People v. Willard, Cr. 5026

Citation47 Cal.Rptr. 734,238 Cal.App.2d 292
Decision Date22 November 1965
Docket NumberCr. 5026
CourtCalifornia Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Appellant, v. Jesse WILLARD, Defendant and Respondent.

Page 734

47 Cal.Rptr. 734
238 Cal.App.2d 292
PEOPLE of the State of California, Plaintiff and Appellant,
Jesse WILLARD, Defendant and Respondent.
Cr. 5026.
District Court of Appeal, First District, Division 1, California.
Nov. 22, 1965.
Hearing Denied Jan. 19, 1966.

Page 735

[238 Cal.App.2d 293] Thomas C. Lynch, Atty. Gen. of California, Albert W. Harris, Jr., Jennifer L. Bain, Deputy Attys. Gen., San Francisco, for appellant.

John D. Nunes, Public Defender, James C. Hooley, Chief Asst. Public Defender, Richard M. Bryan, Asst. Public Defender, Oakland, for respondent.

SULLIVAN, Presiding Justice.

Defendant was charged in an information with possession of heroin. His motion to set aside the information was granted (Pen.Code § 995) and the People appeal.

At the preliminary hearing Sergeant Hilliard of the Oakland Police Department and assigned to its narcotic detail testified that on August 27, 1964, at about 1:00 a. m. he and two other police officers went to a single-story duplex house at 5902 Holway Street, Oakland, to make a narcotics investigation. Some fifteen minutes earlier, Hilliard had received a telephone call from an informant who stated that Sylvia Chandler and James Lucas were living at the Holway Street address; 1 that Miss Chandler was in possession of heroin; and that defendant was going to the house to see if he could get some of the heroin to take to San Francisco to sell.

At that time Sergeant Hilliard was already in possession of additional information concerning the above parties which he had received from a second informant over the preceding three or four months. This information was to the effect that Lucas and Miss Chandler were in possession of and selling [238 Cal.App.2d 294] heroin; that Lucas had been selling heroin for at least three or four months in a specified area; that on numerous occasions within the week preceding August 27 defendant had been observed with Lucas in that area; that the two men had been observed there together in a two-tone green Oldsmobile; and that Miss Chandler was in possession of narcotics that very day. Defendant, Lucas and Miss Chandler were all known to the witness as persons involved in the narcotics traffic. He had arrested defendant in the past 'for investigation of possession of narcotics' and knew that defendant had been convicted of possession of narcotics paraphernalia.

When the officers arrived at the Holway Street premises on the night in question, Sergeant Hilliard saw two men in a green Oldsmobile parked in front of the house and noticed that it was the same car in which he had seen defendant on several prior occasions. Hilliard walked to the front of the house to verify the address and as he approached the east side he heard voices coming from the rear area which was lighted. He then saw Sylvia Chandler come out the back screen door, go to the garbage can and reenter the house.

Hilliard further testified that he thereupon went down to the corner to contact his two fellow officers and all three returned to the Chandler residence. All of them were in plain clothes. They walked to the rear of the house and entered onto the property by passing through an open gate. They walked along the side of the house to the back porch area 2 whereupon Officer Hilliard stepped up onto the first step, his

Page 736

fellow officers remaining on the sidewalk. This step was approximately one foot off the ground and while standing on it Hilliard could look through a screen door into the kitchen--the back door itself being wide open. Officer Hilliard's purpose in going there was to conduct an investigation, although upon arrival the officers were as quiet as possible so as not to inform the occupants of the house that they were there. There were no bushes or hedges nearby, no roof over the porch, no way for the officers to conceal themselves: they were just 'standing there,' the other two officers on the sidewalk and Hilliard upon the step. Anyone looking out the window or door would have seen them.

[238 Cal.App.2d 295] After a few minutes Hilliard observed Miss Chandler enter the kitchen from the front area of the house, followed shortly thereafter by defendant. The latter walked over and stood next to Miss Chandler and told her of his desire to take some of the 'stuff' with him to San Francisco where he was sure he could get rid of it. Miss Chandler replied, 'Well, I don't have that much stuff. He didn't leave me very much this time.' Respondent then said 'Well, while I am here I might as well try some of the stuff.' Miss Chandler replied 'Okay' and with this disappeared to the rear of the house, out of Hilliard's view. Moments later she returned into view and walked over to defendant; he in turn got a glass from the cabinet, filled it with water and walked toward the rear of the house. For a brief time, then, defendant was out of Hilliard's observation.

A moment later a light came on in a window immediately alongside Hilliard's head. Looking toward it Hilliard could see that it was the bathroom and additionally could see defendant therein, standing by the wash basin. He watched defendant 'then take a white paper, remove the contents and put it in a spoon, light a match under the spoon, remove an eyedropper and hypodermic needle from his sweater pocket, draw the contents off the spoon and inject it in his arm.' While defendant was in the process of doing this Hilliard turned around and told Officers Romero and Sawdon what he saw going on and that as soon as defendant finished and walked into the kitchen the officers would immediately enter the house and arrest him.

After defendant 'had finished injecting a substance into his arm and had folded a small bindle of paper and placed it in his shirt pocket and then was putting something into his sweater pocket,' Hilliard glanced toward the kitchen and saw Miss Chandler start walking towards the screen door. The sergeant then opened the screen door, stepped into the kitchen, around Miss Chandler and went into the bathroom where he placed defendant under arrest for investigation of possession of heroin. He led defendant by the wrist into the kitchen where he instructed Officer Romero to search him while he held him by the wrist. This search turned up a small package in defendant's shirt pocket, which package was later stipulated to contain heroin.

No consent was asked for nor obtained by Hilliard before entry into the house itself or into the bathroom. Nor had the [238 Cal.App.2d 296] officers procured either an arrest warrant or a search warrant.

Exercising the privilege granted by Code of Civil Procedure section 1881 subdivision (5) 3 the police refused to disclose the names of the two above-mentioned informants. As a result the magistrate at the preliminary hearing treated the information as being from an anonymous unreliable informant.

At the conclusion of voir dire examination of Sergeant Hilliard by defendant, defense counsel moved to strike all of the testimony of the witness pertaining to his observations of the occupants of the house and the conversations he heard upon the ground that such testimony was the 'product

Page 737

of illegal police activity' violative of defendant's rights under the Fourth Amendment. Defendant also objected to the introduction of the heroin on the ground that it was the product of an illegal search and seizure. The motion was denied and the objection overruled. 4

The crucial question confronting us on this appeal is whether the acts of Sergeant Hilliard in entering the back yard of the premises and in looking from the porch step into the interior of the house constituted an illegal search in violation of defendant's rights guaranteed by the Fourth Amendment.

In Bielicki v. Superior Court (1962) 57 Cal.2d 602, 605, 21 Cal.Rptr. 552, 553, 371 P.2d 288, 289, the court gave the following explanation of the term 'search' as used in the Fourth Amendment of the United States Constitution and in article I, section 19 of the California Constitution: "[T]he term implies some exploratory investigation or an invasion and quest, a looking for or seeking out. * * * A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way.' [Citation.] The constitutional guarantees, of course, prohibit not all searches but only those that are 'unreasonable.' [Citations.] And '[t]here is no formula for the determination of reasonableness. Each case is to be [238 Cal.App.2d 297] decided on its own facts and circumstances.' [Citations.]' (In accord: People v. Norton (1962) 209 Cal.App.2d 173, 176-177, 25 Cal.Rptr. 676; People v. Young (1963) 214 Cal.App.2d 131, 134-135, 29 Cal.Rptr. 492; People v. King (1965) 234 A.C.A. 491, 496, 44 Cal.Rptr. 500; People v. Green (1965) 235 A.C.A. 652, 657, 45 Cal.Rptr. 371. For other cases using the same definition of 'search' see: People v. West (1956) 144 Cal.App.2d 214, 219, 300 P.2d 729; People v. Ambrose (1957) 155 Cal.App.2d 513, 522-523, 318 P.2d 181; People v. Spicer (1958) 163 Cal.App.2d 678, 683, 329 P.2d 917; People v. Amos (1961) 190 Cal.App.2d 384, 391, 11 Cal.Rptr. 834; People v. Rayson (1961) 197 Cal.App.2d 33, 39, 17 Cal.Rptr. 243; Mardis v. Superior Court (1963) 218 Cal.App.2d 70, 74-75, 32 Cal.Rptr. 263.)

The rule is settled in California that 'looking through a window does not constitute an unreasonable search.' (People v. Martin (1955) 45 Cal.2d 755, 762, 290 P.2d 855, 858; Bielicki v. Superior Court, supra, 57 Cal.2d 602, 607, 21 Cal.Rptr. 552, 371 P.2d 288; People v. Moore (1956) 140 Cal.App.2d 870, 871, 295 P.2d 969; People v. Hen Chin (1956) 145 Cal.App.2d 583, 586, 303 P.2d 18; People v. Amado (1959) 167 Cal.App.2d 345, 347, 334 P.2d 254; People v. Steffano (1960) 177 Cal.App.2d 414, 417, 2 Cal.Rptr. 176; People v. Covan (1960) 178 Cal.App.2d 416, 418, 2 Cal.Rptr. 811; People v. Feeley (1960) 179 Cal.App.2d 100, 105, 3...

To continue reading

Request your trial
51 cases
  • People v. Maltz
    • United States
    • California Court of Appeals
    • January 14, 1971
    ...(See generally, People v. Edwards, Supra, 71 Cal.2d at pp. 1100--1104, 80 Cal.Rptr. 633, 458 P.2d 713; People v. Willard, 238 Cal.App.2d 292, 298--307, 47 Cal.Rptr. 734.) Based upon the 'open fields' doctrine of Hester v. United States, 265 U.S. 57, 58--59, 44 S.Ct. 445, 68 L.Ed. 898, 899--......
  • People v. Sirhan
    • United States
    • United States State Supreme Court (California)
    • June 16, 1972
    ...... (See, e.g., People v. Terry, 70 Cal.2d 410, 427--428, 77 Cal.Rptr. 460, 454 P.2d 36 (cert. den. 399 U.S. 911, 90 S.Ct. 2205, 26 L.Ed.2d 566; rehg. den. 400 U.S. 858, 91 S.Ct. 26, 27 L.Ed.2d 97); People v. King, 5 Cal.App.3d 724, 725--727, 85 Cal.Rptr. 461; People v. Willard,238 Cal.App.2d 292, 298 et seq., 47 Cal.Rptr. 734.) .         Here the officer who found the envelope was stationed in the rear yard of the Sirhan residence to keep intruders away. Defendant's mother and brothers lived in the house, 21 and they and others undoubtedly went into the rear ......
  • People v. Bradley
    • United States
    • United States State Supreme Court (California)
    • October 31, 1969
    ...on this point, 362 U.S. 628, 80 S.Ct. 1050, 4 L.Ed.2d 1002; Stock v. Plunkett, 181 Cal. 193, 194--195, 183 P. 657; People v. Willard, 238 Cal.App.2d 292, 305, 47 Cal.Rptr. 734; People v. Estrada, 234 Cal.App.2d 136, 145, 44 Cal.Rptr. 165, 11 A.L.R.3d Defendant next contends that the officer......
  • Lorenzana v. Superior Court
    • United States
    • United States State Supreme Court (California)
    • June 20, 1973
    ...impliedly, to public use, and the officer who, in such circumstances, stands upon property not so committed. In People v. Willard (1965) 238 Cal.App.2d 292, 47 Cal.Rptr. 734, police officers without a warrant went upon the defendant's property, and from the steps leading up to a side door o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT