People v. Edwards

Decision Date24 September 1969
Docket NumberCr. 12872
CourtCalifornia Supreme Court
Parties, 458 P.2d 713 The PEOPLE, Plaintiff and Respondent, v. Robert EDWARDS et al., Defendants and Appellants.

Howard E. Beckler, Hollywood, for defendants and appellants.

A. Wallace Tashima, Los Angeles, as amicus curiae on behalf of defendants and appellants.

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

BURKE, Justice.

An information was filed charging Robert and Jennifer Edwards with violating Health and Safety Code sections 11530.5 (possession of marijuana for sale) and 11911 (possession of a restricted dangerous drug for sale). A jury trial was waived, and the case was submitted on the preliminary hearing transcript. The court found defendants guilty on each count. They appeal contending, among other things, that the trial court erred in admitting, over objection, evidence of marijuana found in a search of their trash can. We have concluded that the contention is meritorious and that the judgment must be reversed.

The sole witness at the preliminary hearing was Detective Bernie Hern of the Riverside County Sheriff's office, who testified as follows:

Shortly after 9 p.m. on January 13, 1967, Hern contacted Mr. Hansen, who lived next door to defendants, and Hansen reported that about a week before he had seen on defendants' back porch a large plastic bag containing described packages, one of which was torn and contained a dark green vegetable substance that appeared similar to alfalfa but did not smell like alfalfa and had a 'small funny type seed.'

After discussing this information with other officers, Hern, accompanied by Detective Oden, walked down the railroad tracks behind defendants' residence and entered into 'the open back yard area' of that residence. There the officers observed three trash cans 2 or 3 feet from the back porch door. The officers did not have a search warrant. Inside one of the trash cans they found, among other things, a bag which contained marijuana--'possibly enough to roll a couple of cigarettes or more' and which had 'Other stuff on top of it.'

Hern took the marijuana back to his office to examine it more carefully. He and other officers then returned to the area of defendants' house where they conducted a 'stake out' from 12:30 a.m. until 4:50 a.m. when Hern, who was driving in his car, saw a vehicle that had been described as belonging to Mr. Edwards pull into the front yard of the house. Hern returned to the other officers and discussed approaching the residence.

Two officers then went to the rear door, and Hern, accompanied by several officers, went to the front door. Hern knocked, and a male voice from the upstairs asked 'Who is it?' Hern replied, 'Come on down. I want to talk to you.' Defendant Robert Edwards crossed the dining room, approached the front door, and asked 'What do you want?' Hern identified himself and stated in a loud voice 'Open the door. I want to talk to you.' Through the glass portion of the door Hern saw Robert Edwards 'hurriedly proceeding' from the living room toward the dining room. The officers then forced open the door and arrested him in the dining room. Two officers were sent upstairs to 'contact Mrs. Edwards and bring her down,' and she came down moments later accompanied by the officers. Hern advised them that they were under arrest for 'possession of marijuana, as to the possession of marijuana found in the trash receptacle. * * *' He asked, but was not given, permission to search the house. The officers nevertheless conducted a search of the house and in an 'upstairs closet' found marijuana inside a duffel bag and L.S.D. and marijuana inside a suitcase. They also discovered marijuana in a sifter in the dining room, L.S.D. in the living room, and marijuana in a can on a bathroom shelf. Robert Edwards led the officers to a hole under the house, where additional marijuana was found, and particles (apparently of marijuana) were found in Edwards' vehicle. The officers did not have an arrest or search warrant.

Since the search of the trash can was without a warrant the burden was on the prosecution to show proper justification. (People v. Kanos, 70 A.C. 397, 401, 74 Cal.Rptr. 902, 450 P.2d 278; People v. Lara, 67 Cal.2d 365, 373, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Henry, 65 Cal.2d 842, 845, 56 Cal.Rptr. 485, 423 P.2d 557.) The Attorney General argues that the search was valid because, he asserts, the premises around a house are not protected by the Fourth Amendment of the United States Constitution, 1 made applicable to the states by the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643, 655--657, 81 S.Ct. 1684, 6 L.Ed.2d 1081), or article I, section 19, of the California Constitution, which contains an essentially identical guarantee of personal privacy.

As hereafter discussed, a number of cases involving claims of unconstitutional searches or seizures in open fields or grounds around a house have stated their conclusions in terms of whether the place was a 'constitutionally protected area.' That phrase, however, does not serve as a solution in all cases involving such claims, and we believe that an appropriate test is whether the person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable governmental intrusion. Measured by that test, as we shall see, the search of the trash can was unlawful under the circumstances here appearing.

In Hester v. United States, 265 U.S. 57, 58--59, 44 S.Ct. 445, 68 L.Ed. 898, the United States Supreme Court enunciated the 'open fields' doctrine. There officers concealed themselves from 50 to 100 yards from the house of Hester's father and saw Hester leave the house and hand a bottle to one Henderson. When an alarm sounded, Hester and Henderson ran. Hester dropped a jug which broke, and Henderson threw away the bottle. The officers retrieved the jug and bottle, as well as a broken jar that was thrown from the house, and recognized their contents as moonshine. The opinion states, 'It is obvious that even if there had been a trespass, the (officers') testimony was not obtained by an illegal search or seizure. The defendant's own acts, and those of his associates, disclosed the jug, the jar and the bottle--and there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned. * * * The only shadow of a ground for bringing up the case is drawn from the hypothesis that the examination of the vessels took place upon Hester's father's land. As to that, it is enough to say that, apart from the justification, The special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law.' (Italics added.)

The 'open fields' doctrine of Hester v. United States, Supra, 265 U.S. 57, 44 S.Ct. 445, has been applied by many lower federal court decisions in upholding the legality of a search or seizure. (E.g. McDowell v. United States (8th Cir.) 383 F.2d 599, 603 (items seized in fields separated from the defendant's farm buildings and about one-fourth to one-half of a mile distant therefrom); Care v. United States (10th Cir.) 231 F.2d 22, 25 (search of cave used as a distillery in a field across a road and more than a block from the defendant's home); Koth v. United States (9th Cir.) 16 F.2d 59, 61 (search upon open premises apparently about a quarter of a mile from the house).)

The decisions of the lower federal courts, however, contain conflicting statements as to whether the Ground area of the curtilage 2 is protected by the Fourth Amendment (see Davis, Federal Searches and Seizures (1964) pp. 14--15). Some, relying on Hester v. United States, Supra, 265 U.S. 57, 44 S.Ct. 445, have declared that the 'grounds' or 'enclosed or unenclosed * * * grounds or open fields around * * * houses are not included in the prohibition of the Fourth Amendment.' (Monnette v. United States (5th Cir.) 299 F.2d 847, 850; Martin v. United States (5th Cir.) 155 F.2d 503, 505; see United States v. Hayden, D.C., 140 F.Supp. 429, 135; 79 C.J.S. Searches and Seizures § 13, pp. 790--791.) Under the foregoing rule it was held that the Fourth Amendment was not violated by the examination of a jug left on the ground under a car apparently parked by the porch of a shack belonging to one of the defendants (Martin, supra) or by the detection of an odor by the porch of the defendant's premises (Monnette, supra).

Other lower federal courts, however, have declared that 'The protection afforded by the Fourth Amendment, insofar as houses are concerned, has never been restricted to the interior of the house, but has extended to open areas immediately adjacent thereto.' (E.g. Wattenburg v. United States (9th Cir.) 388 F.2d 853, 857; see Rosencranz v. United States (1st Cir.) 356 F.2d 310, 313.) Wattenburg, supra, stated (388 F.2d at p. 857), 'The differentiation between an immediately adjacent protected area and an unprotected open field has usually been analyzed as a problem of determining the extent of the 'curtilage," and Wattenburg held that a stockpile of trees in the backyard of a motel, not more than 35 feet therefrom, was within the curtilage of the abode of Wattenburg, who resided at the motel, and therefore protected by the Fourth Amendment.

Several California decisions, in rejecting claims of unlawful searches and seizures, have stated that 'the premises around a house' or "enclosed or unenclosed grounds or open fields' around a house' are not protected by the Fourth Amendment. (E.g. People v. Shields, 232 Cal.App.2d 716, 719, 43 Cal.Rptr. 188, 191 (evidence found in fenced rear yard, used as auto wrecking yard, on premises where the...

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