People v. Lovelace

• Decision Date: 06 February 1981
• Docket Number: Cr. 4239
• Citation: 116 Cal.App.3d 541,172 Cal.Rptr. 65
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Patrick Eugene LOVELACE, Defendant and Appellant.

Page 65

172 Cal.Rptr. 65

116 Cal.App.3d 541

The PEOPLE, Plaintiff and Respondent, v. Patrick Eugene LOVELACE, Defendant and Appellant.

Cr. 4239.

Court of Appeal, Fifth District, California.

Feb. 6, 1981.

[116 Cal.App.3d 543] Brunn, Lacey & Thayer and Dale H. Thayer, Modesto, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Garrick W. Chock, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

ZENOVICH, Associate Justice.

The appeal before us is from a judgment rendered against appellant upon his plea of guilty to possession of amphetamines for sale (Health & Saf.Code, § 11378). He had first entered pleas of not guilty to each of three counts alleging (1) possession of phenobarbital for sale (Health & Saf.Code, § 11378), (2) possession of amphetamines for sale (Health & Saf.Code, § 11378) and (3) planting, cultivating, harvesting, drying and possession of marijuana (Health & Saf.Code, § 11358). He then moved under Penal Code section 1538.5 to suppress physical evidence as to each count and to traverse the search warrant. When the motion was denied, he withdrew his plea of not guilty and pleaded guilty to one of the counts; the other counts were dismissed.

In this appeal, he challenges the denial of his suppression motion. The pertinent evidence is contained in the affidavit in support of the search warrant, the transcript of the preliminary hearing, and the oral testimony adduced at the suppression hearing.

In his affidavit in support of the search warrant, Stanislaus County Deputy Sheriff Tom Ford stated that he was informed by a confidential, reliable informant that several marijuana plants could be seen growing in the backyard of a residence located at Maynell Street. The informant told Ford that the plants could be seen from an alleyway running between the residence and an establishment named Deluxe Cleaners. Three days before execution of the warrant affidavit, Ford went to the described residence and found the address to be 116 Maynell. The affidavit then described the following observations by Ford:

"From the public alleyway between Deluxe Cleaners and the residence at 116 Maynell I was able to observe the back yard of 116 Maynell through numerous gaps and knotholes in the fence surrounding the back yard. I noted at the southwest corner of a garage and next to the fence and alleyway, several marijuana plants numbering at least four, ranging from three to five feet tall. These plants appear to have been well cared for and appear to have been specifically planted in that location as there are no other marijuana plants within the back yard. I noted that the ground around the base of the plants was moist, with the plants appearing to have been watered. I noted that these marijuana plants had the characteristics of the marijuana plant in its growing state, being medium to dark green in color and have saw toothed edge leaves. Being an expert on the identification of growing marijuana plants, it is my opinion that the plants observed by your affiant were, in fact, marijuana plants in their growing state.

"As an experienced narcotics officer I can also say that in the past on numerous occasions regarding the cultivation of marijuana that I have found amounts of marijuana plants inside of a residence and outbuildings on the property being cured and manicured for the use and sale of these plants. I can further say that marijuana grown by private individuals is picked and commonly taken into residences and outbuildings to be dried and manicured. I have further found that individuals involved in the cultivation of marijuana plants keep inside of their residence and outbuildings marijuana seeds. As an expert on the identification of marijuana I can also state that marijuana is usually hung and dried out of view of the public. Marijuana is also frequently manicured and packaged for use and for sale and this requires all types of implements and is also generally done out of the view of the public. For those reasons I believe that there can now be found inside of the residence at 116 Maynell, Modesto, California, marijuana and the implements used to cultivate and package marijuana for use or sale."

Upon further investigation, Ford found that the utilities of the residence were in the name of an individual named James Lovelace and that appellant Patrick Lovelace had been previously suspected of furnishing marijuana to a juvenile. Based upon this information, the magistrate issued a warrant for the search of the "buildings and grounds" at 116 Maynell.

On October 3, 1978, Modesto Police Officer Joe Massey and three other individuals executed the search warrant upon 116 Maynell. Before knocking on the door of the residence, Massey stood in the public alleyway about five feet from the fence and observed what appeared to be "at least a half a dozen (marijuana) plants" in the backyard. Massey said he made this observation by looking through cracks and gaps in the fence. ¹ Massey testified that a solid wood fence kept the backyard area secluded from the alleyway. In response to an inquiry about whether a reasonable person would be able to see through the fence without endeavoring to do so, the officer responded, "that would depend on where you were standing." ² After knocking on the door of the residence, appellant answered and the officer explained the purpose for his presence. Appellant, his mother and Willis McCoy (a friend of appellant's mother) were in the residence when officers engaged in execution of the warrant. ³ During a search, Massey found phenobarbital, amphetamines, marijuana seeds and leaves, a book on marijuana cultivation, drug paraphernalia, a lid of marijuana in a cigar box, and a three-foot-long dried limb of marijuana hanging from the rafters in the garage. Contrary to his initial observation about seeing "half a dozen plants there," the officer discovered that there was only one marijuana plant in the backyard. ⁴ Massey described the plant as follows: "(I)t had large branches coming off probably at least four larger branches coming up off of it spreading out to probably a width of at least four foot. So it would be a plant approximately five-foot tall with an expansion of at least four foot. It was very huge like maybe a bush." He also noted that "it had grown so tall it had fell (sic ) over, and the top of it was laying towards the ground; and it covered at least a four-foot circle underneath it." Since the plant weighed five pounds, it left a sizable hole after it was removed by executing officers. Massey also testified that no other marijuana stumps were in the area. There was also no freshly turned soil in the ground adjacent to the sole marijuana plant.

Doris Lovelace, appellant's mother, testified at the preliminary examination. She initially indicated that the fence had a height of about six feet. Mrs. Lovelace indicated that she personally could not see over the top of the fence when she was standing in the alleyway. ⁵ It was her opinion that the fence was built for purposes of privacy. Mrs. Lovelace testified that appellant moved into the house in May 1977, and that her husband rebuilt the fence around November of the same year. In describing why the fence was repaired by her husband, Mrs. Lovelace stated, "It was in bad shape, and the posts were beginning to break off and fall down; and it was beginning to fall down, and we wanted a solid fence there for the privacy from the people around us because like I said we're so close to businesses there that there's so many people there, so much traffic in our area."

The following additional facts were adduced at the suppression hearing. Deputy Ford stated that he stood within one foot of the fence (with his face within an inch or two of it) when he saw the marijuana. Although he could neither see over nor under the six-foot-high fence, Ford looked through a one-inch-wide knothole that was seven feet from the marijuana; furthermore, he also viewed the backyard through another knothole and one-quarter-inch gaps between the fence boards. In explaining why his affidavit contained the statement about seeing several marijuana plants, Ford stated, "I saw what appeared to me to be several marijuana plants, numbering at least four." (Emphasis added.) The court sustained objections to defense counsel's inquiry into the officer's knowledge of the Pellegrin ⁶ decision. Ford also testified that he viewed the marijuana through gaps in a board which were located near the bottom of the fence. Moreover, by looking through the lower gaps in the fence, Ford noted that the ground around the base of the marijuana was moist.

Massey, McCoy and Doris Lovelace also provided testimony at the suppression hearing. Massey reiterated his statement that there appeared to be several plants when he first viewed the backyard area from the alleyway. ⁷ Upon closer examination, however, Massey conceded that there was only one marijuana plant in the backyard. McCoy testified that he repaired the backyard fence sometime in the summer of 1977. The reason for doing so was because "The fence was in a somewhat rundown condition at that time. And due to the proximity, the location so close to a commercial alley and McHenry Avenue, and the traffic on Saturday nights, we felt weed (sic ) like to have a little more privacy in our backyard." McCoy also indicated that he repaired the fence so that it was relatively "tight." He stated that the purpose of a solid fence was to shield the backyard from public view. McCoy described the particular area where the plant was located as being a "weed patch"; this area was located outside the concrete curbing that had been used to delineate a flower bed in the backyard. Mrs. Lovelace testified that she requested McCoy to make repairs to the fence, that she told him to construct it "as tight or as sound...