Mann v. Superior Court

• Citation: 3 Cal.3d 1,88 Cal.Rptr. 380,472 P.2d 468
• Court: United States State Supreme Court (California)
• Decision Date: 10 August 1970
• Parties: , 472 P.2d 468 Thomas Richard MANN and Wesley Howard Wright, Petitioners, v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent, The PEOPLE, Real Party in Interest. L.A. 29727.

Page 380

88 Cal.Rptr. 380

3 Cal.3d 1, 472 P.2d 468

Thomas Richard MANN and Wesley Howard Wright, Petitioners, v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 29727.

Supreme Court of California,

In Bank.

Aug. 10, 1970.

Rehearing Denied Sept. 3, 1970.

Garza & Kassel, Donald W. Jordan, Jr., and Lawrence W. Novack, San Bernardino, for petitioners.

No appearance for respondent.

Lowell E. Lathrop, Dist. Atty., and John Arden, Deputy Dist. Atty., for real party in interest.

WRIGHT, Chief Justice.

Petitioners were charged by information in San Bernardino County with possessing marijuana and maintaining a place for narcotics use (Health & Saf.Code, §§ 11530, 11557). They pleaded not guilty and moved under Penal Code section 1538.5 to suppress the evidence, consisting of marijuana, on the ground that it was obtained as the product of an unlawful search. After an evidentiary hearing, the trial court denied the motion in a three-page memorandum order in which it set forth its findings and conclusions. In this proceeding petitioners seek a writ of mandate directing the trial court to suppress the challenged evidence. We have concluded that the writ should be denied.

The People called only one witness at the hearing, Lieutenant Edward F. Olmos of the Redlands Police Department, who had been with the Vice and Narcotics Detail for 10 years. Lieutenant Olmos testified substantially as follows: In the afternoon of January 31, 1969, he received a call from Chief Graefe of the Redlands Police Department. Chief Graefe told him he had received a call from a Mr. Simpson, the assistant superintendent of schools in Rialto, who stated that he had reason to believe there had been marijuana parties at 161 East Crescent Avenue, at the corner of York Street, in Redlands, the residence of several high school teachers in the Rialto and Yucaipa Unified School Districts. He further stated that there might be such a party there that night. Lieutenant Olmos said he would investigate the report that night when he went on duty.

About 7:15 p.m., Lieutenant Olmos went to the residence. He noticed several cars parked in front of the house and saw one vehicle park and two or three people get out and enter the house. He parked his car and walked along an alley behind the house. Music and voices were coming from inside, which indicated to him that a party was in progress. Lieutenant Olmos remained for a few minutes, then left, picked up Detective Hannebaum and Sergeant Bushnell, and returned about half an hour later. The officers parked in an alley across York Street and radioed for additional officers to be stationed within a block or two of the residence in case help was needed.

At Lieutenant Olmos' direction, Sergeant Bushnell stood at the rear entrance to the house. Lieutenant Olmos and Detective Hannebaum walked around the side of the house through an orange grove to the front of the house where three windows opened into the dining room. Lieutenant Olmos was aware that they were on private property at the time.

There were bushes along the house in front of the windows. The bushes were so close to the house that their branches touched the windows and house. To get a clear view through the windows, the officers stood between the bushes and the house. Heavy drapes at the sides of the windows did not substantially obstruct the officers' view, and they could see what was going on inside through the thin curtains that covered the windows. Lieutenant Olmos at first denied that there were any drawn shades on the windows, but on cross-examination he admitted that there might have been shades drawn to within two or three feet of the sill, but that in any event they did not obstruct his vision in any way.

Lieutenant Olmos and Detective Hannebaum observed the activities in the dining room for about 15 minutes from this position. Two young women were seated at the dining room table and three or four men were standing toward the back of the room. There were other men walking in and out of the room. On a table was a water pipe, or hookah. One man walked over to the hookah, picked up the top portion of it, which normally holds the substance to be smoked, and appeared to smell it. Another man came in and poured some liquid into the bottom portion of the hookah, as though preparing it for use. At another point, Lieutenant Olmos observed a man smoking a cigarette in a manner that suggested it was a marijuana cigarette, that is, by cupping it with both hands and draw ing on it in a way that Lieutenant Olmos had come through training and experience to associate with the smoking of marijuana. The cigarette itself did not appear to be an ordinary cigarette. Finally, the officer recognized one of the men in the room as a person he had previously investigated in connection with a narcotics case. The officers then saw someone stagger, as though drunk, out the front door to a car, remove something from under the seat, and carry it back to the house. About two minutes later another car drove up and three persons got out and entered the house.

Ten to fifteen seconds thereafter, Lieutenant Olmos and Detective Hannebaum left their position by the window and walked up to the front door. Lieutenant Olmos knocked on the door--three or four raps in succession--with a fair amount of force to be heard above the music and talking that was going on inside. After 15 or 20 seconds, he knocked again three or four times, harder and louder than the first time. He then heard a male and a female voice simultaneously say 'Come in.' He opened the door and was greeted with a strong odor of marijuana smoke.

After he entered the house, Lieutenant Olmos gathered everyone into the living room and placed them under arrest. Petitioners, who lived at the house, were among those present. After other officers arrived, Lieutenant Olmos and Detective Hannebaum searched the house. ¹ They found a plastic bag containing marijuana on the stairway leading upstairs, a round plastic container with marijuana in a filing cabinet in the bedroom, and traces of marijuana in a jacket on a chair in the dining room, in a package underneath the sofa in the living room, in a bag under the center cushion of the sofa, and in an ashtray. They also found a 'roach clip,' used for holding a marijuana cigarette, in another ashtray and a package of Zig-Zag cigarette papers on the dining room table.

The defense witnesses included seven of the young people who were at the party as well as the two petitioners. Their testimony was substantially in agreement that the door was left ajar after the arrival of the three guests who came in immediately before the officers entered; that the music and voices were not so loud that normal conversation was impeded; that the officers did not knock before entering; that no one said 'Come in'; and that the only odor in the room was that of ordinary cigarette smoke, not marijuana smoke, although petitioner Mann did admit seeing someone smoke marijuana earlier in the evening.

The testimony of these witnesses was in some disagreement as to the manner in which the officers entered. Some of the witnesses described the officers as having 'sneaked' or 'slipped' in the partially open door immediately behind the last three arrivals. Others said the door was nearly closed, but the latch had not clicked shut. One witness testified that he noticed the door was unlatched and he stepped toward it and reached out to push it shut when Lieutenant Olmos pushed it open from the other side. Estimates of the time elapsed between the entry of the last three guests and the entry of the officers varied from a few seconds to a minute or so.

Petitioner Wright testified that he checked the dining room and other windows shortly after people began to arrive and that the shades on the dining room windows were drawn to within an inch or two of the sill. His purpose was to insure a normal amount of privacy. He also said that he and the other residents of the house usually kept the shades drawn in the evening so they could walk around in their underclothes without being seen from the street. He admitted that the shades were not drawn all the way down, but stated that they were drawn far enough so that no one could see in from the street.

We note at the outset, as respondent concedes, that the officers did not have probable cause to arrest the occupants of the house solely on the basis of the information supplied by Simpson. Although they might assume from Simpson's position as assistant superintendent of schools that he was personally reliable, it does not appear that Simpson witnessed marijuana parties at the house or himself overheard petitioners or others planning such a party for the night in question. At most the officers could assume that Simpson was passing on information from an undisclosed source the identity and reliability of which in no way appears. Such information is not sufficient to constitute probable cause for an arrest or search. (Wong Sun v. United States (1963) 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441; Aguilar v. Texas (1964) 378 U.S. 108, 110, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States (1969) 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637; People v. Hamilton (1969) 71 A.C. 189, 192--195, 77 Cal.Rptr. 785, 454 P.2d 681.) It did justify further investigation, however, and it is the way in which that investigation was conducted that petitioners contend was unlawful.

The officers had entered petitioners' property from an alley at some distance from the rear of the house, walked across the property through an orange grove alongside the house, and placed themselves behind the bushes in front of the dining room windows, from which vantage point they could see what was going on inside the house. Petitioners contend that the physical setting reasonably entitled them to expect privacy within their home, that...