People v. King

• Court: California Court of Appeals
• Writing for the Court: FORD; SHINN, P. J., and McMURRAY
• Citation: People v. King, 234 Cal.App.2d 423, 44 Cal.Rptr. 500 (Cal. App. 1965)
• Decision Date: 17 May 1965
• Docket Number: Cr. 9911
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thomas Wesley KING and Richard Elzie Davis, Defendants and Appellants.

Page 500

44 Cal.Rptr. 500

234 Cal.App.2d 423

The PEOPLE, Plaintiff and Respondent, v. Thomas Wesley KING and Richard Elzie Davis, Defendants and Appellants.

Cr. 9911.

District Court of Appeal, Second District, Division 3, California.

May 17, 1965.

Hearing Denied July 14, 1965.

Ramsey, Emlein & Cullum and J. Raymond Cullum, Long Beach, for appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for respondent.

FORD, Justice.

In a nonjury trial the defendants King and Davis were found guilty of possession of marijuana in violation of section 11530 of the Health and Safety Code. They were sentenced to be punished by imprisonment in the state prison for the term prescribed by law. Each defendant has appealed from the judgment pronounced against him.

Two questions must be resolved. The first is whether the police officers obtained the marijuana by means of an illegal search and seizure. The second question relates to the impact of the reasoning of People v. Dorado, 62 Cal.2d ----, ^* 42 Cal.Rptr. 169, 398 P.2d 361, upon the evidence received as to statements made by the defendants after their arrest. At the trial, pursuant to stipulation, the case was submitted upon the testimony given at the preliminary examination the only witnesses being Police Officers Rickard and Hitchings of the City of Long Beach.

At approximately 10 p. m. on October 2, 1963, Sergeant Hitchings and Officer Miller went to the vicinity of the defendant King's residence. The front of the house was '[p]robably 50 to 65 feet' from the sidewalk. (At the trial it was stipulated that the residence was surrounded by a picket fence about four and a half feet high. There were two gates.) ¹ The officers had no search warrant and no warrant for the arrest of either defendant.

Sergeant Hitchings testified: 'We had recent numerous complaints from residents in the area that Mr. King was keeping late hours and had an odd assortment of company. We had made several periodic checks during the week on the King residence and on going to the location on the night of arrest I observed people who were known and convicted narcotic offenders.'

The officers parked the police car and walked toward two persons standing near vehicles in the parking lot adjacent to the premises of the defendant King. The horn of one vehicle was sounded and Mr. Rogers, 'a known and convicted narcotic offender,' emerged from Mr. King's house. After looking in the direction of the officers, Mr. Rogers ran through the adjacent alley. Sergeant Hitchings and Officer Miller pursued and stopped him. There was 'a definite odor of marijuana smoke about the person of Mr. Rogers,' but no narcotics were found to be in his possession.

After the search of Mr. Rogers, Sergeant Hitchings went upon the front porch of the defendant King's house and, at approximately 12:24 a. m., looked through a window adjacent to the front door. The blind was drawn but there was an opening of approximately an inch and a half to two inches in width through which the officer peered into the living room. Part of his testimony was: 'Q. Did you stand erect on the porch and look in the room or was it necessary to stoop? A. I had to stoop somewhat. Q. At what distance from the floor would you estimate your eyes were as you looked through at Mr. Davis? A. Probably would have been about a foot or whatever the bottom level of the window sill is. It probably was three--to four feet above the floor level.' The officer also testified as follows: 'Q. Officer Hitchings, would it be possible for you to have seen Mr. Davis and observed the activity you have described from any position other than what you have described? In other words, could you have seen what you have described from any position other than you have described? A. I doubt it very much.'

Upon looking into the interior of the house, Sergeant Hitchings observed the defendant Davis sitting on the sofa in the living room, a white cardboard box being on his lap, and rolling green leafy material into cigarette form. In the opinion of the officer, based on his prior experience, the green leafy material was marijuana. Sergeant Hitchings told Officer Miller of his observation. Officer Miller looked through the window. Sergeant Hitchings then entered the house through the rear door after forcing open the screen door. ² Officer Miller 'broke in' the front door. The defendant Davis jumped up from the sofa and ran toward the 'bathroom area' with the cardboard box in his hands. As Sergeant Hitchings entered the living room the defendant King 'ran for the area of the bathroom.'

The contents of the box fell onto the bathroom floor. Sergeant Hitchings asked the defendant Davis what the material was, but he received no response. In reply to a similar inquiry the defendant King said, 'I've got a pretty good idea.' Both men were handcuffed and taken back to the living room.

While still at his residence the defendant King was asked to explain the presence of the marijuana. He said that he was not certain who had brought the marijuana to his house but that he had allowed the defendant Davis to come there and roll it into cigarette form. He further said that he, Davis and Rogers had smoked marijuana in Rogers' apartment a week prior to the date of the arrest. Later at the police station, the defendant King stated that he knew that Rogers and Rogers' partner were currently dealing in large quantities of marijuana.

Officer Rickard testified that at the police station shortly after the arrest the defendant Davis made statements freely and voluntarily. He said that he had smoked marijuana from time to time over the previous eight years and was of the opinion that such conduct involved no wrong. His last use occurred approximately two weeks before the night of the arrest. He told the officer that he had been previously convicted of possession of marijuana. He stated, however, that he would not say anything about the marijuana found at the time of his recent arrest until he had talked with his attorney.

It was stipulated that it would be deemed that an expert forensic chemist had been called as a witness and had testified that he had examined the seized material and had formed the opinion that the examined material was marijuana.

The seized marijuana was received in evidence at the trial over the objection of the defendants based on the ground that there had been an illegal search and seizure.

The circumstances of which the officers were aware, including the presence of 'known and convicted narcotic offenders,' one of them being Mr. Rogers who was seen emerging from the house, warranted the inference that it was probable that there was a supply of narcotics in the defendant King's residence. (See People v. Torres, 56 Cal.2d 864, 867, 17 Cal.Rptr. 495, 366 P.2d 823.) Further investigation by the officers was justified. (Cf. People v. Holloway, 230 Cal.App.2d ---- ^*, 41 Cal.Rptr. 325; People v. Steffano, 177 Cal.App.2d 414, 2 Cal.Rptr. 176.)

The crucial question to be resolved on this appeal is whether the observation made by the officers through the window of the defendant King's residence constituted an unlawful search. The nature of a search was defined in Bielicki v. Superior Court, 57 Cal.2d 602, wherein the court stated at page 605, 21 Cal.Rptr. 552, at page 553, 371 P.2d 288, at page 289: "[T]he term implies some exploratory investigation or an invasion and quest, a looking for or seeking out. * * * A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally pur out of the way.' (People v. West (1956) 144 Cal.App.2d 214, 219 , 300 P.2d 729.) The constitutional guarantees, of course, prohibit not all searches but only those that are 'unreasonable.' (United States v. Rabinowitz (1950) 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653; People v. Maddox (1956) 46 Cal.2d 301, 306, 294 P.2d 6.)'

There are recent federal cases suggesting or holding that under the circumstances therein presented, observations made through a window of a residence constitute an illegal search. ³ But, as stated in Ker v. State of California, 374 U.S. 23, at page 31, 83 S.Ct. 1623, at page 1629, 10 L.Ed.2d 726: 'Mapp [Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081], however, established no assumption by this Court of supervisory authority over state courts, cf. Cleary v. Bolger, 371 U.S. 392, 401, 83 S.Ct. 385, 390, 9 L.Ed.2d 390 (1963), and, consequently, it implied not total obliteration of state laws relating to arrests and searches in favor of federal law.' And, at page 33, of 374 U.S., at page 1630 of 83 S.Ct. of the opinion in Ker, referring to Justice Butler's reasoning in Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374, it was said: 'He also recognized that '[t]here is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.'' (See Bielicki v. Superior Court, supra, 57 Cal.2d 602, 605, 21 Cal.Rptr. 552, 371 P.2d 288.)

In Bielicki the Supreme Court of California made reference to 'the settled rule that 'looking through a window does not constitute an unreasonable search' (People v. Martin (1955) 45 Cal.2d 755, 762, 290 P.2d 855, and cases there cited),' but did not undertake in that case 'to define the origin, location, or minimum diameter of the apertures through which police officers may look without making a search in violation of constitutional rights.' (57 Cal.2d at page 607, 21 Cal.Rptr. at page 555, 371 P.2d at page 291.) With respect to the aspect of trespass, Professor Collings has said: 'It seems to be assumed without discussion in several cases that minor trespass, not involving entry into a building, may be justified as reasonable investigation. This seems proper since the constitutional protection extends only to 'persons, houses, papers,...