People v. Anderson

• Citation: 88 Cal.Rptr. 4,9 Cal.App.3d 80
• Decision Date: 24 June 1970
• Docket Number: Cr. 3956
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lon ANDERSON, Defendant and Appellant.

* 4 88 Cal.Rptr. 4

9 Cal.App.3d 80

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lon ANDERSON, Defendant and Appellant.

Cr. 3956.

Court of Appeal, Fourth District, Division 1, California.

June 24, 1970.

[9 Cal.App.3d 81] Frederick L. Hetter, San Diego, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert W. Carney, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

WHELAN, Associate Justice.

Lon M. Anderson (defendant), after a motion to suppress evidence was denied, pleaded guilty to possession of marijuana. A charge of possession of restricted dangerous drugs was dismissed. Defendant appeals from the order granting probation.

STATEMENT OF FACTS

The only evidence in support of the motion to suppress was that contained in the transcript of the preliminary hearing.

On March 20, 1969, Ronald Wibe, a deputy sheriff working on cases involving juveniles, was in the office of James Humphrey, principal of an elementary school in the Santee area of San Diego County, for the purpose of obtaining Humphrey's permission to interview a student concerning burglaries in the area. The conversation was interrupted by a telephone call for Humphrey from his wife, who told him their 16-year-old son, Kent, was at the apartment of defendant.

Kent had been suspended from school for truancy and had been under orders from his parents to remain at home, either in the house or yard. That information was given by Humphrey to Wibe.

Kent's presence at defendant's apartment had been reported to Mrs. Humphrey by an older son.

Because Humphrey was not certain Kent would accompany him home without resistance, Humphrey asked Wibe if the latter would go with him to pick up Kent and take him home. He asked Wibe to place Kent under arrest only if that should become necessary to effect Kent's return home. Wibe agreed and the two started off in Wibe's official car for Anderson's apartment.

Wibe recognized Anderson's name when it was mentioned by Humphrey and he had reason to believe, from past information, that Anderson might be involved with narcotics. Wibe had also gained information regarding the apartment building in general, and it was suspected by the sheriff's department that narcotics were being used in the apartment complex. The attention of the department, however, had not focused on any of the individual units in the complex. No mention was made of narcotics or drugs during the time Humphrey and Wibe were together before the former entered Anderson's apartment.

There were about 30 apartments in the complex. Although Humphrey did not know which was defendant's apartment, through the window of an apartment he saw Kent seated in a chair an Humphrey and Wibe walked from the parked car about 50 feet away. Humphrey said, 'There's Kent' to Wibe, who also saw the boy but would not have known him otherwise.

Humphrey saw that Kent had seen him, and that Kent stood up and moved uncertainly first in one direction and then in another, from which Humphrey formed the impression the boy intended to go out the back or the front door.

Humphrey proceeded to the front door, followed closely by Wibe, and opened the door which had been closed. There was no screen door. Humphrey entered and saw Kent standing a short distance away. Humphrey said to Kent, 'You're under arrest.'

Until Humphrey went in Wibe had not known what Humphrey would do, whether he would knock and wait to be admitted or enter without knocking.

After the door had been opened by Humphrey, Wibe, at the doorway, intended to follow Humphrey in, to assist him if necessary, or, if necessary, to prevent violence on either side. However, as soon as Humphrey opened the door Wibe became immediately conscious of a strong smell of marijuana, with the smell of which he was familiar. Humphrey also on opening the door was conscious of a strong odor that he did not identify.

Wibe then entered, noticing the presence of two other persons as he did so. He went to where Humphrey and Kent were standing; after he saw nothing was going to happen between them he noted the positions of defendant seated on a couch and of Bruce Hostetler seated in a chair.

Wibe found the smell of marijuana even heavier after he entered. He glanced around the front room and saw on a couch Zig-Zag cigarette papers and a plastic bag with particles of green matter in it which he thought was marijuana.

Wibe placed all three persons under arrest for possession of marijuana and went to a telephone to call the sheriff's office for assistance. While he was doing that Humphrey observed Hostetler stoop over from the chair in which he was sitting and place something under an ashtray that was on the floor in front of him. After Wibe had finished telephoning, Humphrey told him of that. Wibe saw in the ashtray several roaches, or stubs, and a partially-smoked marijuana cigarette rolled in a paper match clip.

A search of the apartment discovered other marijuana and dangerous restricted drugs in various locations. ¹

Debris containing marijuana was found in defendant's pocket.

CONTENTIONS ON APPEAL

Defendant contends the arrest and search were unlawful in that neither Wibe nor Humphrey knocked and announced his presence before entering the apartment, as required by Penal Code, section 844, which provides:

'To make an arrest, a private person, if the offense be a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.'

Section 844 could not have given Humphrey any right to enter even if he had done the mechanical acts called for by the section, since if he intended to make an arrest it was not for a felony.

Understandable as his action might be, Humphrey, in entering, apparently violated section 602.5, Penal Code.

If the unauthorized entry by Humphrey was an act for which Wibe had any responsibility, his subsequent actions would have been tainted by that irregularity. The trial court held Wibe had no such responsibility.

Stapleton v. Superior Court, 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967, dealing as it does with a situation in which the search of a car by a layman 'was clearly part of a joint operation by police and the credit card agents aimed at arresting petitioner and obtaining evidence against him,' is not controlling in the present case. Here the reason for going to defendant's mother's apartment was neither to arrest defendant nor to obtain evidence against him, and had nothing to do with defendant personally.

Whether the visit to the apartment was initiated by Wibe, whether Humphrey acted as Wibe's agent or under instructions from him in opening the door, whether Wibe had said or done anything reasonably calculated to cause Humphrey to open the door without permission, are all questions of fact that were resolved by the trial court on the basis of the evidence in the record. That evidence is sufficient to support the trial court's findings.

It is possible that Humphrey acted with...