People v. Marshall

• Citation: 69 Cal.2d 51,69 Cal.Rptr. 585
• Decision Date: 16 July 1968
• Docket Number: Cr. 11947
• Court: United States State Supreme Court (California)
• Parties: , 442 P.2d 665 The PEOPLE, Plaintiff and Respondent, v. Gary Lynn MARSHALL, Defendant and Appellant.

Page 585

69 Cal.Rptr. 585

69 Cal.2d 51, 442 P.2d 665

The PEOPLE, Plaintiff and Respondent, v. Gary Lynn MARSHALL, Defendant and Appellant.

Cr. 11947.

Supreme Court of California In Bank.

July 16, 1968.

As Modified on Denial of Rehearing Aug. 14, 1968.

Daniel L. Schlegel, Anaheim, under appointment by Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen., for plaintiff and respondent.

TRAYNOR, Chief Justice.

Defendant was charged by information with possession of marijuana for sale (Health & Saf. Code, § 11530.5). He appeals from a judgment of conviction of the lesser included offense of possession of marijuana (Health & Saf. Code, § 11530) entered after a trial by a judge without a jury.

At 7:45 on Sunday evening, October 30, 1966, four police officers in an unmarked police car arrived at a vantage point across the street from defendant's apartment in Huntington Beach. They sent an informant to purchase marijuana from one Mathews, ¹ who shared the apartment with defendant. At 8:15 the informant returned with marijuana in a cellophane-type bag and told the officers that defendant gave it to him free of charge. He also told them that the transaction took place in the bedroom and that the marijuana he was given was taken from a brown paper bag that contained more cellophane-type bags of marijuana.

The officers had neither an arrest warrant nor a search warrant, but decided to arrest defendant on the basis of the informant's report. Because the front door was a large sliding glass door, they ruled out forcible entry as dangerous to person and property. When they could not find the apartment house manager to get a key to the door, they called the police department for an officer to pick the lock. An officer equipped to do so arrived at 8:30.

The officers knocked on the door several times, announced their identity, and demanded entry. There was no response. They then picked the lock, and at 8:40 entered the apartment with their guns drawn. They found no one in the apartment after a cursory search of the living room, the bedroom, and the bathroom. An open window with its screen removed indicated that the occupants had fled. One officer detected a sweet odor similar to that of the marijuana defendant had given the informant. In other narcotics investigations the officer had smelled similar odors from marijuana that had been soaked in wine. The odor came from an open cardboard box on the floor inside an open bedroom closet. In the box the officers found a closed brown paper bag, which, when opened, was found to contain 21 plastic bags of wine-soaked, sweet-smelling marijuana.

The officers then made a thorough search of the apartment until approximately 9:30 p.m., but found no other contraband. They remained in the apartment to await the occupants' return. They arrested Mathews upon his return shortly before 11 p.m. and arrested defendant upon his return about 1:30 a.m.

Defendant contends that the trial court committed prejudicial error in admitting the cache of marijuana into evidence over his objection that it was illegally obtained. He urges that the officers did not have reasonable grounds to believe that he was present in the apartment when they entered it and that since their entry was therefore illegal, the evidence was necessarily obtained illegally. (People v. Gastelo (1967) 67 A.C. 596, 63 Cal.Rptr. 10, 432 P.2d 706.)

Penal Code section 844 provides that 'To make an arrest * * * a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which (the officer has) reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.' By persistently knocking demanding entry, and identifying themselves for several minutes before picking the lock and entering, the officers substantially complied with the notice requirements of the statute. (See People v. Rosales (1968) 68 A.C. 307, 310, 66 Cal.Rptr. 1, 437 P.2d 489; People v. Limon (1967) 255 A.C.A. 615, 618, 63 Cal.Rptr. 91.) Moreover, substantial evidence supports the trial court's finding that the officers reasonably believed that defendant was in the apartment. It is true that after the informant returned and before the officers entered they did not constantly watch the apartment; that the informant had told them that defendant was planning to leave to attend a party; and that the apartment was dark and quiet. There was testimony, however, that the apartment entrance was visible from the squad car, and that one or more officers were always in the car before the entry. The informant did not tell the officers when defendant was planning to leave, and they saw no one leave the apartment, which was dark when the officers first arrived at the apartment as well as when they entered it. The officers believed that defendant was hiding inside, and the trial court could properly find that their belief was reasonable under the circumstances. Their entry therefore complied with section 844.

The burden remains on the prosecution, however, to justify a seizure of evidence without a warrant. (People v. Burke (1964) 61 Cal.2d 575, 578, 39 Cal.Rptr. 531, 394 P.2d 67; Stoner v. State of California (1964) 376 U.S. 483, 486, 84 S.Ct. 889, 11 L.Ed.2d 856.) The Attorney General contends that although in fact no one was in the apartment, the officers could constitutionally seize the cache of marijuana in the course of a search of the apartment for the persons they reasonably believed to be therein.

During a lawful search of premises for persons believed to be in hiding, police officers may seize contraband evidence 'in plain sight' (People v. Roberts (1956) 47 Cal.2d 374, 379, 303 P.2d 721; People v. Gilbert (1965) 63 Cal.2d 609, 707, 47 Cal.Rptr. 909, 408 P.2d 365 (reversed on other grounds.).) Under such circumstances there is, in fact, no search for evidence. (See Ker v. State of California (1963) 374 U.S. 23, 43, 83 S.Ct. 1623, 10 L.Ed.2d 726; United States v. Rabinowitz (1950) 339 U.S 56, 75, 70 S.Ct. 430, 94 L.Ed. 653 (dissenting opinion of Justice Frankfurter).)

In the present case the marijuana was not in plain sight. It was in cellophane-type bags that were in a closed brown paper bag that was in an open box in an open closet. The Attorney General contends that by virtue of the odor and the informant's report that the marijuana he was given came from a brown paper bag, the officer had reason to believe that the brown paper bag contained marijuana. He concludes that the marijuana should therefore be deemed to have been in plain view of the officer.

This contention overlooks the difference between probable cause to believe contraband will be found, which justifies the issuance of a search warrant, and observation of contraband in plain sight, which justifies seizure without a warrant. However strongly conviced officers may be that a search will reveal contraband, their belief, whether based on the sense of smell or other sources, does not justify a search without a warrant. "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterpise of ferreting out crime. ² Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers." (Chapman v. United States (1961) 365 U.S. 610, 614--615, 81 S.Ct. 776, 778--779, quoting from Johnson v. United States (1948) 333 U.S. 10, 13--14, 68 S.Ct. 367, 92 L.Ed. 436; see Jones v. United States (1958) 357 U.S. 493, 497, 78 S.Ct. 1253, 2 L.Ed.2d 1514; United States v. Mullin (4th Cir. 1964) 329 F.2d 295, 297.)

When officers seek to justify a seizure without a warrant on the ground that no search was involved, the objects so seized must have been 'in the plain view of an officer who has a right to be in the position to have that view * * *.' (Harris v. United States (1968) 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067), and must have been 'fully disclosed and open to the eye and hand.' (State v. Quinn (1918) 111 S.C. 174, 180, 97 S.E. 62, 64, 3 A.L.R. 1500; see also Davis v. United States (9th Cir. 1964) 327 F.2d 301, 305; United States v. Barone (2d Cir. 1964) 330 F.2d 543, 544; Hiet v. United States (1967) 125 U.S.App.D.C. 338, 372 F.2d 911, 912; People v. Kampmann (1968) 258 A.C.A. 629, 631, 65 Cal.Rptr. 798; People v. Lees (1967) 257 A.C.A. 401, 406, 64 Cal.Rptr. 888; People v. Allison (1967) 249 Cal.App.2d 653, 656, 57 Cal.Rptr. 635; People v. Mandola (1967) 249 Cal.App.2d 599, 604, 57 Cal.Rptr. 737; People v. Jolke (1966) 242 Cal.App.2d 132, 148, 51 Cal.Rptr. 171; People v. Davis (1961) 188 Cal.App.2d 718, 723, 10 Cal.Rptr. 610.)

A plain view of simply suspicious looking or unusual objects does not justify their seizure without a warrant. Thus in People of State of California v. Hurst (9th Cir. 1963) 325 F.2d 891, 898--899 (reversed on other grounds (1965) 381 U.S. 760, 85 S.Ct. 1796, 14 L.Ed.2d 713) the court held a seizure illegal, stating: 'All that was in plain view was a large brown package about six inches inside the exposed vent hole. Upon reaching into the vent hole and removing the package (the officer) observed that the package consisted of two brown paper bags which covered two plastic bags which, in turn, covered a pillowcase. The officer then felt the Pillowcase and noted the weedy, leafy feel of the contents. There can be no...