People v. Kampmann
| Decision Date | 01 February 1968 |
| Docket Number | Cr. 6371 |
| Citation | 65 Cal.Rptr. 798,258 Cal.App.2d 529 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Lars Gilbert KAMPMANN, Defendant and Appellant. |
John Kaplan, Stanford, Robertson & Hand, San Jose, for appellant.
Thomas C. Lynch, Atty. Gen., of California, Robert R. Granucci, John T. Murphy, Deputy Attys. Gen., San Francisco, for respondent.
Defendant appeals from an order admitting him to probation upon his conviction of violation of Health and Safety Code, section 11530 (possession of marijuana). The judgment depends substantially upon evidence produced by an unlawful search; it must therefore be reversed.
Two sheriff's deputies in a patrol car were dispatched one evening to an address on Alpine Road in Menlo Park. When they arrived they were met by the person who had called the sheriff's office and were informed that there had been a loud commotion a short time before at the house next door. A girl had screamed, 'I'm being choked' and the informant related that he had seen two middle-aged persons at the house. Suddenly the screaming had stopped and a car which had previously been observed nearby had disappeared. Believing from this account that a kidnapping had occurred, the deputies went next door to investigate.
Finding the screen door ajar, the officers knocked and then yelled into the house. There was no answer. Through the door they could see phonograph records on the floor, bottles knocked over and papers scattered about. The officers concluded that some violent crime had been committed. Entering the house they searched all the rooms and closets, expecting that they might find a body. They found nothing. Then, while one of the officers used the telephone located on the kitchen table to call the desk sergeant, his partner noticed an open coffee can on the table near the telephone. It contained hypodermic needles, syringes and marijuana. This discovery was reported immediately to headquarters and more officers were dispatched to the house to make a further investigation.
Meanwhile it was learned that appellant occupied the premises under a lease. He was then busy in a garage on Skyline Boulevard, several miles away, practicing with an electric band. Two deputies went immediately to get appellant. Appellant refused to return with the officers, but the 'victim' had already communicated with appellant, and he explained that the supposed kidnapping was a misunderstanding. Apparently the girl who screamed in the night was one of three girls who were living at appellant's house; the 'middle-aged persons' were her parents; and the clamorous struggle heard by the neighbors represented the girl's unwillingness to be rescued by them. The officers arrested appellant for possession of marijuana and brought him back to the house at Menlo Park.
The parents of the supposed kidnap victim had already arrived at the house when the two officers brought appellant there. There was by then direct confirmation that the 'kidnapping' was a family affair. The same two officers who brought appellant home soon took him away to jail. Thereafter the other officers made a second, much more thorough search of the house. They had no warrant. This second search produced, also on the kitchen table, an opaque marmalade jar containing marijuana, an empty bottle labeled 'Methedrine,' and an ashtray containing a marijuana 'roach.' Residue found in a pipe turned out to be marijuana. A coffee can almost filled with marijuana was found underneath a desk. Near that can was found a passport bearing appellant's name and photo. Another roach was found in an ashtray in one of the bedrooms. The officers found a vial of Methedrine hidden in an overnight bag in one of the bedrooms. Brown cigarette papers were found in several areas of the house.
One of the girls who lived in the house had a narcotics record. There was also evidence that appellant had left the house about five hours before the first discoveries were made.
Timely objection was made to the introduction of any of the contraband, upon the ground that it was the product of an unreasonable search and seizure. Nevertheless the evidence was admitted and appellant was thereupon found guilty.
On appeal appellant concedes that the two officers acted properly in entering his house to deal with what they thought was an emergency arising out of a kidnapping or violent crime. He also concedes that the first can of marijuana was discovered without any search having been made. But it is contended that the seizure of that marijuana was unlawful and that the further contraband seized after the arrival of the narcotics officers was the product of an unreasonable search.
Appellant's first contention is that although the entry originally made by the officers was lawful, as soon as the first can of marijuana was discovered, they should have posted a guard upon it and procured a search warrant before making a seizure. (Cf. Trupiano v. United States (1948) 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, overruled in United States v. Rabinowitz (1950) 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.) It is true that such a procedure was followed in People v. Roberts (1956) 47 Cal.2d 374, 303 P.2d 721, where police officers entered premises without a warrant when, approaching to investigate a burglary, they heard sounds like moans of distress inside the apartment. While searching for someone in distress they noticed a stolen radio in the kitchen. Rather than seizing the radio immediately they procured a search warrant. The conviction which was founded upon the seized radio was affirmed. However, the Roberts case is not a holding that the officers were Required to obtain a warrant in that situation. Appellant relies upon United States v. Scott (D.C.1957) 149 F.Supp. 837, in which officers lawfully entered a robbery suspect's apartment, saw in plain sight items taken in the robbery, and seized those items without a search warrant. The court held that once the officers found the stolen property there was no urgency requiring an immediate seizure. Thus, since they failed to go and get a search warrant, the seizure was held to be illegal and the evidence produced thereby was inadmissible. A contrary result has been reached by the United States Supreme Court in Warden Md. Penitentiary v. Hayden (1967) 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, in which police officers pursued a robber into a house and there made an extensive search which produced several items of evidence. The court held that the entry in hot pursuit was lawful,...
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