People v. Superior Court

• Decision Date: 06 March 1972
• Citation: 100 Cal.Rptr. 604,23 Cal.App.3d 1004
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; James Anthony BARRETT and Susan Rae Sinclair, Real Parties in Interest. Civ. 39471.

Page 604

100 Cal.Rptr. 604

23 Cal.App.3d 1004

The PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent James Anthony BARRETT and Susan Rae Sinclair, Real Parties in Interest.

Civ. 39471.

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

March 6, 1972.

Hearing Denied May 4, 1972.

Joseph P. Busch, Dist. Atty., Harry Wood, Head, Appellate Div., and Daniel L. Lieberman, Deputy Dist. Atty., for petitioner.

No appearance for respondent.

Edward B. Stanton, Van Nuys, for real parties in interest.

HERNDON, Acting Presiding Justice.

The People seek a writ of mandate pursuant to Penal Code section 1538.5, subdivision (o), to require the respondent court to annul that portion of its order entered on November 5, 1971, which suppresses certain evidence seized by a police officer in the manner hereinafter described.

Prior to October 26, 1970, Officer Gilbert Rivera of the Los Angeles Police Department, assigned to the Narcotics Investigation Division, had received information from an informant to the effect that Jim Barrett, living at 16007 Leadwell, and having a described telephone number, was involved in the sale of numerous types of drugs. After verifying the fact that the phone number furnished was registered to Jim Barrett at the described premises, Officer Rivera contacted his partner and proceeded to the location.

Officer Rivera went to the residence of a Mr. Rush which was located directly to the north of the Barrett residence and obtained permission from Mr. Rush to enter his yard for the purpose of observing the Barrett premises. Mr. Rush also permitted the officer to use his telephone to place a call to Mr. Barrett. The telephone call was answered by a female. The officer advised the female, who identified herself as Jim's wife, ¹ that the police knew that Jim was dealing in drugs and that the police were coming over to get Jim and his dope.

Officer Rivera immediately returned to his point of observation in the southwest corner of Mr. Rush's yard which was separated from the Barrett premises by a bamboo and chicken wire fence some six feet in height. Officer Rivera, an expert, looked through holes in the wire fence and observed roots, stems and stalks of deleafed marijuana plants scattered about in the rear yard of the Barrett premises. ²

Very shortly after returning to his point of observation following the telephone call, Officer Rivera observed the defendant Susan Sinclair as she emerged from the rear door of the Barrett residence carrying a large green plastic trash bag. Thereafter, as the officer testified, 'I saw this young lady enter a door to the west of the location which appeared to be the garage door. Several minutes later, I saw (her) leave that location, look in all directions, look over the fence into the property directly west of her location. I then observed (her) exit the rear of the property into the front of her property at 16007 Leadwell. I then observed (her) climb over a fence which separated her property and the property directly west of her. (She) then disappeared from my view.'

Officer Ferris, who was Officer Rivera's partner in the conduct of this investigation, had taken a position on Leadwell Street where he could observe the front of the Barrett premises. The officers carried walkie-talkie equipment by which Rivera reported to Ferris that he had made the telephone call as previously planned and that a blonde lady was coming out of the rear door of the Barrett residence carrying a large green trash bag.

Two or three minutes later Officer Ferris observed the defendant Sinclair in the garage area of the Barrett premises carrying a green plastic trash bag. As she came into the officer's view she appeared to be looking from side to side up and down the street. She then stepped over a small picket fence and walked across her westerly property line and onto the adjoining property of a Mrs. Dorman. She proceeded to the side of Mrs. Dorman's garage where there were three trash cans. She then walked to the first trash can, opened the lid, placed the bag inside, closed the lid and then returned to her house. She continued 'looking as she walked.'

Thereafter, Officer Rivera, who had been advised by Officer Ferris concerning Sinclair's activities in placing the trash bag in the garbage can, went to the front door of the Dorman residence and knocked several times. Receiving no answer, he went to the trash can and removed therefrom the green plastic bag which Sinclair had deposited therein. The plastic bag contained amphetamines and freshly-removed marijuana plants. Officer Rivera returned to the Barrett residence and arrested Sinclair. Barrett appeared a few minutes later and he also was arrested.

Mrs. Dorman testified at the hearing on the 1538.5 motion that she had given the defendants permission to use her trash cans. On direct examination defense counsel asked her: 'Now, did something occur about their disposal of trash that made you--that caused any arrangements to be made between you and the Barretts?' Mrs. Dorman answered in the affirmative and added: 'We had a bunch of wild cats and dogs that get loose in the neighborhood and they made a pretty big mess out of plastic trash bags and that is what Jim and Sue were suing for their trash, and I hold them they were welcome to use mine. We all use each other's stuff on our street.'

On cross-examination the prosecutor asked Mrs. Dorman: 'Was it your testimony that you would have refused a Los Angeles police officer permission to search your garbage?' Mrs. Dorman answered, 'I didn't say that.' Although this answer was not stricken, the trial judge on his own motion stopped the inquiry by stating that the question was improper and 'speculative.'

At the conclusion of the hearing the trial court held that the police officer's tactics in placing the warning telephone call and in observing the defendants' premises from the neighbor's yard were proper; that the officers had probable cause to arrest Sinclair on the basis of her observed activities following the telephone call and their observation of the marijuana plants in the back yard; and that the seizure of the marijuana plants was lawful.

However, although observing that a seizure of the plastic bag from the hands of Sinclair before she placed it in the trash can would have been lawful, the court held that when she placed it in the trash can and 'put the cover back on,' it was in a 'protected area.' The reasoning of the trial judge is reflected by comment made by him at the conclusion of the hearing. With respect to the officer's observations from the yard of Mr. Rush, the court observed:

'To my mind the going into the neighbor's yard was not an invasion of these defendants' privacy insofar as it was open to the neighbor; it was open to the officer. . . . but I don't think there is any invasion here where it can be seen from the neighbor's yard, and I think that the officer testified that he could see it without looking through the bamboo fence. He could see through the wire fence.

'That is sufficient cause to arrest a person who is on the premises for the cultivation of marijuana even though it was stems or call it stems because that would support an inference that the leaves had been taken off that were in the possession of the parties who had cultivated and grown the plants from which the stems were there. There is sufficient basis for arrest.'

With respect to the seizure of the plastic trash bag, the court held that the requirements of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, were violated and that a search warrant was required for a lawful search of the trash can. Relying upon People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, and People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262, the court further held that the contraband was in 'a protected area' by virtue of its location in Mrs. Dorman's trash can, stating: 'I think if it is hers or her neighbor's it is still a protected area and I remember her saying that she put the cover back on or somebody saying she put the cover back on. . . . I am not one who claims special expertise on what the area of the protected garbage can is yet. I think the thing that can only be said in this light, Mr. Wynn (the deputy district attorney), when they came down with Edwards it was unusual, shall I say. When th...