People v. Stamper

• Decision Date: 01 May 1980
• Docket Number: Cr. 19989
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Paula Jean STAMPER, Defendant and Respondent.

Page 861

164 Cal.Rptr. 861

106 Cal.App.3d 301

PEOPLE of the State of California, Plaintiff and Appellant, v. Paula Jean STAMPER, Defendant and Respondent.

Cr. 19989.

Court of Appeal, First District, Division 1, California.

May 1, 1980.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Morris Lenk, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

James C. Hooley, Public Defender, Jay B. Gaskill, Asst. Public Defender, Oakland, for defendant and respondent.

ELKINGTON, Associate Justice.

The People appeal from the superior court's order, made pursuant to Penal Code section 995, dismissing an information charging Paula Jean Stamper with two Health and Safety Code controlled substance violations, and alleging two prior convictions of such offenses.

The issue presented is whether the magistrate's finding of no Fourth Amendment taint, in the seizure of controlled substances essential to a successful prosecution of Ms. Stamper, was supported by substantial evidence.

And: "It is fundamental that on a dismissal motion under Penal Code section 995 the superior court may not reweigh evidence, or draw inferences contrary to those reasonably drawn by the magistrate. This rule applies with equal effect where the issue resolved by the magistrate relates, as here, to the Fourth Amendment. Our function, then, is simply to determine if there is any substantial evidence in support of the magistrate's conclusion, not that of the superior court." (People v. O'Leary, 70 Cal.App.3d 323, 328, 138 Cal.Rptr. 667, 668.)

The evidence before the superior court was, of course, that adduced before the magistrate at Ms. Stamper's preliminary hearing. Considered in the light most favorable to the magistrate's determination, it established the following.

The City of Fremont's police headquarters received a citizen's report: "(T) here's been two shots gone off within the last hour . . . at 38220 Hastings Street. . . . One went off at five to 8:00, and one went off about ten minutes ago." The caller then responded "Yes" to the officer's inquiry, "You just heard shots come from that house?" Several police officers responded to the scene. One went to the premises' front door, while the others took positions around the house. After knocking, without response, at the door the officer was informed that one of the others had "heard from within the residence what sounded to be like a shotgun being chambered," as where "a round is transferred into the firing chamber, made by a shotgun or some rifles, a sliding action." Soon a woman's voice from inside asked the officer at the front door who it was. Upon the officer's response, the door was opened. The woman was asked to step outside and keep her hands in plain view and was pat-searched, as a safety precaution. A man then appeared and the officer repeated the procedure. The two were then told of the officers' reasons for being there, and were advised that "we are going to check . . . the residence and check for any victims due to the emergency doctrine." He "asked if there was anyone else in the residence, to which they stated no." The officer then shouted "inside the residence at the front door . . . to anyone that may be there that I was entering the residence."

Two officers then "entered the residence and checked for any gunshot victims." While so checking, an officer who was trained in the investigation of narcotic violations, entered the kitchen where in plain view, he observed what appeared to him to be, and which were, narcotic paraphernalia and a substantial quantity of narcotics. And under the kitchen table was observed "an unexpended rifle round . . . ." Finding no person in the kitchen, the officer did not stop, and proceeded to look elsewhere in the house. No injured or other person was found. Ms. Stamper and her male companion were placed under arrest for possession of narcotics and they and the officers left the house which was "frozen" until a search warrant could be obtained. Such a search warrant was issued, and the ensuing search revealed several pounds of marijuana, a substantial quantity of cocaine, and narcotic paraphernalia. Also found were a live and a spent rifle cartridge, and a loaded rifle of the same caliber.

No contention is made, nor does the evidence support a theory, that the officers in entering the house and searching its rooms acted other than in good faith in seeking persons who might have been injured by the reported gunshots.

It is, of course, settled law that a police officer, situated where he has a right to...