People v. Little

• Decision Date: 19 July 1973
• Docket Number: Cr. 22984
• Citation: 109 Cal.Rptr. 196,33 Cal.App.3d 552
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Lawrence Hilburn LITTLE, Defendant and Respondent.

Page 196

109 Cal.Rptr. 196

33 Cal.App.3d 552

The PEOPLE of the State of California, Plaintiff and Appellant, v. Lawrence Hilburn LITTLE, Defendant and Respondent.

Cr. 22984.

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

July 19, 1973.

Rehearing Denied Aug. 1, 1973.

Hearing Denied Sept. 6, 1973.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Acting Head, Appellate Div., Arnold T. Guminski, Deputy Dist. Attys., for plaintiff and appellant.

Zetterberg & Zetterberg, Mark S. Kaiserman, Claremont, for defendant and respondent.

COMPTON, Associate Justice.

Defendant was charged in an information with violation of Health and Safety Code section 11530.5 (possession for sale of marijuana). The People appeal from an order of the Superior Court of Los Angeles County dismissing the information pursuant to Penal Code section 1385. Said dismissal followed the court's granting of a motion to suppress the People's evidence pursuant to Penal Code section 1538.5.

At the hearing on the motion to suppress, the court by stipulation, read and considered the transcript of the testimony taken at the preliminary hearing and also received additional evidence. In the final analysis, however, there is no dispute as to the facts or the credibility of the witnesses. The issue presented is purely one of law.

In the Mount Baldy area of Los Angeles County is a location known as 'Mattress Flats.' 'Mattress Flats' is on a knoll adjacent to Mount Baldy Road, a public highway, and lies in close proximity to public rest areas which are situated along the road. No signs or fences set 'Mattress Flats' apart from the surrounding area, which is remote, desolate and uninhabited. 'Mattress Flats' contains a large amount of junk and tin cans indicating frequent use by a substantial number of persons.

On June 10, 1972, two deputy sheriffs in a patrol car were proceeding along Mount Baldy Road at about 2:00 a. m. when they observed a flash or metal as their headlights shined onto 'Mattress Flats.'

Deputy Ruis testified at the suppression hearing that he and other members of the Los Angeles County Sheriff's Department assigned to the San Dimas Substation regularly patrol 'Mattress Flats.' He personally made it a practice to patrol all of the desolate areas in the district to warn persons of the hazards of being alone in such places.

Deputy Ruis had received information from other deputies regarding narcotic violations, alcoholic beverage violations and unlawful sexual activity occurring at 'Mattress Flats.' He had first-hand knowledge of a vehicle having in the past been abandoned there with a suicide note on the front seat. He had also on occasion found minors in possession of alcohol at that location and had asked them to leave. He believed that 'Mattress Flats' was public property.

Thus when he observed the flash of metal in his headlights, Deputy Ruis proceeded to 'Mattress Flats' to check for possible unlawful activity and there discovered defendant asleep on the ground near his automobile. Lying in plain sight at defendant's side was a pipe and a plastic bag containing what Deputy Ruis recognized as marijuana.

The defendant was awakened, arrested and searched. More marijuana was found in his trousers and in the trunk of the automobile. There was no warrant for arrest or search.

At the hearing on the motion to suppress, it developed that 'Mattress Flats' is in fact private property, and that defendant had written permission from the owner to be on the property. The owner had previously given written permission to the Los Angeles County Fire Department to enter the property but apparently the sheriff's office had never requested such permission and none had been given. There is no evidence, however, that the owner had ever refused permission to the sheriff nor requested that the deputies not come on the property.

The evidence was in plain sight of the officer at the time it was seized. There was no search. Thus the conduct of the officers in getting to the place from which they made the observation becomes important.

In People v. Edwards, 71 Cal.2d 1096, at 1100, 80 Cal.Rptr. 633, at 635, 458 P.2d 713, at 715, the Supreme Court stated: '(A) number of cases involving claims of unconstitutional searches or seizures in open fields or grounds around a house have stated their conclusions in terms of whether the place was a 'constitutionally protected area.' That phrase, however, does not serve as a solution in all cases involving such claims, and we believe that an Appropriate test is whether the person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable governmental intrusion.' (Emphasis added.) (See also People v. Bradley, 1 Cal.3d 80, 84, 81 Cal.Rptr. 457, 460 P.2d 129; People v. Krivda, 5 Cal.3d 357, 364, 96 Cal.Rptr. 62, 486 P.2d 1262; People v. Sirhan, 7 Cal.3d 710, 721-742, 102 Cal.Rptr. 385, 497 P.2d 1121; Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576.)

The Edwards test was recently further refined in Lorenzana v. Superior Court, Cal., 108 Cal.Rptr. 585, 511 P.2d 33 (Filed June 20, 1973) where the Supreme Court stated that '. . . the cases recognize the distinction between the observations of a police officer who has positioned himself upon property which has been opened to public common use, and the observations of an officer who ventures onto property which has not been so committed. A sidewalk, pathway, common entrance or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there. The officer who walks upon such property so used by the public does not wear a blindfold; the property owner must reasonably expect him to observe all that is visible.'

The defendant urges that he had exhibited a reasonable expectation of privacy in that he had received permission from the owner of the land to be there, that he knew the land was privately owned and that he had made the...