People v. Rice

• Decision Date: 08 July 1970
• Docket Number: Cr. 3850
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Earl RICE, Defendant and Appellant.

Page 200

89 Cal.Rptr. 200

10 Cal.App.3d 730

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Earl RICE, Defendant and Appellant.

Cr. 3850.

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

July 8, 1970.

George H. Chula, Santa Ana, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., W. E. James, Asst. Atty. Gen., and Mark Leicester, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

GARDNER, Presiding Justice.

Prosecution for violation of section 11530.5, Health & Safety Code. Judgment of conviction of violation of section 11530, Health & Safety Code, affirmed.

Appellant was charged with possession of marijuana for purposes of sale (Health & Safety Code, § 11530.5). After a trial by jury he was found guilty of possession of marijuana (Health & Safety Code, § 11530, a lesser and necessarily included offense). He appeals from the judgment of conviction.

Another individual, Mark Stanton, was to be tried as a codefendant with appellant, however, a motion to suppress certain contraband was granted as to Stanton and the charges against him were dismissed on motion of the district attorney.

On January 11, 1968, Sergeant Green of the Palm Springs Police Department was informed by the Los Angeles Police Department that an arrest warrant had been issued for the appellant for possession of marijuana for the purposes of sale. It was stipulated at trial that no such warrant had, in fact, been issued. Nevertheless based upon the belief there was such a warrant, Sergeant Green, accompanied by Officer Collurafici, went to an address in Palm Springs to effect an arrest on what he believed to be an outstanding warrant.

The officers had information which led them to believe that appellant was involved in the use of narcotics and was so involved with other persons. They felt that there was a strong possibility that there were others at the residence and in case there was a 'dope party' in progress, they wanted to be sure they had adequate manpower to handle it. To determine how many people were there, Collurafici proceeded to the rear of the house while Green remained at the front door. While proceeding to the rear of the house, Collurafici looked into an open window into the living room. He observed no one in the room but did detect an odor of burning marijuana emanating from the room. He then returned to the front of the house and told Sergeant Green that he had smelled the odor of marijuana coming from the house.

Sergeant Green knocked on the door and appellant opened the door. Green identified himself as a police officer and said that he wanted to talk to the appellant. Appellant said, 'We can talk here.' Sergeant Green asked his named and appellant said, 'Eddie Rice.' Sergeant Green advised him that he was wanted by the Los Angeles Police Department and that he was under arrest for 'marijuana for sale.'

At the same time the officers noticed the strong odor of burning marijuana coming from the inside of the residence. They flashed a light into appellant's eyes and noted that the pupils remained dilated. Sergeant Green qualified as an expert and gave his opinion that the appellant was apparently under the influence of a narcotic at that moment.

Both officers then entered the house and commenced to search. Sergeant Green conducted a search of the bedrooms, discovered certain contraband and arrested Mr. Stanton who was in the bedroom. In the meantime, Officer Collurafici remained in the living room, on the arm of a couch noticed a shoe box and upon looking into it, he saw a substance which he recognized as marijuana. The box contained several pieces of hashish, some marijuana, a pipe, and marijuana cigarette butts.

The appellant was informed of his constitutional rights on two occasions. The first time immediately after his arrest, and, again, upon the discovery of the box of contraband. The advice given by Sergeant Green was, 'He was advised that he was under arrest. He was also advised that he was entitled to an attorney; that if he coluld not afford an attorney, one would be provided for him free of charge. He was advised that he did not have to make any statement of any kind. He was advised that anything he would say could and would be used against him at a later date in a court of law.' Upon inquiry by Sergeant Green, the appellant stated that he understood the advisement given. Thereupon Officer Collurafici picked up a piece of hashish from the shoe box and asked the appellant, 'What is this?' The officer testified, over objection, that the appellant replied, 'Hashish.'

The appellant testified that he had been invited to stay in this house; that he had arrived the previous evening; that after hiking and swimming, he went out to have dinner and when he returned from dinner, Mr. and Mrs. Stanton were in the living room; that he conversed with them briefly and then retired; that later in the evening he was awakened by a loud knocking noise at the front door; when no one else answered, he went to the front door, opened it and was confronted by the officers, one of whom was shining a flashlight in his eyes. He was asked his name, to which he replied--'Eddie Rice.' The officers said they wanted to talk to him and he stated, 'We can talk here.' At this point, the officers forced the door open and one of them escorted him into the living room. The other officer then came into the room with the Stantons. An officer removed a substance of some kind from the purse of Mrs. Stanton and asked appellant if he knew what it was an he replied, 'Hashish.' The appellant stated that the officers told him that Mrs. Stanton and her child would be placed in jail if he did not cooperate.

He denied knowledge of any contraband in the house or that he had smoked any marijuana that evening, that the only odor he was aware of was that of burning incense.

Appellant contends:

I.

THAT THE ARREST AND SEARCH OF APPELLANT WERE UNLAWFUL BECAUSE THEY WERE THE RESULT OF THE EXPLOITATION OF AN ILLEGAL ARREST OF OTHER PERSONS.

Prior to trial appellant made a motion to suppress all evidence seized incident to his arrest. At that hearing, it was stipulated that the court could consider the evidence taken at the preliminary hearing, ¹ and that taken at a prior motion to suppress before another judge. In addition, the trial court heard the testimony of two witnesses for the defense.

Appellant contends that information leading to his arrest was obtained through an unlawful arrest of Greg Stephan, that as a result of the illegality of the arrest of Stephan, the police obtained certain information from a Miss Mardesich who was with Mr. Stephan; that this information led to his arrest; that this information was tainted by the illegal arrest, and, therefore, rendered unlawful his eventual arrest and the ensuing search. (Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.)

There are two answers to this contention: (1) there is no evidence in this record that the location of the appellant was obtained from Miss Mardesich, and (2) any information obtained from her was not obtained by reason of any arrest, lawful or otherwise, of Mr. Stephan but rather by reason of the lawful taking into custody of Miss Mardesich.

The record shows that a 'hippie type truck' being driven by Mr. Stephan at 10:30 to 11:00 p.m. in Palm Springs was stopped by a Palm Springs Police Officer for speeding and for not having a light over the rear license plate. Mr. Stephan had identification; his male, adult companion, Mr. Mardesich, did not. At the time of the stop, the police noticed an open container of beer in the vehicle--for which the driver was cited--and saw in the rear of the vehicle two girls, 16 and 17 years of age, lying on a mattress partially covered by a blanket. Upon inquiry, the girls said they were from Long Beach, that they were in Palm Springs for the weekend, that they were staying with the two male adults, one of whom was said to be a brother of one of the girls, and that they had their parents' permission so to do. They had no identification. The police suspected that the girls were runaways, took the girls into custody to the Palm Springs Police Station. There, they called the girls' parents and upon determining that the girls had parental consent, released them. At the same time, Mr. Stephan and Mr. Mardesich were arrested and taken to the police department. It was during this period of the detention of the girls and the arrest of the male adults that the police ascertained the address at which the appellant was evantually arrested. The girls gave that address as the address at which They were staying. There is nothing in the record to show that the police asked them if they knew the appellant would be there. Thus, there is no evidence that the officers ascertained the whereabouts of the appellant either from the girls or from the two male adults who had been arrested.

As indicated, the driver of the car, Mr. Stephan, and Mr. Mardesich were arrested by the Palm Springs Police Officer. They were arrested for contributing to the delinquency of a minor and for burglary. It is these arrests which appellant attacks. However, whatever the reason for these arrests, it is not necessary to determine their validity for the purpose of making a ruling of this issue.

The police had a lawful right to stop the vehicle for a traffic violation. Thereafter, they saw enough to reasonably justify the exercise of their authority under Welfare & Inst.Code, § 625(a), and to take the minor girls into temporary custody. That section provides that a peace officer may, without a warrant, take into temporary custody a minor who is under the age of 18 years when such officer has reasonable cause for believing that said minor is a person described in section 601 of the Welfare & Inst.Code. Runaways clearly come within section 601, Welfare & Inst.Code.

Courts do not exist in a vacuum. We are aware that runaway...