People v. Clay, Cr. 3544

CourtCalifornia Court of Appeals
Writing for the CourtAULT; GERALD BROWN, P.J., and COUGHLIN
Citation78 Cal.Rptr. 56,273 Cal.App.2d 279
PartiesThe PEOPLE, Plaintiff and Respondent, v. James Henry CLAY, Defendant and Appellant.
Docket NumberCr. 3544
Decision Date22 May 1969

Page 56

78 Cal.Rptr. 56
273 Cal.App.2d 279
The PEOPLE, Plaintiff and Respondent,
v.
James Henry CLAY, Defendant and Appellant.
Cr. 3544.
Court of Appeal, Fourth District, Division 1, California.
May 22, 1969.
Hearing Denied Sept. 17, 1969.

Page 57

[273 Cal.App.2d 281] Sidney Lester and George H. Chula, Santa Ana, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jimmie E. Tinsley, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

AULT, Associate Justice pro tem. *

James Henry Clay appeals his conviction, after court trial, of maintaining a place

Page 58

for the purpose [273 Cal.App.2d 282] 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.

[273 Cal.App.2d 283] 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,...

To continue reading

Request your trial
14 practice notes
  • Barnes v. State, No. 69969
    • United States
    • United States Court of Appeals (Georgia)
    • 16 Julio 1985
    ...542 (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 ......
  • People v. Pugh, H022984.
    • United States
    • California Court of Appeals
    • 23 Julio 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......
  • People v. Fleming, B241293
    • United States
    • California Court of Appeals
    • 28 Mayo 2013
    ...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 infer ......
  • Keith v. State
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • 22 Julio 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
14 cases
  • Barnes v. State, No. 69969
    • United States
    • United States Court of Appeals (Georgia)
    • 16 Julio 1985
    ...542 (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 ......
  • People v. Pugh, H022984.
    • United States
    • California Court of Appeals
    • 23 Julio 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......
  • People v. Fleming, B241293
    • United States
    • California Court of Appeals
    • 28 Mayo 2013
    ...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 infer ......
  • Starview, Inc. v. Oregon Liquor Control Commission
    • United States
    • Court of Appeals of Oregon
    • 8 Octubre 1973
    ...may be met. Webb v. United States, 14 F.2d 574, 576, 49 A.L.R. 612 (8th Cir. 1926); People v. Clay, 273 Cal.App.2d[15 Or.App. 15] 279, 78 Cal.Rptr. 56 (1969). The testimony of petitioner's manager concerning the prevention of similar acts cannot support such an inference; rather, it support......
  • 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