People v. Maltz

• Decision Date: 14 January 1971
• Docket Number: Cr. 4146
• Citation: 92 Cal.Rptr. 216,14 Cal.App.3d 381
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Dennis Harvey MALTZ, Defendant and Respondent.

Page 216

92 Cal.Rptr. 216

14 Cal.App.3d 381

The PEOPLE of the State of California, Plaintiff and Appellant, v. Dennis Harvey MALTZ, Defendant and Respondent.

Cr. 4146.

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

Jan. 14, 1971.

Hearing Denied March 16, 1970.

[14 Cal.App.3d 385] Cecil Hicks, Dist. Atty., Michael R. Capizzi, and Oretta D. Sears, Deputy Dist. Attys., for plaintiff and appellant.

Frank L. Williams, Jr., Public Defender, and James R. Goff, Deputy Public Defender, for defendant and respondent.

OPINION

KAUFMAN, Associate Justice.

By a complaint filed in the Municipal Court of the South Orange County Judicial District, defendant was accused of possession of restricted dangerous drugs--LSD (count I, Health & Saf.Code, § 11910) and furnishing and sale of restricted dangerous drugs--LSD (count II, Health & Saf.Code, § 11912). After a preliminary hearing, defendant was held to answer, and an information, consisting of two counts, was filed in the Orange County Superior Court charging defendant with these offenses. Defendant's motion to set aside the information made pursuant to Penal Code, section 995 was granted by the superior court. The People appeal from the order (Pen.Code, § 1238(1).)

Aside from the observations of two police officers, the incriminating evidence consisted of pills containing LSD seized by the officers in a search of the person of one William Monroe and similar pills seized by the officers from a certain residential garage. At the preliminary hearing, the municipal court found the search of and seizure of contraband from William Monroe and the seizure of contraband from the residential garage lawful. The superior court found the search and both seizures unlawful.

The Issues

For reversal, the district attorney contends:

(1) There was probable cause for the arrest and search of the person of William Monroe;

(2) Assuming that the search of Monroe was unlawful, nevertheless the evidence seized from his person was admissible in a criminal prosecution against defendant, inasmuch as defendant has no standing to attack the illegal search of another;

(3) There was no search of the residential garage and seizure of contraband therefrom was lawful;

(4) Even if the seizure from the garage was unlawful as to the owner or occupant of the property, the evidence is admissible as against defendant inasmuch as he neither owned, occupied or controlled the garage, that is, that defendant has no standing as to assert a seizure of contraband that may have been unlawful as to some third person.

We have concluded that the first and third contentions are meritorious. It will be unnecessary, therefore, for us to consider the interesting problems presented by the second and fourth contentions.

The Facts

The events that form the basis of the criminal charges against the defendant transpired during the evening and night of July 26, 1969. On that evening, Sergeant Babcock and Detective Purcell of the Laguna Beach Police Department were participating in a surveillance of the parking lot area of Albertson's Market in Laguna Beach. The surveillance was conducted from a vantage point across the street from the parking lot. Officer Purcell was using binoculars. Sergeant Babcock was not.

The officers were working together and observed substantially the same events. It would serve no useful purpose, therefore, to segregate their testimony, and, except as specifically indicated by reference to the officers' names, no such segregation is hereinafter made.

Both officers were thoroughly experienced in police work relating to narcotics and dangerous drugs. Both had also had a great deal of experience with drug traffic in the immediate area of the incidents here involved. Between them they had made approximately 100 arrests for drug and narcotic offenses in the immediate area. Many of the cases were still pending, but about 15 had resulted in convictions, and, in many of those still pending, the defendants had been held to answer after preliminary hearing. In almost all of these cases, the officers had observed conduct very similar to the conduct observed in the case at bench. The officers had also observed that the greatest incidence of narcotic traffic in the area occurred between the hours of 7 and 10 p.m.

The officers first saw defendant in the area of the parking lot at approximately 7:50 p.m. Defendant walked toward a man in a green vest and levi pants and stopped in front of him. The man handed currency to defendant as defendant extended his right hand toward the man. Each then walked off in a different direction.

Approximately 40 minutes later defendant was again seen walking in the same general area. This time he approached a man later identified as William Monroe. As defendant went up to Monroe, Monroe extended his left hand toward defendant with the palm turned up. Defendant extended his left hand toward Monroe with the palm turned down. As Monroe withdrew his left hand, he placed it in his left-hand pants pocket. Both Monroe and defendant walked away together. Monroe appeared extremely nervous.

In defendant's comings and goings he was twice observed in the vicinity of, and once on the yard of, a house at 684 1/2 Glenneyre Street on the corner of Glenneyre and Cleo Streets, a short distance from the parking lot. Sergeant Babcock testified that his experience with narcotic and drug traffic in the area demonstrated that the seller will frequently have a 'stash' (supply of drugs) somewhere near the area and that he will return to the point of the 'stash' from time to time as the need arises to obtain an additional supply for sale.

Based upon the foregoing observations of defendant's conduct and their knowledge and experience, ¹ the officers decided to stop defendant and Monroe and confronted them in the driveway of the market. The officers stated that they were conducting a narcotics investigation involving the two men and advised them of the officers' observations of their conduct. Both men were then advised of their Miranda rights. The officers then asked each man for permission to search his person for narcotics. Defendant gave permission. He was searched and no narcotics or drugs were found on him. Monroe, on the other hand, refused to give permission. When asked whether he had any 'dope' on him, Monroe stated, 'No.' Officer Purcell then told Monroe that he intended to search him notwithstanding his objection, and, upon so doing, found four white-colored, odorless, double-domed pills in his left-hand pants pocket. These pills contained a usable quantity of LSD. Both men were then arrested: Monroe for possession of dangerous drugs and Maltz for selling or furnishing dangerous drugs.

After the two men had been taken to the police station for booking, Sergeant Babcock, based upon his knowledge that drug dealers frequently have a 'stash' and upon his observation of defendant in the vicinity of and in the yard of the house on the corner of Glenneyre and Cleo Streets, returned to that location to make an investigation of the area from which he had seen defendant come.

The exact location of the structures, doors, areas and objects next referred to and the location of Detective Babcock in relation thereto cannot be accurately ascertained from the record. Most of the testimony was given by Officer Babcock with reference to a diagram of the location drawn by him at the preliminary hearing. So far as the record discloses, the diagram itself was not introduced into evidence and was not before the superior court. It should also be noted that, at the request of counsel for defendant, the magistrate who conducted the preliminary hearing viewed the premises. The record before us, and presumably that before the superior court, does not disclose what facts were observed during this view of the premises.

From the Reporter's Transcript of the preliminary hearing, the following facts appear. The garage was situated about one and one-half 'car widths' from what would be the curb of Cleo Street if Cleo Street had a curb. There is a driveway to the garage and a vehicle door in the garage. Somewhere in the vicinity of the driveway, apparently on the presumably private property itself, there were a number of garbage cans and trash and papers on the ground. Sergeant Babcock was on his hands and knees around the garbage cans picking up papers and looking under them. He noticed the bottom board on the outer surface of the garage failed to meet the ground by about six inches. He shone his flashlight toward the garage and, in this space at the bottom of the garage to the left of the vehicle entrance, something bright in color caught his eye. From a distance of about three feet he observed a brown and yellow paper bag similar to that in which 'Fritos' or corn chips are packaged, and on closer examination he could see that there was a hole in the bag and through the hole he could see a number of white, double-domed tablets identical in appearance to those found on Monroe. The bag of pills was apparently located inside the garage structure approximately 10 to 12 inches from the outer wall. Without otherwise entering the garage, Sergeant Babcock inserted his hand into the open space and seized the bag of pills. The pills were subsequently analyzed and found to contain a usable quantity of LSD.

The judge at the preliminary hearing was concerned about the ownership and control of the garage and asked that evidence be adduced with respect to these matters. Defendant's attorney declined to enter into a stipulation concerning them. The only evidence that the prosecution was able to adduce at the preliminary hearing was that at the time of their booking, defendant gave his address as Caldwell, New Jersey and gave no local address and that Monroe gave the address 519 Via Flores, San Clemente. Officer Purcell also testified that he was on the phone when Sergeant Babcock had a telephone conversation with the...