People v. Legg

• Citation: 258 Cal.App.2d 52,65 Cal.Rptr. 541
• Decision Date: 18 January 1968
• Docket Number: Cr. 2918
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Justice LEGG, Jr., Defendant and Appellant.
• Court: California Court of Appeals

Page 541

65 Cal.Rptr. 541

258 Cal.App.2d 52

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Justice LEGG, Jr., Defendant and Appellant.

Cr. 2918.

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

Jan. 18, 1968.

Rehearing Denied Frb. 1, 1968.

Hearing Denied March 13, 1968.

Walker & Davis, James E. Walker, Wallace R. Davis and Richard S. Platt, Santa Ana, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., George J. Roth and Lola M. McAlpin, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

WHELAN, Associate Justice.

Defendant Legg (defendant) and a codefendant, Stowe, were convicted in a non-jury trial of possession of marijuana. Defendant appeals from an order granting him probation.

The sole attack on the conviction is a concentration of numerous shafts directed against the search that discovered the contraband received in evidence. We have concluded that the search and seizure were not illegal.

At about 2 o'clock in the morning of December 10, 1966, Holt, an officer of the Newport Beach police force, and a fellow officer, in a black and white police vehicle, were patrolling an area in the city where one week before there had been half a dozen thefts from and burglaries of parked automobiles, of which several had been from the trunks of such vehicles. The officers were acting under direction from their superior.

As the police drove through an intersection, Holt saw defendant standing in the roadway of 43rd Street alongside a car parked at the west curb. Forty-third Street runs in a generally north-south direction, and is intersected by Seashore Avenue, on which the police were traveling, and, one block north of Seashore, by Balboa Avenue.

The police car traversed the block enclosed by 43rd, 42nd, Seashore and Balboa, and then drove southerly on 43rd Street. Defendant was still in the roadway and was seen by Holt to look in the direction of the police car, then about 100 feet away. Defendant then started to walk northerly, on the double, jumped a fence two and one-half to three feet high, then ran into a house at 121 43rd Street. The police car came to a halt in the street almost directly in front of the house as defendant entered it. Holt, who had already seen that the trunk of the car alongside which defendant had been standing was open about four inches, alighted from the police car and went to the door through which defendant had entered the house, and was shortly joined by the other officer. Holt knocked on the door; almost immediately defendant opened a window near the door and asked what was wanted. Holt answered, 'Police officer. Open the door. I want to talk to you.' Defendant opened the door part way and stood at the opening. Holt pushed the door further open as defendant stepped back; Holt, who was familiar with the odor of burning marijuana, immediately smelled marijuana smoke, and formed the opinion that marijuana was being smoked in the house. He then pushed the door fully open; defendant said, 'I don't want you to come in here'; Holt, however, walked into the house. There, the odor of marijuana was much stronger; there seemed to be a cloud of smoke. Defendant was told by Holt that someone had been smoking marijuana in the house and that he intended to find the source of the smoke. Holt entered a bedroom, which was defendant's, where he saw a wooden pipe that contained a residue of marijuana, and found a green glass water pipe with marijuana residue in it, and a pipe made of paper which gave off an odor of marijuana. Elsewhere in the house were a marijuana cigarette, some loose marijuana and four partially burned marijuana cigarettes. Stowe was in another room of the house.

In conversation with defendant in the house, Holt asked what defendant was doing outside; and was told that defendant had not been outside; Holt then asked who had just come into the house, and was told no one had.

Holt's original purpose in wishing to talk to defendant was to ask him what he had been doing alongside the car with the trunk lid lifted up. Holt suspected that defendant probably had stolen something from the open trunk. However, if defendant had not opened the door of the house Holt said he would not have broken through the door. He did not examine the parked car before going to the door of the house; later he examined the car and discovered that the cover of the trunk could not be closed and was held down by wire.

Both defendant and Stowe testified. Although defendant testified he had been outside, he stated he had first been outside with several girls who had visited the house, and then gone into the house and had come out again with Stowe with whom he had re-entered the house some 15 minutes before Holt knocked. Defendant testified he had seen a police car moving along 43rd Street just before entering the house the second time. Neither defendant nor Stowe controverted Holt's testimony as to what happened after Holt knocked at the door. Specifically, defendant made no claim that he felt under compulsion to...