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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert EDWARDS and Jennifer A. Edwards, Defendants and Appellants.

Cr. 3136.

Decided: September 16, 1968

Howard E. Beckler, Hollywood, for defendants and appellants. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Gen., and Thomas Kallay, Deputy Atty. Gen., for plaintiff and respondent.


Following waiver of a jury trial and submission of the case on the testimony at the preliminary hearing, defendants were found guilty of possession of marijuana for sale (Health & Safety Code, § 11530.5) and possession of dangerous drugs for sale (Health & Safety Code, § 11911). Subsequent motions for a new trial were denied, probation was denied and defendants were sentenced to state prison pursuant to Penal Code, § 1202b, the court reserving jurisdiction under Penal Code, § 1168, to recall the commitment. Defendants appeal from the judgments.

Sufficiency of the evidence to sustain the convictions is not raised on this appeal, but a brief review of the facts is proper to understand the contentions which defendants advance in this court.

On January 13, 1967, at approximately 9:15 p.m., Detective Hern of the Riverside County Sheriff's Office assigned to the vice and narcotics detail, spoke with a Mr. Hansen who resided at 403 Transit Street, Highgrove, Riverside County. Mr. Hansen advised the officer that during the previous week he was feeding the dogs in the back porch area at 409 Transit, the residence adjacent to his own house. At that time, he observed a large plastic bag containing ten or twelve small bale-type packages on the back porch. The packages were approximately twelve inches in length, six inches in width and two inches thick. The informant told the officer that one of the packages was torn and appeared to contain a dark green vegetable substance, similar to alfalfa with a small ‘funny type seed,’ but the substance did not smell like alfalfa.

After receiving this information, Detective Hern, accompanied by three other officers, walked along some railroad tracks which were to the rear of the houses facing Transit Street and entered an ‘open backyard area’ at the rear of the residence at 409 Transit Street. Hern and another officer then approached three trash receptacles located two or three feet from the back porch door and proceeded to examine the contents. In one of the cans, under some refuse, Hern discovered a clear, heavy plastic bag containing what appeared to be marijuana seeds and debris. The bag was not visible from the top of the can. When later asked about the amount of material found in the bag, the officer stated it was approximately 600 milligrams, ‘possibly enough to roll a couple of marijuana cigarettes or more.’ He also found a prescription bottle with the name Jennifer on it, envelopes and other trash stating addresses and names of the residents at 409 Transit Street and a piece of reddish paper, backed by masking tape with some green vegetable debris adhering to it. The officer had on other occasions observed similar wrappings on packages containing kilo bricks of marijuana.

Detective Hern then returned to the Riverside County Sheriff's Office to examine the discovered items more closely. At approximately 12:30 a.m., he returned with other officers to the Transit Street area, parking three-quarters of a block from the residence at 409. At no time during the course of these events was a search or arrest warrant obtained.

At 4:50 a.m. that same morning, Detective Hern observed a vehicle, previously described as belonging to defendant Robert Edwards, park in the front yard area of the residence. Hern and a fellow officer then walked to the front door while two other officers covered the back entrance. Hern knocked several times and a male voice from an upper story of the residence asked, ‘Who is it? What do you want?’ Hern stated, ‘Bobby?’ The male replied, ‘Yes. What do you want?’ The officer then said, ‘Come on down. I want to talk to you.’ Through a glass section in the door the officers observed defendant Robert cross the dining room area, and approach the front door. Defendant then asked, ‘What do you want?’ The detective replied, ‘I want to talk to you.’ Robert asked, ‘Who are you?’ Hern, in a loud voice, identified himself as a sheiff's officer and told defendant to open the door. Defendant turned and hurried from the living room toward the dining room area. The officer yelled again, forced open the door, and apprehended defendant in the dining room next to a stairwell. The two officers at the rear door entered in response to Detective Hern's knocks and loud call to open the front door. Hern remained with defendant Robert while defendant Jennifer was brought down from the upstairs portion of the house.

At this point the officer further identified himself by exhibiting his badge and identification card and advised both defendants that they were under arrest for possession of the marijuana found in the trash receptacle at the rear of the residence. Defendants were then advised of their constitutional rights and both indicated they did not wish to make a statement. Detective Hern asked if he could search the house. Defendant Jennifer asked if he had a search warrant. When the officer replied in the negative, defendant Jennifer stated that the officers would not be permitted to search the house. However, Detective Hern informed the defendants that he would search incident to the arrest for possession of marijuana.

In the course of the search the officers uncovered approximately 24 pounds of marijuana, 3/4 of a pound of lysergic acid diethylamide (LSD) and ‘other tablets and drugs.’ Only Detective Hern testified in the preliminary hearing.

On appeal, defendants first contend that the evidence introduced against them was derived as a consequence of an unreasonable search and seizure and therefore should have been repressed upon their timely objection. It is urged that the officers' en try into the backyard area of defendants' residence and the search of the trash receptacles violated defendants' constitutional rights.

The Fourth Amendment to the United States Constitution and article I, section 19 of the California Constitution guarantee the ‘right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches * * *.’ In Hester v. United States 265 U.S. 57, 44 S.Ct 445, 68 L.Ed. 898, officers recovered the critical evidence on defendant's land near his house. In concluding that the evidence was not secured as a result of an illegal search and seizure, the court stated at p. 59, 44 S.Ct. at p. 446:

‘* * * the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law.'

California courts, following the rule of Hester v. United States, supra, have consistently held that a warrantless search made upon private property which surrounds a house is not necessarily an unreasonable one. (People v. Bradley, 264 A.C.A. 270, 273, 70 Cal.Rptr. 339; People v. Lees, 257 A.C.A. 401, 406–407, 64 Cal.Rptr. 888; People v. Alexander, 253 Cal.App.2d 691, 696–700, 61 Cal.Rptr. 814; People v. Shields, 232 Cal.App.2d 716, 719–721, 43 Cal.Rptr. 188; People v. Jackson, 198 Cal.App.2d 698, 703, 704, 18 Cal.Rptr. 214; People v. Bly, 191 Cal.App.2d 352, 356–357, 12 Cal.Rptr. 542.) Moreover, rubbish piles and trash cans have not been deemed proper subjects of constitutional protection. (People v. Jackson, supra; People v. Bly, supra.)

Defendants recognize the above rules but urge that they have ‘no further validity or application’ because of the recent decision of the Supreme Court of the United States in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. In Katz the court reversed a conviction for interstate transmission of wagering information because of the admission in evidence of defendant's telephone conversations, overheard by federal agents who attached an electronic listening device to the public telephone booth from which defendant placed his calls. Speaking for the majority, Mr. Justice Stewart reasoned:

‘* * * the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a ‘constitutionally protected area.’ The Government has maintained with equal vigor that it was not. But this effort to decide whether or not a given ‘area,’ viewed in the abstract, is ‘constitutionally protected’ deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protecton. [Citations.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. [Citations]'

Relying on the above quoted language from Katz, defendants herein argue that the record is devoid of evidence that the rear yard and trash cans were ‘knowingly exposed to the public’ and, therefore, it should be held by this court that the search was unlawful. The controlling language related to the facts before us, however, is the Supreme Court's statement that:

‘* * * ‘The Fourth Amendment protects people, not places.’ The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a ‘place.’ My understanding of the rule that has emerged from prior decisions is that there is a two-fold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited. On the other hand, coversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.' (Katz v. United States, supra, 88 S.Ct. 507, 516 [concurring opinion of Mr. Justice Harlan].)

Rather than eliminating the ‘open field’ doctrine of Hester, as defendants herein urge, the Supreme Court in Katz was seeking to clarify the rule that places normally classed as public could, in a particular use, become proper subjects of Fourth Amendment protection, depending upon the subjective expectation of the person making use of the place and the willingness of society to recognize the privacy. (See generally Britt v. Superior Court, 58 Cal.2d 469, 472, 24 Cal.Rptr. 849, 374 P.2d 817; Bielicki v. Superior Court, 57 Cal.2d 602, 609, 21 Cal.Rptr. 552, 371 P.2d 288.)

While several of the earlier cited California cases involved discovery of objects which were in ‘plain view’ (see People v. Bradley, supra, 264 A.C.A. 270, 273, 70 Cal.Rptr. 339; People v. Lees, supra, 257 A.C.A. 401, 64 Cal.Rptr. 888; People v. Shields, supra, 232 Cal.App.2d 716, 43 Cal. Rptr. 188; People v. Jackson, supra, 198 Cal.App.2d 698, 18 Cal.Rptr. 214; People v. Bly, supra, 191 Cal.App.2d 352, 12 Cal. Rptr. 542), therefore, falling within the first phase of the test, i. e., no actual (subjective) expectation of privacy, at least one recent California case was decided on the basis of reasonableness. In People v. Alexander, supra, 253 Cal.App.2d 691, 61 Cal.Rptr. 814, the officers discovered contraband in the chimney of defendant's backyard barbecue. The court, in affirming the conviction, observed at p. 700, 61 Cal.Rptr. at p. 819:

‘* * * honest people have no need for privacy in such chimneys. Although a barbecue chimney is a part of residential (as distinguished from business) land use, it is not the kind of place where privacy is usually thought to be important. No one would ever think of storing anything in such a place unless he was hiding contraband of some sort. If it is permissible for the police to enter and inspect a residential back yard at all (and the decisions say it is) the honest householder suffers no additional inconvenience or indignity when the officer thrusts his arm into the soot of the barbecue.’

Thus in the Alexander case, although not stated as such, the court recognized the rule of privacy as a subjective matter, but applied the second phase of the rule that the expectation of privacy of the barbecue chimney was not that which society was prepared to recognize as reasonable.

Applying the language of Katz to the case at bench, it cannot be said that society is prepared to extend the expectation of privacy to the discarded contents of garbage cans particularly when where is projected the common knowledge of their eventual disposition. Moreover, the cans herein, apparently without lids, were located to the rear of the back porch area in a yard described by Detective Hern as ‘open.’ In such circumstances it can hardly be said that the discarded papers, cans and other refuse were intended to be protected against search.

In Wattenburg v. United States, 9 Cir., 388 F.2d 853, a case also relied upon by defendants, the Court of Appeals, Ninth Circuit, held that the search by federal agents of a tree stockpile located ‘twenty to thirty-five feet’ from a resort motel owned by defendant's son and operated by defendant was invalid as being within the ‘curtilage’ of the motel as distinguished from the ‘open fields.’ After reaching this conclusion, the court went on to recognize the decision in Katz and noted at p. 857:

‘We wish to add, however, that it seems to us a more appropriate test [than the ‘open field test’ of Hester] in determin ing if a search and seizure adjacent to a house is constitutionally forbidden is whether it constitutes an intrusion upon what the resident seeks to preserve as private even in an area which, although adjacent to his home, is accessible to the public.'

Then, at p. 858, the court stated:

‘There can be no doubt that Wattenburg, in placing the stockpile this close to his place of residence, sought to protect it from this kind of governmental intrusion.’

Defendants' reliance on Wattenburg in the case at bench is misplaced. As pointed out above, state courts of California have consistenly applied the ‘open fields' doctrine of Hester to enclosed or unenclosed grounds surrounding a house, a practice California authorities have been expressly permitted to pursue. (See Ker v. State of California, 374 U.S. 23, 34, 83 S.Ct. 1623, 10 L.Ed.2d 726.) Moreover, the court in Wattenburg concluded the stockpile was part of the curtilage rather than in the ‘open fields.’ The interpretation and application of the Katz case being unnecessary to the decision were mere dicta. Finally, even if the discussion quoted above was not dicta, decisions of lower federal courts on federal questions are merely persuasive but are not binding upon us. (Rohr Aircraft Corp. v. County of San Diego, 51 Cal.2d 759, 764, 336 P.2d 521, reversed without comment on this point in 362 U.S. 628, 80 S.Ct. 1050, 4 L.Ed.2d 1002; Francosteel Corp. v. N. V. Nederlandsch Amerikaansche, 249 Cal.App.2d 880, 892, 57 Cal.Rptr. 867; People v. Estrada, 234 Cal.App.2d 136, 145, 44 Cal.Rptr. 165, 11 A.L.R.3d 1307.)

Defendants next contend that their arrest was void because the officers lacked probable cause. More specifically, it is urged that the legality of the arrest should be tested by inquiring as to whether defendants had dominion or control over the incriminating material found in the trash can at the time it was discovered by Detective Hern.

A peace officer may arrest a person without warrant, ‘Whenever he has reasonable cause to believe that the person to be arrested has committed a felony, * * *.’ (Penal Code, § 836, subdiv. 3.) To constitute reasonable or probable cause to arrest, a state of facts must be known to the officer that would lead a man of ordinary care and prudence to believe, or entertain a strong suspicion, that the person arrested is guilty. (People v. Hillery, 65 Cal.2d 795, 803, 56 Cal.Rptr. 280, 423 P.2d 208, and cases cited.) The question of probable cause to justify an arrest without a warrant must be tested by the facts which the record shows were known to the officer at the time of the arrest. (People v. Lara, 67 A.C. 367, 376, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Talley, 65 Cal.2d 830, 835, 56 Cal.Rptr. 492, 423 P.2d 564.) After a complete review of the record herein we have concluded that the trial court's finding that sufficient evidence of probable cause existed is amply justified. Detective Hern received information from Mr. Hansen that defendants had a large plastic bag containing packages on their back porch which contained a green leafy material wrapped in brick form. One of the packages was torn revealing to Mr. Hansen a dark green vegetable substance similar to alfalfa. Information supplied by a citizen acting openly to aid law enforcement is classified as reliable. (People v. Waller, 260 A.C.A. 139, 145, 67 Cal.Rptr. 8; People v. Gardner, 252 Cal.App.2d 320, 325, 60 Cal.Rptr. 321 and cases collected therein.) Detective Hern then uncovered in the trash can behind the house the plastic bag containing seeds and debris and a torn portion of one of the brick wrappers with some marijuana still clinging to it.

When defendants arrived at home, the officer attempted to interview them as possible suspects or witnesses. Under the circumstances, such conduct was not unreasonable. (People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 855; People v. Macknic, 257 A.C.A. 408, 411, 64 Cal.Rptr. 833.) Defendant Robert's response heard by the officer and the observed movements could reasonably be viewed as either an attempt to flee or an effort to destroy contraband. Such furtive or suspicious conduct not only served to substantiate the information provided by the neighbor (People v. Talley, supra, 65 Cal.2d 830, 836, 56 Cal.Rptr. 492, 423 P.2d 564; Willson v. Superior Court, 46 Cal.2d 291, 295, 294 P.2d 36), but also justified defendants' immediate arrest. (People v. Webb, 66 Cal.2d 107, 112, 56, Cal.Rptr. 902, 424 P.2d 342; People v. Cruz, 61 Cal.2d 861, 865, 40 Cal.Rptr. 841, 395 P.2d 889.) Defendants' argument regarding the lack of dominion and control over the contraband found in the trash can has no merit on the issue of probable cause to arrest.

Defendants argue that Detective Hern's own stated basis for the arrest (possession of the marijuana found in the trash cans) is inadequate to support the arrest. In effect, it is argued that the issue of probable cause is to be restricted to the officer's stated basis for the arrest rather than an objective view of all the facts. Defendants argue that because the marijuana in the can was ‘abandoned’ it could not provide probable cause to arrest for current possession. It is apparent that this argument confuses probable cause to arrest and the question of sufficiency of the evidence to sustain a conviction. Probable cause for an arrest is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. (People v. Hillery, supra, 65 Cal.2d 795, 803, 56 Cal.Rptr. 280, 423 P.2d 208; People v. Cockrell, 63 Cal.2d 659, 665, 47 Cal.Rptr. 788, 408 P.2d 116; People v. Stewart, 62 Cal.2d 571, 577–578, 43 Cal.Rptr. 201, 400 P.2d 97.) The court and not the officer must make the determination whether the officer's belief is based on reasonable cause. The test in such case is not whether the evidence upon which the officer made the arrest is sufficient to convict but only whether the prisoner should stand trial. (People v. Ingle, 53 Cal.2d 407, 413, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Fischer, 49 Cal.2d 442, 446, 317 P.2d 967.)

Defendants urge that the arrest was a mere pretext for the subsequent search of their residence. However, since it has been determined that the arrest was valid, the subsequent search was clearly permissible as incident to the lawful arrest. (People v. Cockrell, supra, 63 Cal.2d 659, 667, 47 Cal.Rptr. 788, 408 P.2d 116.) The fact that in addition to other marijuana, dangerous drugs were also found in the course of the search does not affect its legality. (People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834.) Further, since the search was incident to a lawful arrest, the failure to obtain a search warrant lacks significance since a warrant is not required. (United States v. Rabinowitz, 339 U.S. 56, 65–66, 70 S.Ct. 430, 94 L.Ed. 653.)

Judgments affirmed.

McCABE, Presiding Justice.

KERRIGAN and TAMURA, JJ., concur.

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