People v. Alexander

• Decision Date: 18 August 1967
• Docket Number: Cr. 11775
• Citation: 61 Cal.Rptr. 814,253 Cal.App.2d 691
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Walter Webster ALEXANDER, Sr., Defendant and Appellant.

Page 814

61 Cal.Rptr. 814

253 Cal.App.2d 691

The PEOPLE, Plaintiff and Respondent, v. Walter Webster ALEXANDER, Sr., Defendant and Appellant.

Cr. 11775.

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

Aug. 18, 1967.

Rehearing Denied Sept. 8, 1967.

Hearing Denied Oct. 11, 1967.

T. Anthony Sanfilippo, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Elizabeth Miller and Jerold A. Prod, Deputy Attys. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

Defendant was charged with possession of marijuana for sale (Health & Saf. Code, § 11530.5) and with two prior convictions of possession of heroin. Defendant admitted the two priors. After a jury found defendant guilty as charged he was sentenced to state prison. This appeal is from the judgment.

On October 18, 1964, Officer Billy Pool went to a house on South Amantha in Compton in response to a radio call about a missing girl. As he arrived he saw two boys in a Buick automobile drive away from the house across the street. The woman who had called the police then told Officer Pool, "We've been told that the man that lives there sells narcotics to juveniles. Those boys just went there, and I think they bought some narcotics." She pointed to the home of defendant, who lived across the street from her.

Officer Pool pursued the Buick, stopped it, arrested the boys and found loose marijuana in the car. He then had a conversation with the boys, the content of which is not disclosed by the record except that the information thus obtained caused him to go back to defendant's home.

When Officer Pool returned to defendant's home he was accompanied by three other officers. Defendant was standing in his front yard, and with him were his two sons and a 19-year-old boy named Stanmore. In answer to questions, defendant admitted he lived there, but denied that anyone had been there and left that evening, denied that he had any marijuana on the premises and denied that a boy had purchased marijuana there that evening. Officer Pool testified that he 'asked him (defendant) if he minded if we searched the premises for marijuana. He stated, 'No, come on in,' and led us into the house.'

According to defendant's testimony, Officer Pool said, "Well, then, you don't mind if we have a look around" and three officers walked in without waiting for a reply. Defendant testified he was afraid to resist, and said nothing.

If the officers found anything illegal in the house, there is no evidence of it in the record.

After going through the house they searched the back yard. There they found three tin cans of marijuana concealed in the chimney of a barbecue. More marijuana was in another can and in a paper bag found in the weeds alongside the garage.

The officers then, according to their testimony, advised defendant of his right to counsel and his right to silence, and defendant interrupted to say he was fully aware of his constitutional rights and they didn't have to tell him. When the officers asked who owned the marijuana, defendant and the three boys all denied any knowledge of it. But after further questioning, defendant admitted that the marijuana was his and that he had sold some that evening to a teen-age boy for $3.50.

Defendant, testifying on his own behalf, denied that he had known there was any marijuana on the premises until the officers found it. He admitted on the witness stand that he had told the officers it was his, but he explained to the jury he said this only because he feared his sons would be arrested if he did not assume responsibility. He said one of his sons had previously been arrested for possession of marijuana. In court defendant denied that he had confessed to any sale of marijuana.

In the trial court defendant objected to the introduction of the marijuana on the ground that the search had been illegal. The prosecutor argued that the search was legal both because the defendant ahd consented, and because it was outside the house. In overruling the objection, the trial court said:

'Under the present state of the law, they had a right to make a search in the location where they actually did find the contraband. If the officers had not found any contraband where they did, but had actually found it inside the defendant's house, the Court would have considerable difficulty in deciding whether or not there was a legal search, legal entry, search and seizure, but we are not faced with that.

'* * *our

'The Court is going to find that the search was a legal search and seizure was legally made by the officers, having been performed, and the contraband seized, outside of any dwelling or actually outside of any structure as that term is usually used, which, under the present state of the law, the officers have a right to do.'

The court's remarks negate any finding of consent. Where the evidence is in conflict, the reviewing court ordinarily assumes that the trial court found the preliminary facts to be in support of its ruling. But where the record shows that the trial court did not pass upon the issue, no such finding is implied. (People v. Henry, 65 A.C. 896, 899--900, 56 Cal.Rptr. 485, 423 P.2d 557.) Therefore, if consent was required, the search cannot be upheld in this court.

Nor can the search be upheld as an incident to a lawful arrest, because there was no legal justification shown for arresting defendant until the marijuana was discovered in his back yard. The record fails to show that the woman on Amantha Street had any factual basis for accusing defendant. There is, therefore, no evidence that the arrest of the boys in the Buick was a legal arrest, despite the fact that marijuana was turned up. Thus the discovery of the marijuana in the Buick, and any statements of the boys implicating defendant, were presumptively the product of an illegal arrest (People v. Bilderbach, 62 Cal.2d 757, 763, 44 Cal.Rptr. 313, 401 P.2d 921) and cannot be offered as a legal ground for arresting defendant. (Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441.) Therefore the search cannot be upheld upon any theory of 'probable cause to arrest.' (People v. Reeves, 61 Cal.2d 268, 38 Cal.Rptr. 1, 391 P.2d 393.)

The theory relied upon by the trial court was that, irrespective of consent or probable cause to arrest, the search which turned up the marijuana was not such a violation of law on the part of the officers as to deprive the People of the fruits of the search under the principles announced in People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513 and Mapp v. State of Ohio (1961) 367 U.S. 643, 653, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

The search took place in the rear yard of a single-family residence, in which defendant resided with his sons. Within this yard, but detached from any other structure, was a barbeque or fireplace, 5 or 6 feet wide at the base, with a chimney rising 7 or 8 feet above the ground. The critical event was the discovery of marijuana leaves and seeds in metal cans which were inside the chimney. Inasmuch as we have found no decision with facts exactly like this, it is necessary to examine the basic rules, as they have been applied in other situations.

Preliminarily we must point out two limitations upon the scope of our discussion: (1) We are here concerned only with a search conducted wholly outside of any building; (2) We are talking only of entries which, apart from the official status and purpose of the officer, would be trespasses.

The Fourth Amendment to the Constitution of the United States declares:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, * * *.'

Article I, section 19, of the California Constitution speaks in similar language.

In Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, officers concealed themselves '50 to 100 yards away' from a house. When the defendant came out of the house, he discovered the presence of the officers. As the defendant fled, he dropped a container of contraband whiskey, which the officers recovered. The Supreme Court said (at pp. 58, 59, 44 S.Ct. at p. 446):

'It is obvious that even if there had been a trespass, the above testimony was not obtained by an illegal search or seizure. * * * The only shadow of a ground for bringing up the case is drawn from the hypothesis that the examination of the vessels took place upon Hester's father's land. As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields.'

In People v. Andrews (1957) 153 Cal.App.2d 333, 314 P.2d 175, an officer approached a private home by walking from an alley through an opening in a fence, which was about 5 feet from the house. The officer then stood at a window of the house and observed narcotics paraphernalia and bindles inside. The conviction was affirmed upon two independent grounds. The first was that before approaching the premises the officer had reasonable cause to enter and arrest the occupants. The other was that, if there had been a trespass, the officer's testimony did not thereby become inadmissible, citing Hester.

In People v. Bly (1961) 191 Cal.App.2d 352, 12 Cal.Rptr. 542, an officer entered a back yard and seized a package which had been placed in some bushes approximately 2 feet from the rear door and alongside the porch. The contents of the package were held to be admissible, citing Hester.

In People v. Jackson (1961) 198 Cal.App.2d 698, 18 Cal.Rptr. 214, officers looked inside a paper bag which they found in a trash pile alongside a chicken coop in the defendant's back yard, and there found marijuana. That evidence was held to be admissible under the Hester decision and other cases...