People v. Superior Court of Merced County

• Decision Date: 18 July 1968
• Citation: 70 Cal.Rptr. 362,264 Cal.App.2d 165
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT OF MERCED COUNTY, Respondent; Gregory Franklin GAFFNEY, Real Party in Interest. Civ. 994.

Page 362

70 Cal.Rptr. 362

264 Cal.App.2d 165

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF MERCED COUNTY, Respondent;

Gregory Franklin GAFFNEY, Real Party in Interest.

Civ. 994.

Court of Appeal, Fifth District, California.

July 18, 1968.

Rehearing Denied Aug. 15, 1968.

Hearing Denied Sept. 11, 1968.

[264 Cal.App.2d 166] Thomas C. Lynch, Atty. Gen., by Jack R. Winkler, Sacramento, for petitioner.

John W. Ellery, Public Defender, Merced, for real party in interest.

OPINION

CONLEY, Presiding Justice.

This petition for a writ of prohibition and mandate, pursuant to the provisions of section 1538.5, subdivision (o), of the Penal Code, seeks to get aside an order of the Superior Court of Merced County suppressing evidence relative to counts I and II of an information charging breach of the law concerning the possession of marijuana and of marijuana plants. The trial court made such an order of suppression relative to the two charges, and the prosecuting officials seek to set aside such order and make available the forbidden evidence for use in the trial. The burden of proof in such circumstances is upon the state, and we cannot say that the trial court did not have substantial evidence in the record justifying the rulings made in the two instances under attack.

On the afternoon of February 6, 1968, Detective Earl Downey of the Merced Police Department went to the Gaffney residence in Merced because of some information which he had received but which is unspecified in the record. At that time he observed a small plant, which he thought might be marijuana, in a pot through a window of the residence. However, he was not certain; therefore, he took pictures of the plant and two days later, on the afternoon of February 8, 1968, returned to the Gaffney residence accompanied by Richard Walley, an experienced narcotics agent of the State Bureau of Narcotic Enforcement. Walley had been called in by Downey to make, if possible, a positive identification of the plant. The officers parked in front of the Gaffney residence and looked through a corner bedroom widow where they could see a small gray bowl with some small green plants in it. The window was approximately 50 feet from the curb, and Walley could not identify the plants from that distance. There was no path in front of the window, but it was a worn area. The window was approximately 10 to 12 feet from the front door. Agent Walley got out of the car and walking up very close to the window peered at the plants. Walley testified that at that time he physically identified the plants as 'possibly' marijuana.

Walley and Downey then went to the front door of the Gaffney residence. Agent Walley knocked and Mr. Gaffney, father of the real party in interest, came to the door. Walley showed his badge and identification cards and then asked whose bedroom it was, pointing in the direction of the corner room. Mr. Gaffney said that the room was occupied by his son, Gregory Gaffney and his brother. Agent Walley then told Mr. Gaffney that the plant in the window was marijuana and that he had to take it. The officers entered the Gaffney home and, apparently without objection by the senior Mr. Gaffney, went into the bedroom. Walley took possession of the gray bowl containing five small plants. He noticed another bowl on a desk next to the window containing marijuana seeds and he also took it. He then searched the bedroom and found a plastic vial containing a small, partially smoked, brown, hand-rolled cigarette in the left coat pocket of a jacket hanging in the bedroom closet. While the officers were in the bedroom, Mr. Gaffney asked if they had a search warrant. They had no warrant. The officers then left, taking the plant, seeds and cigarette.

After the seizure of these items, Agent Walley caused a broadcast to be made by the Merced Police Department for the apprehension of Gregory Gaffney.

James Draper, a Merced police officer, was patrolling the city streets in a police automobile with Reserve Officer Kellogg. They received instructions by radio which Draper understood had been issued by Detective Downey to pick up Gregory Gaffney. This broadcast described him as having long, dark blond hair, a caramel-colored jacket with a fur collar, and a yellow, ivy league type shirt. When the officers halted their car at a stop sign at 17th and 'J' Streets, they saw three boys standing on the corner talking. One of them matched Gaffney's general description. The officers stopped and asked the three for identification; all of them produced identification, and, when the one who matched the description in the broadcast identified himself as Gregory Gaffney, Officer Draper instructed the other boys to go on their way but detained Gregory. The officer testified that he did not recall whether Gaffney asked him specifically whether he was under arrest. The officer testified that he said, 'I suppose you know what this is about,' and that Gaffney nodded his head affirmatively. Gaffney, on the other hand, testified that Draper said he did not know what the apprehension order was about, whether it was for questioning or for identification of persons. Gaffney also testified that he asked Draper if he was under arrest and that Draper said, 'No.'

Officer Draper then advised the headquarters of the Merced Police Department that he had Gaffney in custody, and Officer Draper was instructed to handcuff him and bring him in. Officer Draper then searched Gaffney and found a packet which he handed to Officer Kellogg. Gregory was handcuffed and put back in the police car. The officers then took Gaffney to the Merced Police Department. The packet was later found to contain marijuana.

The respondent court granted the motions to suppress the marijuana plants, the bowl of seeds found in the defendant's bedroom and the packet of marijuana found on his person. The magistrate at the preliminary examination had already suppressed the 'roach' or partially smoked cigarette.

Turning first to the suppression of the marijuana plants as ordered by the court, the view of these plants growing in the window was not a search. The plants were in plain sight, and it was legitimate for the officers to view them through the window. (People v. Martin, 45 Cal.2d 755, 762, 290 P.2d 855; People v. Willard, 238 Cal.App.2d 292, 297, 47 Cal.Rptr. 734.)

It does not appear that Officer Walley positively identified the growing marijuana plants as such. He testified only that he thought that they were possibly marijuana plants. It does not appear, furthermore, that there was a free and voluntary inviation by the father of the defendant to the officers to enter the house; Officer Walley had told him that he had to take the plants, and it seems clear that the officers were intent upon entering the house and that if there was wish on the part of Mr. Gaffney to prevent the entry he was overridden; he did ask whether the officers had a search warrant, and they did not have one, even though Officer Downey had had two days from the time he first noticed the plants through the window within which to get a search warrant. There can be no question that the taking of the marijuana seeds and the half smoked cigarette was unjustified under any theory. It should be observed that the Attorney General does not here challenged the suppression by the trial court of the plants or of the bowl of seeds taken from the Gaffney home.

In making his ruling for the suppression of the evidence, the trial court made the following observations:

'Well, I think that no authority has been given to me that indicates that there was a proper proceeding in ...