People v. Norton

• Citation: 86 Cal.Rptr. 40,5 Cal.App.3d 955
• Decision Date: 25 March 1970
• Docket Number: Cr. 16489
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rosana White NORTON and William Lloyd Norton, Defendants and Appellants.
• Court: California Court of Appeals

Page 40

86 Cal.Rptr. 40

5 Cal.App.3d 955

The PEOPLE, Plaintiff and Respondent, v. Rosana White NORTON and William Lloyd Norton, Defendants and Appellants.

Cr. 16489.

Court of Appeal, Second District, Division 5, California.

March 25, 1970.

Thomas M. McGurrin, McGurrin & Denny, Beverly Hills, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, and Thomas E. Warriner, Deputy Attys. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

By information, defendants White and Norton were charged with possession for sale of a narcotic, in violation of Health and Safety Code, section 11530.5. Defendants moved to dismiss the complaint on the grounds that the municipal court in case #A--223313 had already adjudicated the issue that the evidence obtained in the instant case was the result of an unlawful search and seizure and therefore the matter was res judicata. At time of arraignment in the superior court defendants made a motion under Penal Code, section 995 which was heard and denied. Each defendant pleaded not guilty. Defendants made a motion under Penal Code, section 1538.5, submitting the cause on the basis of the transcripts of the preliminary hearing, and the motion was heard and denied. Defendants personally and all counsel waived trial by jury. By stipulation of defendants personally and all counsel, the cause was submitted at trial upon the basis of the testimony contained in the transcripts of the preliminary hearing. Defendants were found guilty of violation of Health and Safety Code, section 11530, a lesser but necessarily included offense. Defendants' motion for a new trial was denied. After a hearing conducted pursuant to Penal Code, section 1204, and after having read and considered the probation officer's report, the court suspended proceedings and granted probation for three years upon various terms and conditions, among which was that defendants spend the first 60 days in county jail and pay a fine of $250. Defendants filed a timely notice of appeal, and their motion for a stay of execution pending appeal was granted, pursuant to Penal Code, section 1243.

Fred J. McKnight was a police officer for the City of Los Angeles, attached to the narcotic division. Officer McKnight had a telephone conversation with an unidentified female who informed him that defendant White was residing at 169 South Loma Drive with her small child and defendant Norton; that marijuana was being used on the premises in the presence of the child; and that defendant White was 'dealing marijuana, giving it out.'

At approximately 4:35 p.m. on July 7, 1967, approximately four or five days after the anonymous phone call, Officer McKnight and another officer, attired in civilian clothes, with neither an arrest nor a search warrant, drove to the Loma Drive address in an unmarked police vehicle, and approached the front door. The officers found that 'the front door was completely open,' as far back against the wall as it could go. Officer McKnight stood at the door for as long as 45 seconds, possibly a minute, 'listening (and) observing.' He heard a radio or record player, which he concluded was in the rear of the residence. He also heard sounds of movement of one or more persons, coming from the rear of the residence. From where Officer McKnight was standing in the doorway, the 'major portion of the dining room table and a goodly portion of the interior of the dining room' were visible. The approximate distance between the dining room table and the officer was 11 steps, and nothing in between obstructed the officer's vision. The lighting in the dining room area was 'good,' the light coming from the front door, an entryway from the kitchen, and windows in both the living and dining rooms.

Officer McKnight observed a small spice jar on the dining room table which contained approximately 1/2 inch of 'finely grated green plant material.' The officer also observed 'a large yellow tin container' of what appeared to be marijuana, and a package of Zig Zag cigarette papers lying on the table.

Officer McKnight then knocked on the 'exterior wood portion on the outside of the entryway,' which was 'part of the exterior of the building.' Approximately 45 seconds to a minute elapsed without anyone answering, and the officer concluded that the person within could not hear him. He and his partner entered the residence without saying anything and without physically touching the door, and examined the objects on the dining room table, confirming the earlier conclusion that the plant material was in fact marijuana. The officer chose not to leave to obtain a warrant at this time for the reason that he did not know whether anyone had observed his approach to the building, and he feared that the contraband might be destroyed were he to leave.

The two officers walked to the rear portion of the residence, from where they had heard the sounds earlier, and found defendant Simon ¹ there. The officers identified themselves and explained that they were conducting a narcotics investigation. Defendant Simon explained that he did not live in the residence, but rather was merely visiting defendant White. He stated further that he was her business partner in a dress shop, and that he was presently working on some dresses in the residence. Officer McKnight next examined the bowl of a 'large hookah pipe' in the room, and found it to contain marijuana. Defendant Simon was thereupon placed under arrest. The officers asked defendant Simon where defendant White was, and he answered that she had left but would be returning in 10 or 15 minutes.

Defendants White and Norton returned to the residence approximately 10 minutes later, and were arrested. After they were placed in a radio unit and transported to police headquarters, the officers conducted a further search, locating other items of plant material resembling marijuana 'throughout the residence.' The search revealed a quantity of marijuana sufficient to make 600 cigarettes.

Defendants White and Norton contend that there was no probable cause for the arrest of defendants or any other person at the premises involved. ² In Fraher v. Superior Court, 272 Cal.App.2d 155, 159--160, 77 Cal.Rptr. 366, 369, the court stated:

'* * * Reasonable cause for an arrest may be based on hearsay information and is not limited to evidence which would be admissible at a trial on the issue of guilt. (People v. Boyles, 45 Cal.2d 652, 290 P.2d 535.) However, if the information is obtained from an anonymous informer it cannot be considered as reasonable cause for an arrest unless other evidence is presented to the court to justify the conclusion that reliance on the information was reasonable. Reliance on anonymous information may be justified by evidence obtained through the personal observations of the police. (Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36.) Such independent evidence need not itself constitute reasonable cause to make an arrest. (People v. Prewitt, 52 Cal.2d 330, 341 P.2d 1.)

'In this case, acting on the anonymous information, * * * (the) officers went to the petitioners' residence to seek an interview concerning the reported narcotics violations. It is not unreasonable police conduct to seek an interview with the person accused of criminal activity. (Citations.) (The officers) observed the water pipe by looking through the front window of the petitioners' residence. ' (The manner of this observation) does not constitute an unreasonable search. * * * ' (People v. Martin, 45 Cal.2d 755, 762, 290 P.2d 855; Bielicki v. Superior Court, 57 Cal.2d 602, 607, 21 Cal.Rptr. 552, 371 P.2d 288; People v. Garcia, 248 Cal.App.2d 284, 287, 56 Cal.Rptr. 217; People v. Willard, 238 Cal.App.2d 292, 297, 47 Cal.Rptr. 734.)'

While the police officers had probable cause to enter the residence to make an arrest, did they do so in violation of Penal Code, section 844, which states: 'To make an arrest, a private person, if the offense be a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.'

The cases of Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, People v. Rosales, 68 Cal.2d 299, 66 Cal.Rptr. 1, 437 P.2d 489, and Duke v. Superior Court, 1 Cal.3d 314, 82 Cal.Rptr. 348, 461 P.2d 628, to name but a leading few, have articulated the purpose of section 844. It was not until People v. Bradley, 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129, however, that the California Supreme Court directly ruled upon the question of whether an open door constituted a waiver of physical privacy, or, to put it another way, a consent to unannounced entry into an abode when the purpose of entry was to consummate an arrest. In the majority opinion, the court there specifically refrained from exceeding the required holding in accordance with the facts before it. At page 87 of Bradley, 81 Cal.Rptr. at page 461, 460 P.2d at page 133, the court stated:

'Although section 844 codified the common law rule requiring peace officers to demand admittance and explain their purpose before they break open a door or window, the section is silent or inexplicit as to whether the officers must make such a demand and explanation before they enter a house through an open door. Even if at common law an unannounced intrusion through an open door was lawful, we are satisfied in view of the purpose of section 844, as stated in People v. Rosales, Supra, 68 Cal.2d 299, 304, 66 Cal.Rptr. 1, 437 P.2d 489, that the demand and explanation requirements of that section also apply where, as here, officers walk into a dwelling through an open door at nighttime when the occupant apparently is asleep. (Fn. 1.) Under the circumstances here appearing there was a breaking within the meaning of the...