People v. Icenogle

• Decision Date: 11 July 1977
• Docket Number: Cr. 29529
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Gail Lee ICENOGLE, Defendant and Appellant.

Page 637

139 Cal.Rptr. 637

71 Cal.App.3d 576

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gail Lee ICENOGLE, Defendant and Appellant.

Cr. 29529.

Court of Appeal, Second District, Division 4, California.

July 11, 1977.

Joseph E. Gerbac, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Owen Lee Kwong, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

By an amended information, defendant was charged in count I with having committed, on March 23, 1976, a violation of section 11351, subdivision (a), of the Health and Safety Code by having in her possession for purpose of sale a controlled substance, to wit, heroin. It was also alleged in count I that defendant possessed for sale one-half ounce or more of heroin within the meaning of Penal Code section 1203.07. In count II defendant was charged with having committed a violation of section 11350 of the Health and Safety Code on March 23, 1976, by having in her possession a controlled substance, to wit, heroin. The amended information also charged defendant with one prior felony conviction.

Defendant initially entered a plea of not guilty and denied the allegation with respect to the prior felony conviction. Thereafter, defendant made a motion to dismiss the information pursuant to Penal Code section 995. This motion was denied. Defendant also made a pretrial motion under Penal Code section 1538.5 to suppress all evidence--material objects and writings--secured by the police on the ground that such evidence was a product of an unlawful search and seizure of defendant's residence. The motion to suppress was also directed to heroin taken from defendant's person following her arrest after a search of defendant's apartment turned up other contraband items. In connection with the 1538.5 motion, defendant stipulated with the prosecution that the motion was to be determined on the basis of the testimony contained in the transcript of defendant's preliminary hearing and on the basis of the exhibits introduced in evidence at the preliminary hearing. Defendant's suppression-of-evidence motion was denied.

Thereafter, defendant entered a plea of guilty to count I of the information. Probation was denied and defendant was sentenced to prison for the term prescribed by law. On motion of the People, the allegation with respect to the 'one-half ounce or more of heroin,' alleged as a part of count I of the information, was ordered stricken. Count II of the information was dismissed in the interests of justice and the court made no finding with respect to the allegation of the prior felony conviction, no proof of the prior having been offered by the People.

Defendant appeals from the judgment of conviction. The appeal is appropriate since the basis of the appeal is directed to the trial court's denial of the motion to suppress evidence resulting from a claimed unlawful search and seizure. (Pen.Code, § 1538.5, subd. (m).) ¹

Evidence at the preliminary hearing consisted of the testimony of nine police officers, together with six items of material objects and writings admitted into evidence as exhibits. Donald Goldberg, a police officer for the City of Burbank, testified that on March 19, 1976, he received information from a confidential informant that David Vanderdecker was living in North Hollywood with defendant, his girlfriend, and that David was dealing in heroin. The informant gave Officer Goldberg a phone number for David. A check with the telephone company revealed that the telephone number was an unlisted number assigned to defendant at the address of 5142 Denny, Apartment 4, in North Hollywood. Approximately two days later, Officer Goldberg contacted the Department of Corrections and received information that David was on probation with a consent-to-search provision constituting one of the conditions of his parole. The parole condition provided as follows: 'Search: You shall submit to a search of your person, your residence, any property under your control upon request by your agent, any agent of the Department of Corrections, or Law enforcement officer.' (Emphasis added.)

On the dates of March 22 and 23, 1976, other police officers received similar information to the effect that David was dealing in heroin at the same address which the informant gave Officer Goldberg. Some of the officers who testified at the preliminary hearing stated that they had also been given information that defendant and David both lived at the Denny Street address and that both were involved in the sale of heroin.

On March 23, 1976, officers from the Burbank Police Department and the Los Angeles Police Department began an investigation of defendant and David. Several officers proceeded to keep defendant and David under surveillance while others began a surveillance of the premises at 5142 Denny Avenue. All of this surveillance began at approximately 3 p.m. of the afternoon of March 23, 1976. Defendant and David were seen driving a Volkswagen automobile. They were observed to drive to various locations, park, get out of their automobile and have conversations, varying in length, with drivers and occupants of other vehicles. On the basis of these observations, the officers formed an opinion that David had been involved in making sales of heroin to the various people whom David and defendant had met throughout the day.

At about 7:40 p.m., on March 23, 1976, the Volkswagen that had been observed since 3 p.m., drove to a parking lot adjacent to 5142 Denny Avenue and stopped. At this time defendant was the driver of the Volkswagen. Several police officers approached the vehicle, indicated to David and defendant that they were police officers, although they were dressed in casual attire and not in uniform. In answer to a question as to where he lived, David indicated the address, 5142 Denny, Apartment 4. The officers advised David that they were going to make a search of the apartment pursuant to the terms of David's parole. David stated to the officers that he believed only his parole agent was authorized to make a search under the consent provisions of his parole. An officer removed the keys from the ignition of the Volkswagen and asked David which of several keys opened the apartment door. David pointed to a particular key and the officers, together with David and defendant, proceeded to Apartment 4. There, David used the key he had identified to open the door to the apartment and approximately seven or eight officers, all in civilian and casual attire, entered the apartment along with David and defendant.

While the group was proceeding from the Volkswagen vehicle to Apartment 4, defendant stated to one of the officers that she didn't know why they were there or why they were concerned with David because David didn't really live at the apartment and that it was her apartment.

After arriving in the apartment, one of the officers directed the defendant into the bedroom, which was the only bedroom to the apartment. One of the officers asked defendant if she would consent to a search of the apartment, indicating that the officers were there to conduct a narcotic investigation. Defendant's response to the request for consent to conduct a search was in the following words: 'Go ahead and search. There's nothing here.'

A searching officer removed from a bureau drawer in the bedroom a man's wallet which contained David's social security card. In another drawer the officer removed two balloons which turned out to contain heroin. The two balloons were in a drawer in which the only other items were women's underclothing. Other drawers contained men's underclothes. A bedroom closet contained both male and female clothing. In other areas of the apartment were found narcotic paraphernalia, such as funnels and syringes. A bag of lactose used to cut heroin was removed from the trunk of the Volkswagen. After these articles were found in the apartment defendant and David were placed under arrest and transported to the Burbank Police Station.

At the Burbank Police Station a female officer was called to help escort defendant from the parking lot area to the booking area. As defendant and two officers walked toward the booking area, the officers noticed defendant reaching several times toward her back in the area of the waistband to the blue jeans she was wearing. After reaching the booking area the female officer reached into the back of defendant's blue jeans and removed a baggie. The baggie contained 26 balloons with powder which, upon subsequent examination, turned out be heroin.

Defendant's attack upon the validity of the search of the apartment on Denny Avenue is predicated on the contention that the apartment was defendant's apartment--not David's apartment--and that the police officers made entry into her apartment without her consent and without having a search warrant or any reasonable cause to believe that she had committed any violation of law. Defendant contends that the initial entry being illegal, her subsequent consent to the search of her apartment was not a free and voluntary consent.

Defendant thus argues that the contraband taken from the apartment and from defendant's person after her arrest are inadmissible pursuant to the 'fruit of the poisonous tree' doctrine set forth in Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. The People justify the search of the apartment and seizure of contraband found therein on the theory that the police officers were entitled to enter the apartment by virtue of David's prior consent based upon the conditions of his parole, and that the arrest of defendant and David was justified after a search of the premises had revealed the heroin found in a dresser drawer in the bedroom of the apartment.

Defendant argues...