People v. Clay

Citation78 Cal.Rptr. 56,273 Cal.App.2d 279
Decision Date22 May 1969
Docket NumberCr. 3544
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. James Henry CLAY, Defendant and Appellant.
OPINION

AULT, Associate Justice pro tem. *

James Henry Clay appeals his conviction, after court trial, of maintaining a place for the purpose of selling, giving away or using marijuana (Health & Saf. Code, § 11557), possessing marijuana (Health & Saf. Code, § 11530), and possessing marijuana for sale (Health & Saf. Code, § 11530.5).

Federal undercover narcotics agent Lusardi went to a house leased by Clay for the purpose of negotiating a purchase of hashish, a marijuana derivative. He entered the house at 1 p.m., December 14, 1967, saw Clay in the living room with several other people and noticed a strong odor of burning marijuana. Lusardi spoke with a man named Amaranthus who said he belonged to the Universal Life Church which dealt with the use and sale of marijuana and psychedelic drugs. They discussed the price and arrangements for delivery of five pounds of hashish. Amaranthus agreed to sell the narcotic for $5,500.00 but insisted Lusardi sign a card which contained statements he was not a police officer, an informant, a member of an investigative branch of any government and a number of other similar statements. Lusardi signed the card and left the residence. He returned shortly before 3:00 p.m. the same day, entered the rear of the house and walked into a bedroom where Amaranthus and one Tunnel showed him five glassine bags containing approximately five pounds of hashish. Lusardi examined the merchandise, said the money was in his car and walked out to get it.

At his car, Lusardi told another agent the hashish was in the house. The other agent passed the word on to a number of other officers who were staked out in the vicinity. Approximately fourteen agents and officers from the Federal Bureau of Narcotics, the Orange County Sheriff's Department and the District Attorney's Investigator's Office converged on the house.

When Lusardi and two of the other agents approached to within five feet of the house Lusardi heard loud voices and running inside the house; someone yelling 'It's the police! It's the police!'; and the sound of a shot being fired. Lusardi and the agents entered the house without knocking, announcing they were police or stating their purpose.

Inside the house, the agents and officers found the five pounds of bulk hashish, two smaller packets of marijuana in the living room, a half pound quantity of marijuana in a garage or shed attached to the house, traces of small pieces of hashish in a bedroom, marijuana debris and several marijuana cigarette butts on the living room rug and two smoking pipes which smelled of marijuana in the living room. The house smelled of burning marijuana or hashish at the time of the raid.

All the occupants of the house, including Clay who was in the living room, were arrested and given a Miranda warning. The officers found incense holders, psychedelic pictures and literature on mysticism, marijuana and LSD in the house and garage. It appeared some type of seance or group gathering had been held in the garage on a regular basis. The officers also found a number of cards similar to the one Lusardi was required to sign before he would be allowed to buy hashish.

The police searched Clay's clothing and found marijuana debris in his right coat pocket.

The court denied a Penal Code, section 1538.5 motion by Clay to suppress the marijuana evidence. Clay contends the officers were not justified in entering the house at 3:00 p.m. without a search or arrest warrant and without knocking, announcing who they were and stating their purpose as required by Penal Code, section 844. Non-compliance with section 844 may be excused when an officer acts on a reasonable and good faith belief compliance would increase his peril, frustrate an arrest, or permit the destruction of evidence. (People v. Rosales, 68 Cal.2d 299, 305, 66 Cal.Rptr. 1, 437 P.2d 489; see also People v. Gastelo, 67 Cal.2d 586, 588, 63 Cal.Rptr. 10, 432 P.2d 706; People v. De Santiago, 71 A.C. 18, 29, 76 Cal.Rptr. 809, 453 P.2d 353.) Such is the case here, where Lusardi heard loud voices, running about, a shout 'It's the police! It's the police!' and a shot being fired. The officers could reasonably believe, because of the fired shot, compliance with section 844 would increase their peril and those who were running and shouting inside were either trying to escape or destroy evidence.

Clay claims the evidence was insufficient to convict him of any of the three charges upon which he was tried. Evidence he was the lessee of and in the house when a sale of hashish was negotiated, narcotics were scattered throughout the premises, marijuana smoke was smelled and used marijuana smoking apparatus was present supports the conviction of maintaining the house as a place for selling, giving away or using marijuana. It has been held a single isolated instance of the forbidden conduct will not support a finding of maintaining a place for sale, giving away or using a narcotic. (People v. Horn, 187 Cal.App.2d 68, 72, 9 Cal.Rptr. 578; People v. Holland, 158 Cal.App.2d 583, 588--589, 322 P.2d 983.) Here, however, the circumstances surrounding the sale, the seller's statement the Universal Life Church dealt with the use and sale of marijuana, the requirement a buyer sign a card...

To continue reading

Request your trial
14 cases
  • People v. Pugh, H022984.
    • United States
    • California Court of Appeals
    • July 23, 2003
    ...[cocaine] or he is not." (People v. Theobald (1964) 231 Cal. App. 2d 351, 353, 41 Cal. Rptr. 758. Here, as in People v. Clay (1969) 273 Cal. App. 2d 279, 285, 78 Cal. Rptr. 56, "this is not a case involving multiple acts of possession separated by time or space." Accordingly, we shall rever......
  • Barnes v. State, 69969
    • United States
    • United States Court of Appeals (Georgia)
    • July 16, 1985
    ...(R.I.1982); State v. Bulhoes, 430 A.2d 1274(1) (R.I.1981); State v. Reis, 430 A.2d 749, 752 n. 7 (R.I.1981). Cf. People v. Clay, 273 Cal.App.2d 279, 78 Cal.Rptr. 56, 60 (1969). While for the most part these statutes and the cases construing them rely upon a theory of nuisance to invoke the ......
  • People v. Fleming, B241293
    • United States
    • California Court of Appeals
    • May 28, 2013
    ...People v. Marquez (1968) 259 Cal.App.2d 593; People v. Fitzwater (1968) 260 Cal.App.2d 478 [6 pounds of marijuana]; People v. Clay (1969) 273 Cal.App.2d 279; People v. Newman (1971) 5 Cal.3d 48, 53 [$4,000 worth of drugs].) Nothing in those cases requires such a large amount of narcotics to......
  • Keith v. State
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • July 22, 1976
    ...they may force entry without further announcement. See State v. Young, 76 Wash.2d 212, 455 P.2d 595 (1969); People v. Clay, 273 Cal.App.2d 279, 78 Cal.Rptr. 56 (1969); Commonwealth v. Dial, 445 Pa. 251, 285 A.2d 125 (1971); State v. Carufel, 112 R.I. 664, 314 A.2d 144 This assignment is ove......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT