People v. Denne

• Decision Date: 14 May 1956
• Docket Number: Cr. 5455
• Citation: 297 P.2d 451,141 Cal.App.2d 499
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jeremiah K. DENNE, Defendant and Appellant.

Page 451

297 P.2d 451

141 Cal.App.2d 499

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jeremiah K. DENNE, Defendant and Appellant.

Cr. 5455.

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

May 14, 1956.

Jeremiah K. Denne, in Propria Persona, and Kindel & Anderson and David E. Agnew,* Los Angeles, for appellant.

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

FOX, Justice.

Defendant was charged, in an amended information, with violation of section 11500 of the Health and Safety Code in that he unlawfully had marijuana in his possession. He pleaded not guilty. He was also charged with two prior felony convictions, to wit, a violation of section 503 of the Vehicle Code and a violation of section 11500 of the Health and Safety Code, both of which he admitted. A trial by jury resulted in a verdict finding defendant guilty of the offense charged. His motion for a new trial was denied and defendant was sentenced to a term in the state prison. He appeals from the judgment of conviction and the order denying his motion for a new trial.

Defendant's principal contention is that prejudicial error was committed by the trial court in permitting the introduction of evidence seized in the course of an unreasonable search of his premises of the character condemned in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905. However, an examination of the particular and peculiar circumstances of the case at bar makes manifest the inapplicability of the exclusionary rule enunciated in the Cahan case.

In July, 1951, defendant was convicted on two counts of violating section 11500 of the Health and Safety Code (possession of marijuana and heroin) and was sent to the state prison. ¹ On about April 12, 1954, defendant was released on parole. The Adult Authority made the continuance of his parole subject to certain conditions, these providing, in part, that defendant 'may not possess, use or sell any narcotics in violation of law,' and that he must avoid 'former inmates of penal institutions and individuals of bad reputations.' Provision 12 of the articles of parole informed defendant that 'Your civil rights have been suspended. Therefore you may not enter into any contract, marry, engage in business or execute a contract without the restoration of such civil rights by the Adult Authority.' ²

Following his admission to parole, defendant obtained employment. In October, 1954, parole officer Haydis took over the supervision of defendant's activities as a parolee and in the next six months he had about fifteen personal visits with defendant. As the result of these contacts, parole officer Haydis entertained the view that defendant was making satisfactory progress in his pattern of readjustment to society. In March, 1955, defendant secured swing-shift employment (4:00 p. m. to midnight) on the assembly line of an automobile plant in South Gate, California. Shortly thereafter disquieting information about defendant reached Haydis.

Late in the afternoon of March 25, 1955, Haydis met with another parole officer named Lyons, with whom he planned to work on official business that night. Lyons had under his supervision a parolee named Martin Leonard, whom he had transported to the Los Angeles County Jail earlier that month. Leonard had admitted to Lyons that he was trafficking in narcotics. Among Leonard's personal effects was found a picture of defendant. Leonard told Lyons that he knew defendant, that he was aware that defendant was a parolee, and had several times attended parties at defendant's apartment. Lyons recounted these facts to Haydis while they were having dinner together and showed him the picture of defendant which had been taken from Leonard's possession. Haydis thereupon requested Lyons to accompany him to defendant's home for the purpose of taking him into physical custody for violation of the conditions of parole.

The parole officers arrived at the apartment building in which defendant resided between 8:30 and 9:00 p. m. His quarters were dark when the officers rang his doorbell and received no response. They then inquired of the building manager, Jack Williams, about whether defendant was at home. Mr. Williams stated he wasn't sure, though he understood defendant was ill and did not go to work that day. The officers again tried to gain admission by knocking on the door but failing, returned to Williams' apartment and asked permission to enter defendant's apartment. Williams stated he would get the key to the apartment but then discovered he could not locate it. Accompanied by the officers, he went to a window at the rear of the apartment. Standing first on a garbage pail and then on a tool shed, Williams inserted a screw driver under the sill to raise the unfastened window and then climbed into the apartment. Haydis and Lyons returned to the front door where they were admitted by Williams.

The officers first inspected the apartment looking for defendant and ascertained he was not present. In the presence of Williams, they then undertook a search of each room of the apartment. In a cabinet drawer in the kitchen Lyons found a package whose contents he examined and recognized as marijuana. ³ After completing their search, they went to defendant's place of employment and at about midnight took him into custody. He was subsequently transferred to the county jail.

When defendant was awaiting trial he wrote a letter to Parole Officer Haydis stating he had just been informed that the girl with whom he was keeping company had been made pregnant by him. The letter, received in evidence over defendant's general objection, continued: 'You see, now I don't know what to do about my case. I had intentions of having a jury trial and take a chance. But now I've [six] thinking of having a court trial and take a chance of getting county jail time and hope I get put back on parole and get married. Like I said, it was found in my possession and possession is nine tenths of the law. But I was wondering if there's anything you can do to help me. Mr. Haydis, as of now I have just made up my mind. On May 13, I am going to change my plea to guilty and leave the rest up to the judge. And if there's any way you can help me get county jail time, I would appreciate it very much * * *' Haydis visited defendant at the jail a week later and advised him not to plead guilty to anything he did not do.

At the trial, the marijuana found in defendant's apartment was admitted over his objection that it was illegally seized pursuant to an unconstitutional search. He admitted that he had used marijuana subsequent to his admission to parole but stated he had discontinued the practice because of his intention to marry. He explained his letter to Haydis was written after he learned of his girl friend's pregnancy. He testified, 'I figured I would throw myself on the mercy of the court and pray that I would get county jail, and I was hoping that I would get out in about six months before the baby was born and get a job and save a few dollars and then get married.' Martin Leonard, called as a witness by defendant, testified that he had originally met defendant when they were prison inmates. He stated that it was he who placed the marijuana found in defendant's apartment in the kitchen drawer. He testified he did so on March 10, 1955, when he broke into defendant's apartment by way of the rear window when no one was at home. He never told defendant what he had done. He stated that he had been to defendant's apartment previously on five or six occasions when one Robert Miller was sharing the flat with defendant. His visits were for the purpose of seeing Miller.

Relying on People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, defendant predicates his main argument for reversal upon the premise that the marijuana found in his apartment was legally inadmissible evidence, being the product of an unreasonable search and seizure in violation of his rights under the Fourth Amendment of the United States Constitution. We need not express our views on, nor here decide, whether the protection of the Fourth Amendment, born of the jealous regard of a free people to preserve their civil liberties and rights of privacy against invasions effectuated under color of police or governmental authority, extends to a convict serving the unexpired portion of his sentence on parole from a penal institution. Anomalous as it may appear, we will assume, arguendo, that the guarantees of the Fourth Amendment apply to such a person. (See Martin v. United States, 4 Cir., 183 F.2d 436.) But the constitutional immunity embodied therein is granted not against all searches and seizures but only against those which are 'unreasonable.' U.S.Const. Amend. IV; California Constitution, Art. I, § 19; People v. Winston, 46 Cal.2d 151, 293 P.2d 40; People v. Coleman, 134 Cal.App.2d 594, 599, 286 P.2d 582. Thus the crucial question presented is whether the search and seizure conducted by the parole officers was unreasonable and therefore an infringement of defendant's right to be secure against such a search. What constitutes a reasonable search cannot be encapsuled in any rigid formula, nor determined by any fixed standard or single touchstone. In declining to formulate any one test of the reasonableness of a search, the United States Supreme Court remarked, in United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 434, 94 L.Ed. 653: 'The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.' Commenting further on the ultimate legality of any particular search, the court said, 339 U.S. at page 66, 70 S.Ct. at page 435: 'The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. * * * The relevant test is * * * whether the search was reasonable. That criterion in turn depends upon the facts and circumstances--the total...