People v. Colonna, Cr. 5509

• Decision Date: 12 April 1956
• Docket Number: Cr. 5509
• Citation: 295 P.2d 490,140 Cal.App.2d 705
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Louis COLONNA, Defendant and Appellant.

Page 490

295 P.2d 490

140 Cal.App.2d 705

The PEOPLE of the State of California, Plaintiff and Respondent, v. Louis COLONNA, Defendant and Appellant.

Cr. 5509.

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

April 12, 1956.

John G. Thorpe, Roger M. Sullivan, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles county, defendant was charged with a violation of Health and Safety Code section 11500, a felony, in that he 'did willfully, unlawfully and feloniously have in his possession flowering tops and leaves of Indian Hemp (cannabis sativa)'. It was also charged that on or about March 12, 1953, defendant was convicted of a violation of the aforesaid code section, a misdemeanor. Defendant pleaded not guilty and denied the prior conviction. By stipulation, the People's case was submitted on the transcript of the preliminary examination, with the reservation that both the prosecution and defense might submit further testimony. Defendant also reserved the right to object to any testimony contained in the transcript of the preliminary hearing. When the trial judge announced he had read the transcript, the defendant objected '* * * to the admission of any evidence or any testimony obtained by the officers as a result of their entry of Apartment No. 5 on the basis that it was an illegal search and seizure as is prohibited in the rule of evidence of the case of People versus Cahan.' The objection was overruled, the court adjudged the defendant guilty and found the allegation of a prior conviction true. Subsequently the court ordered that its finding of the truth of the prior conviction be stricken, and defendant was sentenced to six months in the county jail. From the judgment of conviction he prosecutes this appeal.

Concerning the factual background surrounding this prosecution, the record reveals that on the evening of April 9, 1955 officers of the Los Angeles Police Department entered the premises of the Nineford Apartments in the city of Los Angeles. Officer O'Grady talked to the landlady and inquired as to who lived in apartment 5. The officers then went to that apartment. Officer O'Grady then 'tried the handle (of the door) to see whether or not it would open', inserted a pass key, then 'went straight through the (opened) door', and 'charged in' the room.

Inside, Officer O'Grady first observed defendant seated on a divan, in front of a coffee table, where he then observed, '* * * six white wrapped paper cigarettes and a quantity of loose green leafy material and a paper bag containing some additional green leafy substance * * *' which was later analyzed and determined to be cannabis sativa (marihuana). The officer then said: 'Well, Red, what about it?' Defendant replied: 'Well, you got me, you got me. I am dead * * *.'

Officer O'Grady then searched defendant's person. Defendant '* * * reached in his right coat pocket and threw a cigarette down on the coffee table and then said, 'It is all mine * * *. Take me over. All of it belongs to me.'' The cigarette was also analyzed and determined to contain marihuana. The search of the apartment continued.

Apartment No. 5 of Nineford Apartments was leased to one Joy Belle Sanzone, also known as Joy Belle Noble. Miss Sanzone was observed by Officer O'Grady, for the first time, a few seconds after his 'charge' into the apartment. The officers then took defendant and Miss Sanzone to the Narcotic Division Station where the former freely and voluntarily executed a written confession.

Upon the conclusion of the People's case in chief, defendant rested his case without offering any testimony.

The sole question presented on this appeal is whether the evidence objected to was obtained in violation of the 4th Amendment to the Constitution of the United States, Article I, section 19 of the Constitution of the State of California, and was therefore inadmissible under the exclusionary rule announced in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905.

The evidence disclosed that the arresting officers had no search warrant, no warrant of arrest for anyone, did not know whether the apartment was occupied at the time they 'went straight through the door'. No attempt was made by the prosecution to prove that the officers were in pursuit of a suspected law violator, or were acting on information or belief that required immediate action and precluded the possibility of obtaining a search warrant.

It is respondent's contention that appellant could not avail himself of the constitutional guarantees by reason of his status as a guest in the apartment. That in order to have standing enabling him to object to the admissibility of evidence seized during an unreasonable search, the objector must 'at least be dwelling' in the premises illegally searched, and that one who is not the owner, lessee or lawful occupant of the premises searched cannot raise the question under the federal and state constitutions of unlawful search and seizure.

However, this contention was rejected by the Supreme Court in the case of People v. Martin, 45 Cal.2d 755, 290 P.2d 855, at page 856, wherein the court stated:

'The Attorney General contends that since defendant disclaimed any interest in the premises searched and the property seized, his constitutional rights could not have been violated and that therefore he has no standing to challenge the legality of the searches and seizures. [Citing cases.] We cannot agree with this contention.

'It is true that in Goldstein v. United States, 316 U.S. 114,...