People v. Buckner

• Citation: 35 Cal.App.3d 307,111 Cal.Rptr. 32
• Decision Date: 14 November 1973
• Docket Number: Cr. 21918,22000 and 22415
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Henry BUCKNER, Jr., et al., Defendants and Appellants.

Page 32

111 Cal.Rptr. 32

35 Cal.App.3d 307

The PEOPLE, Plaintiff and Respondent, v. Robert Henry BUCKNER, Jr., et al., Defendants and Appellants.

Cr. 21918, 22000 and 22415.

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

Nov. 14, 1973.

Luke McKissack, Hollywood, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Robert F. Katz and William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

Defendants were charged by information with conspiracy to sell marijuana (Pen.Code, § 182) in Count I, sale of marijuana (Health & Saf. Code, § 11531) in Count II, possession of marijuana for sale (Health & Saf. Code, § 11530.5) in Count III, and possession of marijuana (Health & Saf. Code, § 11530) in Count IV. Motions pursuant to Penal Code sections 995 and 1538.5 to set aside the information and to suppress evidence were denied.

The cases of defendants Buckner and Marx were submitted on the transcript of the preliminary hearing. Each was found not guilty of Counts I, II, and IV, and guilty of Count III. Sentences of each for the terms prescribed by law were imposed but suspended; probation was granted on condition, inter alia, that defendant Buckner spend the first 10 months, and defendant Marx, the first 7 months, in the county jail. In lieu of granting Marx's motion for a new trial, the court reduced the offense to possession of marijuana a lesser included offense. (Health & Saf. Code, § 11530.) Defendant Threatt withdrew his plea of not guilty to Count II (Health &amp Saf. Code, § 11531 violation), and pled guilty. Sentence was imposed for the term prescribed by law, but suspended; probation was granted on condition, inter alia, that defendant Threatt spend the first 8 months in the county jail. Defendants appeal.

Viewing the evidence in the light most favorable to respondent, as required on appellate review (People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321), the facts are as follows: Early in January 1970, Los Angeles Deputy Sheriff Ventor received information from informant Pitchiano that one Charles Kaufman was dealing in large quantities of marijuana. Informant and Sheriff Ventor arranged to contact Kaufman, and an attempt was made to set up a purchase of 50 kilos of marijuana. A deal was not then consummated, but Kaufman informed the callers that a deal could perhaps be arranged in the future. On April 1, 1970, Pitchiano placed a call to Kaufman at his residence. The call was monitored by members of the Sheriff's Department. A deal was arranged for the purchase of approximately 100 kilos at $130--135 apiece. Pitchiano was to bring $5,000 to Kaufman's residence to show Kaufman. The kilos were to be delivered elsewhere and then the balance would be be paid. At approximately 9:30 p.m., Pitchiano and Deputy Ventor arrived at Kaufman's residence in a van; Deputy Natisin arrived in another vehicle, carrying the money in the trunk of the car. They met with Kaufman on the front steps. The $5,000 was shown to Kaufman by Natisin. Natisin then drove to a prearanged location to await a phone call from Pitchiano instructing him to bring back to Kaufman's residence the balance due. Kaufman then arranged to have a Christopher Deegan accompany Deputy Ventor to the location where the marijuana was to be obtained. Deegan drove Ventor to that location and dropped him off, the understanding being that the car would return in approximately 15 minutes with the kilos. Deegan drove off, followed by a deputy sheriff. The deputy observed the vehicle being driven to a house, from which several boxes were locaded into the vehicle. Deegan left the house carrying a suitcase, and departed in another car. Defendant Threatt then drove the van back to the location where Ventor had been dropped off. After locating Ventor, the delivery was made. Ventor then placed a call to Pitchiano at Kaufman's residence and told him that he had seen the marijuana and to get the money. Threatt was later arrested at this location when additional officers arrived.

Meanwhile, Kaufman's residence was under surveillance by members of the Sheriff's Department. At approximately 10:30 p.m., Deputy Chavez observed a green G.T.O. arrive at the Kaufman residence. The passenger, Deegan, carrying a suitcase, exited from the vehicle and entered the Kaufman residence. Immediately thereafter, Kaufman was seen existing from the dwelling from the dwelling by the front door. At this time, Deputy Natisin gave the prearranged signal to arrest Kaufman. Kaufman was met near the door, but outside the dwelling, by Natisin, who told Kaufman he was under arrest for violation of the state's narcotic law. Other deputies converged on the scene. A Deputy Tolfa testified that he detected the odor of burning marijuana coming from inside the house. ¹ The front door of the dwelling was open, and the house was entered by several deputies, followed by Deputy Tolfa. ² Prior to their enrance, none of the deputies announced his presence, demanded admittance, or explained the purpose for which the officers' entrance was desired. After numerous officers had entered the house, Kaufman was taken into the house by Natisin. After several other officers had preceded him, Deputy Chavez upon entering went to the kitchen, where he observed defendant Buckner seated with others around a table. ³ A jar containing marijuana seeds was found on top of the kitchen table. Also observed on the table was a smouldering marijuana cigarette in the ashtray. When the deputies entered the living room, they observed defendant Marx sitting on a couch. A marijuana cigarette was in an ashtray in front of him. In the company of Kaufman, several deputies and a federal agent then proceeded upstairs to look for additional people that might be involved. Inside an upstairs bedroom Deputy Tolfa observed three packages in plain view on the bed which were wrapped in the manner in which marijuana is customarily wrapped. On the floor near the head of the bed were a black and white scale and a fourth similarly wrapped package. All said packages were later found to contain marijuana. Tolfa then went to another bedroom, still searching for other persons, and in that bedroom observed a jar on the top of the table containing a green plant material resembling marijuana.

As grounds for reversal, defendants contend that (1) the evidence is insufficient to sustain a conviction for possession of marijuana with intent to sell, or for the sale of marijuana; (2) the arrest, search and seizure failed to comply with the provisions of Penal Code section 844; ⁴ and (3) the search of the dwelling was conducted in violation of the defendants' rights as guaranteed by the Fourth Amendment. We have concluded that defendants' second and third assignments of error have merit and compel a reversal of the convictions of defendants Buckner and Marx. However, since the conviction of defendant Threatt is in no way tainted by the illegal entry or search, it is affirmed.

In Beckers v. Superior Court, 9 Cal.App.3d 953, 958, 88 Cal.Rptr. 602, 604, the court states: 'Evidence of a search and arrest of a person in a dwelling, following an unlawful entry therein by the police . . . is inadmissible under the principles stated and applied in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; (Citations.)'

In Duke v. Superior Court, 1 Cal.3d 314, 82 Cal.Rptr. 348, 461 P.2d 628, the Supreme Court expressly recognized that Penal Code section 844 was enacted by the Legislature to protect the fundamental right of privacy of dwelling occupants and to insure the safety of police, innocent bystanders, and occupants who may be injured as a result of violent resistance to unannounced entries. (See also, People v. Arias, 6 Cal.App.3d 87, 93, 85 Cal.Rptr. 479.) Implicit within this construction is the intent that in the absence of extenuating circumstances which exceed the policy factors behind the statute (i.e., increased peril or frustration of arrest (People v. Smith, 63 Cal.2d 779, 797, 48 Cal.Rptr. 382, 409 P.2d 222)), the provisions of section 844 are to be complied with in all cases. (See, People v. Bradley, 1 Cal.3d 80, 87--88, 81 Cal.Rptr. 457, 460 P.2d 129 and People v. Norton, 5 Cal.App.3d 955, 86 Cal.Rptr. 40.)

Respondent argues, however, that the letter of section 844 has not here been violated since (1) the officers entered through an open door, and (2) notice of the officers' authority was imparted to Kaufman prior to entry, and due to the exigencies of the circumstances (i.e., Kaufman's knowledge of the transaction and arrest), section 844 was substantially complied with. ⁵

Clearly, standing alone, the fact of an open door would not justify the failure to comply with the provisions of section 844. (People v. Bradley, Supra, 1 Cal.3d 80, 87--88, 81 Cal.Rptr. 457, 460 P.2d 129; People v. Norton, 5 Cal.App.3d 955, 86 Cal.Rptr. 40; People v. Beamon, 268 Cal.App.2d 61, 64, 73 Cal.Rptr. 604.) The presence or absence of an open door does not affect the degree of privacy which the state is bound to afford an individual in his home. (See Sabbath v. United States, 391 U.S. 585, 589, 88 S.Ct. 1755, 20 L.Ed.2d 828; Greven v. Superior Court, 71 Cal.2d 287, 292, 78 Cal.Rptr. 504, 455 P.2d 432.) It does not affect the issues of the danger of violent confrontations between occupants and the police officers as intruders. (Greven v. Superior Court, Supra.) Nor does it affect the problems associated with possible injury to innocent occupants and police officers due to the unannounced entry. People v. Rosales, 68 Cal.2d 299, 304, 66 Cal.Rptr. 1, 437 P.2d 489. Unless the occupants know the identity and purpose of the intruders, their responses would in all likelihood be the same whether the intrusion was effected through a closed or an open door.

Respondent also contends that the arrest of...