People v. Sloss

• Decision Date: 28 August 1973
• Docket Number: Cr. 22495
• Citation: 34 Cal.App.3d 74,109 Cal.Rptr. 583
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Deborah SLOSS, Defendant and Appellant.

Page 583

109 Cal.Rptr. 583

34 Cal.App.3d 74

The PEOPLE of the State of California, Plaintiff and Respondent, v. Deborah SLOSS, Defendant and Appellant.

Cr. 22495.

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

Aug. 28, 1973.

[34 Cal.App.3d 78] Kenneth W. Gale, San Pedro, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Howard J. Schwab and Donald J. Oeser, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

This is an appeal from an order granting probation following appellant's conviction by jury trial of one count of possession for sale of marijuana in violation of Health and Safety Code section 11530.5 and one count of unlawfully offering to sell, furnish or give away marijuana in violation of Health and Safety Code section 11531.

On September 21, 1971, Officer Hill of the Long Beach Police Department obtained a search warrant authorizing a search of an apartment at 1243 East Ocean in Long Beach for the purpose of seizing four pounds of marijuana alleged to be contained in a metal box in brown wrapping paper with a mailing label bearing appellant's name, as well as certain correspondence and paraphernalia used to package or consume marijuana. In his affidavit in support of the issuance of the search warrant Officer Hill stated that on September 17, 1971, he had been contacted by Agent Killewald, a United States Customs agent, who stated that he had in his custody a parcel containing approximately four pounds of marijuana destined for delivery to 1243 'Upper' East Ocean in Long Beach. On September 20, 1971, Agent Cunningham showed that parcel to Officer Hill at the United States Customs House. The parcel was wrapped in brown wrapping paper and addressed to Mr. and Mrs. C. D. Swarts, care of Miss D. Sloss, 1243 'Upper' E. Ocean, 90803, and the return address was Dave G. Olsen, 106 E. 3rd Street, Kragga Kamma, South Africa. In the presence of Officer Hill, Agent Cunningham opened the parcel, removed one of four packages and from that package removed a small amount of plant material. The sample was turned over to a Long Beach Police Department criminalist who reported that it was marijuana.

On September 17, 1971, Officer Hill had checked the utilities for 1243 East Ocean The package was delivered by a mailman at about 6 p.m. From a vantage point where he could observe both the front door and the inside of the residence, Officer Smith observed Jasmann accept the package and take it into the south bedroom. Shortly after 6 p.m. Officer Hill, together with Customs Agent Killewald and other Long Beach police officers, went to the rear of the residence, where they met Jasmann on the rear steps. Officer Hill identified himself, informed Jasmann that he was there to execute a search warrant, and showed Jasmann a copy of the warrant. The officers entered the house, and Hill went to the south bedroom where he removed the package from a bed. Officer Hill then advised Jasmann of his constitutional rights. Jasmann stated that he understood his rights. Officer Hill asked Jasmann if he were willing to talk about involvement with narcotics and Miss Sloss in the residence and Jasmann stated that he was.

and learned that Lawrence M. Jasmann lived in the upper unit and that the lower unit was vacant. Officer Hill and another officer went to 1243 East Ocean and observed on the front door of the building two pieces of tape, one bearing the name Jasmann and the other bearing the name Sloss. On the floor of the vestibule of the door there were two pieces of mail, one addressed to Debbie Sloss, 1243 East Ocean 'Upper' and the other addressed to Lawrence Jasmann, 1243 East Ocean. The affidavit stated that the parcel would be placed in normal mail channels and delivered between 4 and 6 p.m. on September 21, 1971, and concluded with the officer's opinion that the contents of the parcel would be concealed in the house, or on the persons of Jasmann or Sloss shortly after delivery of the package. The search warrant issued at 3:50 p.m.

Jasmann stated that he and appellant had been living at the apartment since April of 1971, that they shared the rent, kept separate bedrooms, and used the rest of the apartment in common. He stated that he was aware of the use of marijuana in the residence by appellant and her friends, that he disapproved of it and was not involved in it. Officer Hill asked when appellant was expected to return and Jasmann said in the neighborhood of 9 p.m. Hill asked Jasmann for permission to use Jasmann's bedroom and to leave the parcel on the dining room table. Jasmann gave his permission. Jasmann was not placed under arrest.

Officer Hill left the package on the table. From the dining room table Officer Hill took a blue airmail envelope postmarked Port Elizabeth, South Africa, addressed to appellant. Also seized during the search of the residence were two photographs of appellant, an application for visa to the Republic of South Africa, cigarette papers and several plant fragments.

Officer Hill left the residence at approximately 7:30. Officers Smith and Scholtz remained in Jasmann's bedroom for the purpose of observing appellant's reaction to the package when she came home. Jasmann's bedroom was about six feet from the dining room table, and the door was left open five or six inches.

At about 8:30, Officer Smith heard two female voices and observed appellant and Miss Montaine. Appellant or Miss Montaine said, 'Hi, Larry, what's happening.' Jasmann said, 'Your package came.' Appellant came into the dining area, looked at the package and said, 'F---, the package from Africa is here.' Miss Montaine said, 'F---, can we smoke some now?' Appellant replied, 'Yes.' Miss Montaine said, 'Will you sell me two lids, and I'll pay you the full price?' Appellant said, 'Sure.'

Subsequently appellant went to the telephone, dialed a number and asked for a party. She left a message stating that she had received a letter from Africa and wanted to read the letter to the other party. Miss Montaine then stated, 'I'm going to call Fred.' She dialed the number and then said, 'Fred, Debbie got her package Miss Montaine hung up the phone and said to appellant, 'Let's open the package. Can we open the package?' Appellant said, 'Sure.' As they were opening the package appellant said, 'This is the best stuff money can buy. It's almost pure . . . grass. . . . There's no stems or seeds.' Miss Montaine asked, 'Can I buy a brick?' Appellant replied, 'They go for $200 a brick.' Miss Montaine said, 'Will you sell me half a brick for a hundred?' Appellant replied, 'Sure.' Officers Smith and Scholtz then came out of the bedroom and arrested appellant and Miss Montaine.

from Africa. We're going to open it. Come on over.'

The marijuana in the package weighed 1,996 grams and was in highly potent form. Approximately 6,000 cigarettes could be made from the marijuana in the package. Based upon the quantity and character of the marijuana and the conversation overheard in the apartment, it was the opinion of Officers Smith and Hill that the marijuana was possessed for purposes of sale.

With a five power magnifying glass Officer Hill observed the two photographs found in the apartment pursuant to the search warrant. One of the photographs showed appellant holding a cigarette. As an expert on marijuana Officer Hill formed the opinion that the cigarette she was holding in the photograph was a marijuana cigarette. This opinion was based on his observation that the cigarette was hand-rolled, was small in size, and was held in the manner typical of marijuana cigarettes. The size and manner of holding the cigarette is designed to prevent the escape of any of the smoke. Appellant admitted at trial that it was a marijuana cigarette.

Appellant raises numerous contentions. They may be grouped as follows: 1. Defects in the search warrant. 2. Error in admitting testimony of the conversations overheard by the officers from Jasmann's bedroom. 3. Error in the admission of certain documentary and opinion evidence. 4. Insufficiency of the evidence to show an offer to sell marijuana as found in Count II. We find none of these contentions persuasive and therefore affirm the judgment.

I THE SEARCH WARRANT

Appellant contends that the search warrant was based on tainted evidence because the package was not lawfully opened by United States Customs Agent Killewald or by Agent Cunningham, who showed the contents to Officer Hill. This is without merit. All mail of foreign origin believed to contain merchandise is subject to customs inspection. (19 U.S.C. § 1499; 19 C.F.R. §§ 9.0, 9.2, 9.5; 39 C.F.R. § 61.1 (36 Fed.Reg. 11850--51, June 22, 1971).) Such customs searches do not require a warrant or probable cause to believe the merchandise is contraband. (United States v. Beckley, 335 F.2d 86, 88--89 (6th Cir. 1964), cert. denied, 380 U.S. 922, 85 S.Ct. 921, 13 L.Ed.2d 807; United States v. Swede, 326 F.Supp. 533, 536 (S.D.N.Y.1971).)

Appellant raises several technical objections to the search warrant and the affidavit in support thereof. The affidavit is on a form describing the premises to be searched and the evidence to be sought. It contains a form statement, under oath, signed by the affiant, concluding that the property is at the described location and is being used to commit a felony. On the form is a line stating: 'Source of Information (see Attachment _ _.)' The numeral '1' is typed into the blank. 'Attachment No. 1' is a two-page statement of the facts relied upon by the affiant. Appellant argues that Attachment No. 1 is not signed or sworn and is not incorporated into the affidavit and therefore could not be considered in support of the affidavit. Such an extremely technical and formalistic argument is inappropriate, as we are told by the Supreme Court in United States v. Ventresca, 380 U.S. 102, 108, ...