People v. Baldwin

• Decision Date: 14 October 1976
• Docket Number: Cr. 14284
• Citation: 62 Cal.App.3d 727,133 Cal.Rptr. 427
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Douglas Michael BALDWIN et al., Defendants and Respondents.

Page 427

133 Cal.Rptr. 427

62 Cal.App.3d 727

PEOPLE of the State of California, Plaintiff and Appellant, v. Douglas Michael BALDWIN et al., Defendants and Respondents.

Cr. 14284.

Court of Appeal, First District, Division 2, California.

Oct. 14, 1976.

As Modified Oct. 21, 1976.

Hearing Denied Dec. 9, 1976.

Evelle J. Younger, Atty. Gen., State of California, Jack R. Winkler, Chief Asst Atty. Gen., Crim. Div, Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, James D. Hurwitz, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

James C. Hooley, Public Defender, County of Alameda, E. Craig Goldman, Asst. Public Defender, Oakland, for defendant and respondent Baldwin.

Michael E. Ballachey, Ballachey, Meade, Duane & Lyman (Court-appointed), Berkeley, for defendant and respondent Martinez.

R. Zachary Wasserman, Wasserman & Gordon, Oakland, for defendant and respondent Cano.

TAYLOR, Presiding Justice.

The People appeal from an order dismissing the information ¹ pursuant to Penal Code section 1385 after the granting of a defense motion to suppress evidence pursuant to Penal Code section 1538.5, on grounds that all of the evidence acquired by the police after the arrest of defendant Baldwin was 'fruit of the poisonous tree,' namely, the unlawful search of the home after the arrest. The People contend that: 1) the smell of marijuana detected by the arresting officers was a sufficient basis, without more, to provide probable cause sufficient to preserve the validity of the search warrant; (2) the arresting officers had probable cause to investigate the Baldwin residence and to arrest defendants Martinez and Baldwin; 3) the entry of the house was lawfully made since Penal Code section 844 was not applicable, or, if so, there was substantial compliance with its requirements; and 4) there was probable cause to arrest defendant Cano, since she was plainly in view of the officers as they entered the house during the arrest of Martines and Baldwin. Baldwin and Martinez also urge that the scope of the search for additional suspects and the 'freezing' of the residence was unlawful and that the warrant, even with the unlawfully obtained evidence excised, was the 'fruit of the poisonous tree.' The major issues on appeal are whether there was an initial invasion of a private area protected by the Fourth Amendment of the federal and state Constitutions, and the application of the knock and notice requirements of Penal Code section 844 and of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. For the reasons set forth below, we have concluded that the court erred in dismissing the information.

Preliminarily, we turn to the procedural issues pertaining to the scope of review. The record indicates that defense motions, pursuant to Penal Code sections 995 and 1538.5 were made on February 18, 1975, and subsequently heard and argued. On April 9, 1975, the 995 motion was denied and the 1538.5 motion granted. Subsequently, pursuant to Penal Code section 1385, the motion to dismiss as to all three defendants was granted on the grounds that although the initial entry and arrests were lawful, pursuant to Penal Code section 844 and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, all of the evidence acquired by the police after the arrest of Baldwin was 'fruit of the poisonous tree.' Thereafter on January 23, 1976, this court granted the People's motion to augment the record with the transcripts of the preliminary hearing ² and the hearing on the 995 and 1538.5 motions. The only evidence before the superior court at the suppression hearing was the testimony of Officers Hoffman and Stover, although references were made to the facts adduced at the preliminary. During the discussion on the 995 motion, the court indicated it had read the transcript of the preliminary hearing, but indicated that neither the preliminary transcript nor the search warrant was considered at the time the motion to dismiss was grantd.

Thereafter, the People, erroneously believing that the preliminary transcript was properly a part of the record on appeal, filed their first opening brief containing references to he preliminary hearing with this court on November 5, 1975. After Baldwin's counsel pointed out that the transcript of the preliminary was never introduced into evidence before the superior court, ³ the People, relying on People v. Cagle, 21 Cal.App.3d 57, 98 Cal.Rptr. 348, first argued that the case gives a reviewing court the discretion and authority to review the transcript of the preliminary hearing. ⁴ Subsequently, this court granted the People's motion to file a revised opening brief that made no reference to the preliminary transcript; this brief was filed on February 11, 1976. The People, pursuant to Cagle, supra, and California Rules of Court, rule 12, also move to augment the record with the search warrant, its affidavit and return.

Viewing the record of the suppression hearing most strongly in favor of the specific findings and order of the court below, as we must, the following pertinent facts appear: About midnight on November 6, 1974, Fremont Police Officer Hoffman was on routine patrol in the 'Gentry Plan,' a relatively isolated residential section in the northwest portion of the city that had a high burglary rate per capita of housing during the preceding six months. ⁵ Hoffman noticed that the windows of a pickup truck parked in front of the house at 32978 Lake Michigan Avenue were not covered with moisture. As the windows of most of the vehicles parked in the neighborhood were vaporized, Hoffman assumed that the truck had recently arrived and believed that a burglary might be in progress. His suspicions were confirmed when he looked into the truck and noticed a dog and several tool boxes. In addition, a dim light shone from the front window. Hoffman believed that a flashlight could be the source of the dim light. Accordingly, he ran a police radio check on the pickup and received information that the truck was registered in San Leandro to defendant Martinez; there were no outstanding warrants on the truck or Martinez.

Based on his observation of a recently arrived out-of-town truck with tool boxes and a dog, the dim light in the house and his knowledge of the high burglary rate in the neighborhood, Hoffman concluded that a burglary might well be in progress. He checked the windows and front door of the home for signs of forced entry and found none. However, he heard what sounded like the sliding of a chain lock and stood and listened at the door. Hoffman then knocked 'pretty loud' on the door and received no response; his second knock also produced no sound from within. Hoffman, however, believed that 'possibly there was someone . . . inside . . . (who) didn't want to respond.' He knocked a third time. Finally, defendant Baldwin opened the door a few inches. To his surprise, Hoffman was overwhelmed by the smell of burning marijunan and stepped back. He then asked Baldwin whether Martinez was inside and asked to talk to him in order to 'stall for a little bit of time . . . to think,' and Baldwin agreed. Baldwin stepped back into the home and closed the door behind him. Hoffman made no attempt to arrest Baldwin, but instead walked down the driveway to meet Officer Stover, who had responded in three minutes to Hoffman's call for assistance. Hoffman and Stover conversed for a brief period, then returned to the front porch and 'waited for a period of time,' intending to arrest 'those people inside the residence' for knowingly being in a place where marijuana was being used. Hoffman could not remember whether he again knocked on the door, but did not believe he did so. When Martinez opened the door and came outside, Hoffman placed him under arrest for knowingly being in a place where marijuana was used (Health & Saf.Code, § 11365), ⁶ a misdemeanor (Pen.Code, § 17, subd. (a); Health and Saf.Code, §§ 11362, 11374). Stover was also conscious of the strong smell of marijuana when the door opened as Martinez came out.

Although Hoffman could not see anyone else inside the home and was not certain whether anyone was behind the door, he put his foot in the doorway. When the door began to close, Hoffman 'kind of knocked and pushed . . . opening the door back up' and stepped through the doorway into the home. At first, Hoffman did not see anyone inside, but then discovered Baldwin behind the door and also placed him under arrest for the same offense as Martinez (Health and Saf.Code, § 11365). Stover also entered. Admittedly, neither officer had obtained a search warrant.

After the entry, Hoffman ordered Baldwin and Martinez into the living room; there, Hoffman first saw Cano seated on the couch. Hoffman then placed all three under arrest for presence in a place where marijuana was being used (Health and Saf.Code, § 11365). Neither officer met any physical resistance from Martinez, Cano or Baldwin. Baldwin at all times was cooperative. When Stover asked if anyone else was in the house, Baldwin indicated that other occupants of the premises were absent and that the only other person present was his little sister, who was asleep upstairs. Stover proceeded upstairs and found the little girl asleep.

After returning downstairs to the dining area, Stover saw a 'roach' and clay pipe on the table. Hoffman, who had remained downstairs to watch the three arrested defendants, had also seen the table, but was unable to identify the items on it as contraband.

However, disbelieving Baldwin's statement and relying the 'possibility' that some additional persons were present in the home, Stover proceeded to search the unlighted back rooms downstairs with a flashlight. Stover found narcotics and marijuana in various stages of growth and returned to the living room. Stover imformed Hoffman of the contents of the downstairs rooms. Hoffman then told defendants they were also under arrest for unlawful...