to section 1538.5 of the Penal Code and the oral findings of the trial judge, we have concluded that the police had reasonable cause for the arrest of the petitioners prior to the seizure of the water pipe and, therefore, the searches and seizures which followed were reasonable under the Fourth Amendment.

DISCUSSION

Since Officer Figelski had no warrant for arrest or search we must look to the information available to him prior to the seizure of the water pipe to determine if there was reasonable cause for the arrest of the petitioners. Prior to going to the petitioners' residence, Officer Figelski had received information from an anonymous source that someone residing at the petitioners' home was selling heroin. Reasonable cause for an arrest may be based on hearsay information and is not limited to evidence which would be admissible at a trial on the issue of guilt. (People v. Boyles, 45 Cal.2d 652, 290 P.2d 535.) However, if the information is obtained from an anonymous informer it cannot be considered as reasonable cause for an arrest unless other evidence is presented to the court to justify the conclusion that reliance on the information was reasonable. Reliance on anonymous information may be justified by evidence obtained through the personal observations of the police. (Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36.) Such independent evidence need not itself constitute reasonable cause to make an arrest. (People v. Prewitt, 52 Cal.2d 330, 341 P.2d 1.)

In this case, acting on the anonymous information, Officer Figelski and his fellow officers went to the petitioners' residence to seek an interview concerning the reported narcotics violations. It is not unreasonable police conduct to seek an interview with the person accused of criminal activity. (People v. Michael, 45 Cal.2d 751, 290 P.2d 852, 858; People v. Padilla, 240 Cal.App.2d 114, 49 Cal.Rptr. 340.) Officer Figelski observed the water pipe by looking through the front window of the petitioners' residence. 'Looking through a window does not constitute an unreasonable search.' (People v. Martin, 45 Cal.2d 755, 762, 290 P.2d 855; Bielicki v. Superior Court, 57 Cal.2d 602, 607, 21 Cal.Rptr. 552, 371 P.2d 288; People v. Garcia, 248 Cal.App.2d 284, 287, 56 Cal.Rptr. 217; People v. Willard, 238 Cal.App.2d 292, 297, 47 Cal.Rptr. 734.)

Officer Figelski was qualified as an expert in the investigation of narcotics cases on the basis of police academy training, academic studies at 'L. A. Valley College,' the reading of numerous text books on narcotics and apprenticeship under experienced officers in the field of narcotics. He also testified to making numerous arrests for narcotics violations. In addition, he has worked as an undercover officer during which time he not only purchased narcotics but also saw narcotics used and administered. After detailing his qualifications and experience, Officer Figelski was permitted to testify as an expert that the water pipe he observed through the front window was of the type used to smoke marijuana.

At the end of the special hearing, the trial judge reviewed the evidence and made oral findings of fact prior to denying the petitioners' motion to suppress. The court expressly found that when Officer Figelski first observed the water pipe through the front window he believed it was used for smoking marijuana. ¹

The possession of any device, contrivance, instrument, or paraphernalia used for smoking marijuana is a crime. (Section 11555 of the Health and Safety Code.) ² Whether an object is a device, contrivance, instrument or paraphernalia used for the smoking of marijuana is a question of fact. To determine the existence of a fact the trier of fact may rely on the opinion testimony of expert witnesses concerning a subject matter which is sufficiently beyond common experience (Ev.Code § 801) although the opinion embraces the ultimate issue to be decided. (Ev.Code § 805.) Thus, on a trial for the possession of bookmaking paraphernalia a police officer with experience in the manner in which bookmaking is conducted may testify that certain documents and materials constitute bookmaking paraphernalia. (People v. Hinkle, 64 Cal.App. 375, 221 P. 693; People v. Newman, 24 Cal.2d 168, 148 P.2d 4, 152 A.L.R. 365; People v. Cohn, 94 Cal.App.2d 630, 211 P.2d 375.) The opinion of a police officer, without medical training, that a minor appeared to be under the influence of narcotics has been held to be sufficient to establish the corpus delicti in a prosecution for the illegal furnishing of heroin to a minor where the officer qualified as an expert because of his special knowledge of the narcotics' field through training and field experience. (People v. Mack, 169 Cal.App.2d 825, 338 P.2d 25.)

Here we are not called upon to decide whether a conviction for a violation of section 11555 of the Health and Safety Code could be sustained based solely on the testimony of Officer Figelski that in his opinion the water pipe was a device used for the smoking of marijuana.

The narrow question presented by this petition is whether reasonable cause for the arrest of the petitioners existed from the moment Officer Figelski saw the water pipe because of his experience and training and his expert opinion that the water pipe was a device used for smoking marijuana.

Section 836 of the Penal Code provides in pertinent part: 'A peace officer may * * * without a warrant, arrest a person: (1) whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.'

Reasonable cause refers to 'evidence which inclines the mind to believe, but leaves some room for doubt.' (People v. Ingle, 53 Cal.2d 407, 413, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580.) Reasonable cause for an arrest need not be established...