People v. Locke

• Decision Date: 01 July 1969
• Docket Number: Cr. 3545
• Citation: 79 Cal.Rptr. 367,274 Cal.App.2d 541
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Price Edwin LOCKE, Defendant and Appellant.

Page 367

79 Cal.Rptr. 367

274 Cal.App.2d 541

The PEOPLE of the State of California, Plaintiff and Respondent, v. Price Edwin LOCKE, Defendant and Appellant.

Cr. 3545.

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

July 1, 1969.

Hearing Denied Sept. 17, 1969.

[274 Cal.App.2d 542] Sidney Lester and George H. Chula, Santa Ana, for defendant and appellant.

[274 Cal.App.2d 543] Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Michael L. Abrams, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

AULT, Associate Justice pro tem. ^*

Price Edwin Locke appeals a judgment (probation order) convicting him of possessing marijuana (Health & Saf.Code, § 11530), after his case was submitted to the court on the transcript of his preliminary examination.

The police arrested Locke in the same narcotics raid which resulted in the conviction of James Henry Clay (People v. Clay, Cal.App., 78 Cal.Rptr. 56). As we noted in Clay, the police raid was precipitated when a federal undercover narcotics agent, Lusardi, negotiated a purchase of five pounds of hashish from a man named Amaranthus in a South Laguna Beach house. Several people, including Locke were present in the house. Locke did not participate in the sale transaction.

When Lusardi saw the hashish in house, he alerted other officers and agents who converged on the house. As Lusardi, with two other agents, approached the rear of the house, he heard shuffling, people running and shouting, and a shot being fired. The agents forced their way into the house. Here, as in Clay, we reject the contention the agents should have knocked, announced themselves and stated their purpose in compliance with Penal Code, section 844. Noncompliance with that section is excused where the oficers may reasonably believe compliance would increase their peril (a shot was fired), an arrest would be frustrated, or evidence destroyed (the running and shouting reasonably indicated an attempted escape or narcotics being destroyed) (People v. Rosales, 68 Cal.2d 299, 305, 66 Cal.Rptr. 1, 437 P.2d 489).

In the living room of the house the officers arrested Locke. They saw several clear plastic bags of marijuana in the room approximately 5 to 7 feet from where Locke stood. The officers searched Locke finding a plastic bag containing a quarter to one-half ounce of very finely manicured or granulated marijuana in his front pants pocket.

The search of Locke was valid as incident to a lawful arrest where the officers found him in a house where the sale of a large quantity of hashish was negotiated and Locke was standing next to a sizeable quantity of marijuana in the living room. The officers had probable cause to believe Locke possessed the marijuana in the room.

Locke's claim the substance found on his person was not established to be marijuana must fail as a trained narcotics agent testified, without objection, he recognized it as marijuana. Moreover, before submitting this case on the preliminary transcript, defense counsel and the deputy district attorney stipulated:

(DEPUTY DISTRICT ATTORNEY)

'I believe at the preliminary hearing it was stipulated that the substances described therein were marijuana....