Opinion
For Opinion on Hearing, see 81 Cal.Rptr. 457, 460 P.2d 129.
Peter Clarke, San Diego, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Mark L. Christiansen, Deputy Atty. Gen., for plaintiff and respondent.
OPINION
LAZAR, Associate Justice pro tem.
Assigned by the Chairman of the Judicial Council.
Defendant was tried by the court, sitting without a jury, and found guilty of violating Health and Safety Code sections 11530 (cultivating marijuana) and 11530.5 (possession of marijuana for sale); two prior felony narcotic convictions were admitted. Defendant objected to the admission of physical evidence as having been procured by unlawful search and seizure in violation of the Fourth Amendment of the United FACTS
The facts essential to consideration of the questions presented are these: The evening of July 28, 1967, Deputy Sheriff Narron, who had about seven and one-half years in the narcotics section, was told by an informer, of unknown reliability, that defendant had a narcotics record, that he had in his residence a quantity of marijuana, plastic bags in a drawer containing marijuana, and a pan in the residence containing marijuana; that the informer believed defendant was selling marijuana. The next evening, July 29, the same informer told Officer Narron that defendant was growing marijuana under or near a fig tree just to the rear of defendant's residence. On the first occasion Deputy Narron was given some vegetable matter which the informant said was from defendant's residence; on the second occasion he gave the deputy what he said was a slip off the marijuana plant that was growing in defendant's back yard.
After the second conversation with the informant, at about 9:00 p. m., Officer Narron investigated the yard adjacent to defendant's residence, believing defendant not to be at home. The entire premises consisted of a front house facing south, a driveway along the east side of the front house which terminated in a separate garage building to the rear and east of the front house. The defendant's residence was attached to the north end of the garage and the fig tree was about 20 feet from defendant's door. The rear yard area was fenced, but the record does not clearly disclose to what extent or in what manner. Officer Narron testified 'I don't know if it is considered the back yard of the owner of the property or his [defendant's]. I don't know how much yard he [defendant] has control of.'
Deputy Narron walked along the driveway to the yard area, entered it, and observed a marijuana plant [later determined to be three] growing in a nail keg near the base of a fig tree. It was 'covered by foliage' and had to be observed from within a foot of the tree.
The deputy then checked the records of the Sheriff's Office and of the local parole office. The records showed that defendant had been on parole 'for narcotics'. A physical description and photograph of the defendant was obtained from the Sheriff's records. Narron attempted to procure a search warrant through a deputy district attorney, but was unsuccessful due to the unavailability of a judge.
Deputy Narron decided to proceed, nevertheless, and assembled a group of law enforcement officers to assist him. The presence of the defendant at home was assumed by reason of an automobile in the driveway believed to be his. One officer was stationed at the growing marijuana plant. The other officers entered defendant's residence through a fully open door into a combination living room-bedroom. The time was about 3:15 a. m., July 30.
At the time of entry, by aid of flashlight, an apparent male figure, defendant, was observed lying on the bed. As the officers walked in the person raised up and started to speak. The officers identified themselves and arrested the defendant for possession of and cultivating marijuana. Defendant was told his constitutional rights; he refused any statement until he had talked to an attorney but did consent to search of the house. In summary, search of the house turned up marijuana and equipment for cleaning and smoking it, and for making cigarettes. Specifically one Shredded Wheat box held ten plastic bags, each of which contained a quantity of marijuana. It was testified that the plastic bags each held an ounce or 'lid' of marijuana, the 'common amount in which marijuana is sold.'
Defendant's contentions, as recast and summarized are:
1. Entry into a residential rear yard at night, without a warrant, looking for contraband was an unreasonable search prohibited by the Fourth Entry into a residential yard, even if a trespass, and observation of that which is there to be seen for the looking is not within the prohibition of the Fourth Amendment to the United States Constitution. (Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898; Martin v. United States, 5 Cir., 155 F.2d 503, 505; People v. Alexander, 253 A.C.A. 775, 61 Cal.Rptr. 814; People v. Jackson, 198 Cal.App.2d 698, 703-704, 18 Cal.Rptr. 214; People v. Bly, 191 Cal.App.2d 352, 356, 12 Cal.Rptr. 542.) We deem any vegetation in a yard area to be within plain view even if naturally obscured by the foliage of other vegetation. We are unaware of any authority requiring that we hold otherwise because the event occurred at night. On the other hand a nighttime investigation more nearly an invasion of privacy was upheld in People v. King, 234 Cal.App.2d 423, 432-433, 44 Cal.Rptr. 500. The marijuana plants were not the product of an unreasonable search and seizure.
2. The 'mere' presence of marijuana plants in a residential rear yard is not probable cause for arrest and entry into the residence without a warrant and resulted in illegal arrest, search and seizure.
In People v. Lara, 67 A.C. 367, 377, 62 Cal.Rptr. 586, 593, 432 P.2d 202, 209 it is said:
'But information given by an untested informant or arrestee is nevertheless sufficient if it is 'corroborated, in essential respects, by other facts, sources or circumstances.' (Citation.) Such corroboration need not itself amount to reasonable cause to arrest; its only purpose is to provide the element of 'reliability' missing when the police have had no prior expierence [sic] with the informant. Accordingly, it is enough if it gives the officers reasonable grounds to believe the informant is telling the truth, for in this type of case the issue is 'not whether the information obtained by the officers emanated from a reliable source, but whether the officers could reasonably rely upon that information under the circumstances.' (Citations.)'
We point out that Deputy Narron had more information than the 'mere' presence of three growing marijuana plants under cultivation, i. e. he knew defendant had previously been convicted of narcotics offenses. The informant had been corroborated with respect to the presence of the growing plant in an area accessible to a named individual who had previously been a parolee for a narcotics offense. The investigating officer had reasonable cause to believe defendant was in violation of Health and Safety Code, section 11530, the cultivation of marijuana.
3. Entry at night into a residence through an open door, without announcement or consent, violated Penal Code sections 844 and 1531 and resulted in unlawful arrest, search and seizure.
The facts heretofore stated demonstrate in relation to the question posed that we are not concerned with measuring the exigencies of a situation in determining whether an unauthorized breaking may be justified (People v. Maddox, 46 Cal.2d 301, 294 P.2d 6); nor do we deal with the question of opening an unlocked door, without a warrant or announcement, for the purpose of an arrest as described in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828.
The problem is whether the restriction of Penal Code section 844 against breaking and entering for the purpose of making an arrest applies when there is an open doorway into the premises in question. In Ker v. State of California, 374 U.S. 23, 47, 83 S.Ct. 1623, 1636, 10 L.Ed.2d 726 we find it said:
'As early as Semayne's Case, 5 Co.Rep. 91a, 91b, 77 Eng.Rep. 194, 195 (1603), it was declared that '[i]n all cases when the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execu tion In People v. Hamilton, 257 A.C.A. 328, 332, 64 Cal.Rptr. 578, 581, it is said with reference to Penal Code, section 844:
'The section is a codification of the common law on the subject, and leaves the law of arrests where the common law left it.'
thus indicating that the absence of a closed door is no hindrance to the entry of a law enforcement officer otherwise properly engaged. (See also People v. Rosales, supra, 68 A.C. 307, 311, 66 Cal.Rptr. 1, 437 P.2d 489, where People v. Maddox, supra, 46 Cal.2d 301, 306, 294 P.2d 6 is cited as authority for the point that Penal Code section 844 is a codification of the common law. A more precise statement would be that Penal Code section 844 as far as it goes is a codification of the common law. Common sense would suggest that a rule against 'breaking' would not apply where there is nothing to be 'broken'; and this the common law recognized.
Having in mind that
'The common law of England, so for as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.' (Civ.Code, § 22.2.)
it is for the Legislature to expand the restriction of Penal Code section 844. (Penal Code section 1531 is not in question for the reason the facts here are in no sense concerned with the service of a search warrant.) We have noted United States v. Williams, 6 Cir., 351 F.2d 475, 477, in which federal officers armed with a search warrant, in sight of the occupant of the apartment, walked through an open door. After stating that the lawfulness of a search is to be determined by the laws of the state in the absence of controlling federal standards and further observing that no state law or decision was of aid in determining that issue the court held the search was not unreasonable. We hold that the common law and the law of this State is that an entry through an open door is not a breaking open of a door (Pen.Code, § 844) nor 'repugnant to or inconsistent with' the United States Constitution. (Cf. People v. Gamboa, 235 Cal.App.2d 444, 45 Cal.Rptr. 393; Hopper v. United States, 9 Cir., 267 F.2d 904, 908.)
4. The evidence was insufficient as a matter of law to support a finding of possession of marijuana for purposes of sale.
We hold that there was substantial evidence to support a finding by the trial court that defendant was in possession of the packaged marijuana found in his residence for the purposes of sale (People v. Foster, 248 Cal.App.2d 715, 717-718, 56 Cal.Rptr. 872).
The judgment is affirmed.
GERALD BROWN, P. J., and COUGHSIN, J., concur.