People v. Jackson

• Citation: 198 Cal.App.2d 698,18 Cal.Rptr. 214
• Decision Date: 29 December 1961
• Docket Number: Cr. 7209
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Richard JACKSON, Defendant and Appellant.

Page 214

18 Cal.Rptr. 214

198 Cal.App.2d 698

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Richard JACKSON, Defendant and Appellant.

Cr. 7209.

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

Dec. 29, 1961.

Warren L. Ettinger, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant was charged in separate information filed on October 22, 1959, with a sale of marijuana on February 18, 1959 (Health & Safety Code, § 11500), and possession of marijuana on September 18, 1959 (Id., § 11530). In connection with each it was alleged that defendant had been previously convicted for violation of § 11714, Health & Safety Code, selling to or through a minor, etc. The cases were consolidated for trial and before selection of a jury defendant admitted the prior conviction. Defendant was found guilty on both charges and appeals from the judgment and from an order denying his motion for new trial.

The only errors asserted upon appeal relate to the charge of possession. Appellant claims there was an illegal search and seizure and insufficient evidence to prove possession.

On February 18, 1959, Deputy Sheriff Donald R. Tizenor, working undercover, had gone to appellant's home at 2702 Lantana, Compton, Los Angeles County, with an informant and had consummated the purchase of marijuana from appellant, the subject of the first charge. No arrest was made at that time. Thereafter Deputy Tizenor made several attempts over the telephone to arrange for additional purchases of narcotics from appellant but no further sale was completed.

Prior to September 18, 1959, Deputy Velasquez had been informed by sergeant Scofield of the Compton Police Department that appellant was placing his narcotics back of the chickencoop among the trash and that there was a lot of traffic in and out of that location. On September 18 Deputies Tizenor and Velasquez, accompanied by five other officers, went to 2702 Lantana Street, arriving between 3:00 and 4:00 p. m. They had a warrant for the arrest of appellant based upon the aforesaid sale of February 18. There was no search warrant. Deputies Tizenor, Berman, Renteria, and Sergeant Scofield of the Compton Police Department entered the house through the front door. Deputy Velasquez, with Deputy Nesmith and Sergeant Greenlee, arrived upon the premises from the alley to the rear and saw appellant in the back yard talking to a male Caucasian. Velasquez told appellant that he had a warrant for his arrest, appellant was handcuffed and asked to accompany the officer inside the house. Velasquez and three other officers then took appellant outside into the backyard and began a search on both sides of the chickencoop.

In a trash pile on the westerly or far side of the chickencoop there were numerous bags of the grocery store type among beer cans and other types of garbage. It appeared to Velasquez to be a 'joint trash pile,' he could not recall seeing any other trash pile near the chickencoop. He looked into several of the bags and then picked up the largest of these paper bags, looked into it and said 'This is what [we] are looking for' or words to that effect. The contents proved to be a quantity of marijuana and marijuana cigarettes. It was found about a foot from the chickencoop, but Velasquez said he had no way of knowing whether or not this was on the neighbor's property. Later, Velasquez checked appellant's car parked in the driveway and retrieved from the floorboards, on the driver's side, what appeared to be three marijuana seeds and a partially smoked marijuana cigarette. These substances were exposed to plain view as he looked into the car. The house as well as the garage, where appellant conducted a television and radio repair shop, were also searched.

Approximately simultaneously with the entry of the deputies into the back yard, Deputy Tizenor entered the house through the front door. He testified that as he walked in he saw a bag lying open on top of a radio to the left of the door. The bag 'wasn't closed, it was just kind of leaning there' and in it he observed some marijuana seeds and debris.

Some of the persons who were in the living room were taken into custody because marijuana was found on their persons. During the time the officers were at the house, which according to appellant was until about 7:00 p. m., a number of other people arrived who were searched and placed under arrest outside the house; one person had eleven marijuana cigarettes on him.

Appellant has at all times denied knowledge of any of the narcotics found and a search of his person revealed nothing of a criminal nature. He testified that the paper bag found near the chicken coop was taken from a trash pile which was on his neighbor's land to the west of a fence which runs north and south along-side the chicken coop and forms the boundary between the two lots; that this trash pile was used by his neighbor and not by appellant; that he has his own trash pile at the end of the chicken coop. Beyond the southerly portion of his property, appellant stated that it was 'just all open field' and 'country area.'

Appellant does not question the validity of the arrest for the sale pursuant to the warrant therefor. He contends that the search which was made was not incident to that arrest. The argument is twofold: (1) That the arrest which took place in the back yard did not justify entry into and search of the house; and (2) that 'since the act upon which the warrant was based occurred seven months prior to the date of arrest, and since no other buys had been made by Deputy Tizenor during this period, the entry into the house and search thereof was not incident to the arrest.' Proper objections were made by defense counsel throughout the trial; all motions to strike and motions to suppress were denied, and objections to the receipt in evidence of the narcotics were overruled.

In support of his first contention,--that the arrest in the back yard did not justify a search of the house, appellant relies upon Hernandez v. Superior Court, 143 Cal.App.2d 20, 299 P.2d 678; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, and People v. Gorg, 45 Cal.2d 776, 291 P.2d 469. If the searches were otherwise connected with the arrest under warrant, the fact that the arrest was made in the back yard would not prohibit a search of appellant's house located upon the premises and under his control. The search was incidental in point of time and place, and was a 'continuous transaction.' (See, People v. Aleria, 193 A.C.A. 373, 377, 380-381, 14 Cal.Rptr. 162, in which the above cited cases are discussed.)

However, the searches were not otherwise connected with the specific offense for which the arrest was made. The sale was completed on February 18, 1959, and the evidence of that crime was already in the possession of the police. Any narcotics discovered seven months later would not be instrumentalities or evidence of the particular crime for which the arrest was made. The motivation could not have been the hope of obtaining evidence of that offense and, in the absence of probable cause for arrest upon an additional charge, the searches were unauthorized. Rather, they were general and exploratory and conducted for the sole purpose of discovering incriminating evidence,--the type of search that is condemned in People v. Mills, 148 Cal.App.2d 392, 399-402, 306 P.2d 1005, and in People v. Schaumloffel, 53 Cal.2d 96, 100-101, 346 P.2d 393.

No real attempt was made by the prosecution to establish probable cause for an arrest without a warrant. The question of probable cause as such was not mentioned by either party during the trial, and no argument on the subject has been presented upon this appeal.

We deem it unnecessary, however, to make a determination upon the question of probable cause because the narcotics received in evidence were not the result of an illegal search. The mere observation of that which is in open view does not constitute a search. (People v. Sterling, 154 Cal.App.2d 401, 405, 316 P.2d 405; People v. Spicer, 163 Cal.App.2d 678, 683, 329 P.2d 917.) It is not, nor can it be, claimed that the entry into the house by Deputy Tizenor was unlawful. He had arrived upon the premises with the other deputies for the purpose of making an arrest pursuant to the warrant. And, although his entry for this purpose did not justify a general search in the circumstances presented here, the officer, once in the room, did not have to blind himself to what was in plain sight simply because it was disconnected with the purpose for which he entered. (People v. Roberts, 47 Cal.2d 374, 379, 303 P.2d 721; People v. Griffin, 162 Cal.App.2d 712, 715, 328 P.2d 502; People v. Littlejohn, 148 Cal.App.2d 786, 791-792, 307 P.2d 425.) Upon entering the room, Deputy Tizenor observed a bag sitting on top of the radio, the bag was open and he saw a small quantity of seeds and small leaves. There was no 'search' so far as these narcotics were concerned. The same is true of the substances found on the floor boards of the car, for observing the items through the windows of a parked car does not constitute a search. (People v. Wright, 153 Cal.App.2d 35, 38, 313 P.2d 868; People v. Hyde, 51 Cal.2d 152, 157, 331 P.2d 42.)

Further, '[t]he constitutional guaranties protect the individual only from searches and seizures that are 'unreasonable', which may be taken generally to mean 'unlawful,' and the law authorizes many types of reasonable inspections, examinations, investigations, searches and seizures without warrant, either from practical considerations of convenience and common sense or by statutes, rules, or regulations adopted in the exercise of the state's police power.' (44 Cal.Jur.2d, § 22, pp. 303-304.) It was stated by Mr. Justice Holmes in Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 that ...