People v. Grossman

• Decision Date: 30 July 1971
• Docket Number: Cr. 19498
• Citation: 96 Cal.Rptr. 437,19 Cal.App.3d 8
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Steven Arnold GROSSMAN, Defendant and Respondent.

Page 437

96 Cal.Rptr. 437

19 Cal.App.3d 8

The PEOPLE, Plaintiff and Appellant, v. Steven Arnold GROSSMAN, Defendant and Respondent.

Cr. 19498.

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

July 30, 1971.

Hearing Denied Sept. 22, 1971.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Joseph P. Busch, Jr., Dist. Atty., Harry Wood, Head, Appellate Division, and Robert J. Lord, Deputy Dist. Atty., for plaintiff and appellant.

David E. Kenner, Van Nuys, for defendant and respondent.

THOMPSON, Associate Justice.

This is a People's appeal from an order setting aside two counts of an information pursuant to a motion filed under Penal Code section 995. We reverse the judgment.

On February 27, 1970, Deputy Sheriff Bert A. Natisin presented to a magistrate an affidavit in support of a search warrant. The affidavit is concededly sufficient in its statement of probable cause. It requests authority 'to search the premises located at * * * 13328 Merkel Ave., Apt. A Paramont (sic)--single family units upper and lower levels and the carport area of Apartment A. Steven A. Grossmann (sic) and 'Cookie' Grossmann (sic),' together with a described automobile and the persons of the suspects for 'Dangerous Drugs--Seconal capsules amphetamine tablets and Marijuana, a narcotic.' The same day the magistrate issued his warrant to search 'the premises located and described as 13328 Merkel Ave., Apt. A, Paramont (sic), multi-unit apartment, upper and lower levels, green stucco construction' together with the automobile and the persons of the suspects for 'Seconal capsules, Amphetamine tablets and Marijuana in both bulk and loose form.'

At 6 p.m. on February 27, Deputy Sheriffs Ventor and Natisin, together with other officers, went to the 13328 address to execute the search warrant. They knocked on the door of Apartment A but received no response. Respondent's wife arrived while the officers were at the building. She was told that they possessed a search warrant which they were serving upon her. Respondent's wife admitted the officers. Respondent was inside asleep. Within an upstairs bedroom of the apartment, the officers discovered a homemade syringe, a spoon, and a small packet of white paper containing a substance apparently heroin. In a medicine cabinet, they found one gram of what appeared to be hashish, twenty-seven red capsules that appeared to be seconal, and one and one-half tablets resembling amphetamine. They proceeded with respondent to the carport of the building located 75 to 80 feet from the front door. At the back of the carport was a closed and locked cabinet lettered 'A'. Utilizing keys obtained from respondent, the officers opened the cabinet. The officers found in the cabinet in excess of 10,000 seconal capsules, over 4,000 amphetamine tablets, a triple-beam scale, a container of wax paper bags, and rubber bands.

Respondent was charged with possession of barbituric acid (seconal) for sale, possession of amphetamine for sale, possession of heroin, and possession of marijuana. At his preliminary examination before the same megistrate who issued the warrant, he moved to exclude all evidence found in the carport cabinet on the ground that the cabinet was not included in the premises described in the search warrant and that a warrantless search of the cabinet as incident to an arrest with probable cause was precluded by the rule of Chimel. The People countered with the argument that the description of the premises to be searched contained in the warrant authorized a search of the cabinet and that in any event respondent had properly and voluntarily consented to that search. There is conflicting evidence on the issue of consent to the search. The magistrate, however, expressly declined to rule on the issue of consent. He admitted the evidence of contraband found in the carport cabinet, reasoning that the warrant authorized a search of that area because the omission of the carport from the description in the search warrant was a clerical error. Respondent was bound over for trial in the superior court.

In the superior court, respondent moved, pursuant to Penal Code section 995, to set aside Counts I and II of the information charging possession for sale of barbituric acid and amphetamine. He based his motion upon the ground that those counts were not supported by competent evidence since the search which disclosed the evidence was illegal as outside the scope of the warrant. The trial court granted the motion to set aside the two counts of the information ¹ and the People appealed pursuant to Penal Code section 1238, subdivision 1.

Our examination of the record and of authority, none of which was cited by the district attorney to the trial judge, indicates that a search of the carport cabinet was authorized by the search warrant. Hence, we conclude that the order setting aside Counts I and II of the information must be reversed.

While the affidavit upon which the search warrant in the case at bench is based states probable cause to search the carport area and requests authority for such a search, the warrant as issued describes the premises to be searched as 'the premises located and described as 13328 Merkel Ave., Apt. A * * * multi-unit apartment, upper and lower levels. * * *' The case at bench...