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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Appellant, v. Edward T. SMITH and Sammie A. Blinn, Defendants and Respondents.

Cr. 9550.

Decided: November 30, 1971

Evelle J. Younger, Atty. Gen. of the State of Cal., Robert R. Granucci, Thomas A. Brady, Deputy Attys. Gen., San Francisco, for plaintiff-appellant. George W. Luke, III, San Francisco, for defendants-respondents (By appointment of the Court of Appeal).

Respondents Edward Smith and Sammie Blinn were charged with possession of marijuana in violation of section 11530 of the Health and Safety Code. Their motion to suppress the evidence (Pen.Code § 1538.5) was granted and the information was dismissed. The People appeal from the order dismissing the information.1

Pursuant to stipulation the motion to suppress was submitted or the preliminary hearing transcript. At that hearing two witnesses testified. They were Mrs. Blanch Kirsch and Police Officer James T. Brown.

Mrs. Kirsch testified as follows: She owned a building containing two flats at 521 Gates Street in San Francisco. She lived in the downstairs flat. In December 1969 she rented the upstairs flat to Blinn who moved into the flat with her young daughter who was between 5 and 7 years old. A few days later Smith, Blinn's boyfriend, moved in to live with her.

On the afternoon of February 24, 1970, Mrs. Kirsch had been out shopping and returned to her flat about 4:00 p.m. A few minutes after she arrived home she heard a child screaming and crying. She went outside and saw Blinn's daughter on the steps outside the upstairs flat. The girl walked down the steps to the sidewalk where Mrs. Kirsch was standing. Mrs Kirsch asked the girl what had happened, and the girl said she had hurt her knee ‘when she was dancing.’ Mrs. Kirsch examined the knee but observed no injury. After Mrs. Kirsch and the girl had conversed about five minutes, the girl said she was lonely and did not want to go back to her apartment. Without attempting to ascertain whether the girl's mother was home, Mrs. Kirsch took the child to her downstairs flat and apparently consoled her. She did not ask the girl how long she had been alone.

About an hour after she found the girl, Mrs. Kirsch called the police because she did not want to assume responsibility for the girl. Two police officers came to her flat and she told them she had found the girl crying outside. After the police officers talked to the girl about 10 or 15 minutes, Mrs. Kirsch accompanied one of the officers to the upstairs flat to ascertain whether the girl's mother was home. Mrs. Kirsch did not know whether the girl's mother was at home, but assumed that she was not since the girl had complained of being alone. She did not remember whether the door to Blinn's flat had been left open by the girl, whether it was closed, or whether she used a key to open the door for the police officer. Mrs. Kirsch admitted that she entered Blinn's flat with the police officer without Blinn's consent.

Officer Brown testified as follows: On February 24, 1970, at about 5:30 p.m., he received a call to interview a woman citizen at 521 Gates Street. When he and his partner went to that address they were met by Mrs. Kirsch, her son, and a little girl, approximately six years of age. Brown interviewed Mrs. Kirsch and then talked to the girl approximately 10 or 15 minutes. The officer ascertained that the girl lived in the upstairs flat, that she had been left alone in her flat, that she had apparently fallen down in the apartment and began crying, and that it was then that Mrs. Kirsch found her. Brown wanted to ascertain if the child's mother was at home ‘because it had been approximately * * * an hour from the time that Mrs. Kirsch had found the child until we arrived.’ The officer testified that he asked Mrs. Kirsch to accompany him upstairs. He knocked on the door and stated that it was the police. Receiving no answer, he asked Mrs. Kirsch to let him into the flat. She let him in with a key. Upon entering the flat he called out for Blinn but received no answer. He continued through the flat, his main purpose being to find out if Blinn was there and able to take care of her daughter, and to determine whether Blinn might need help.

Brown looked into the bedroom and observed a Skippy peanut butter jar on the night stand containing what appeared to be marijuana. He also observed a newspaper on the dresser with numerous stems, leaves, and what appeared to be marijuana. He then walked to the rear of the flat, returned to the bedroom and confiscated the jar and newspaper with the marijuana. Although he could not remember, he believed that he and Mrs. Kirsch picked up a jacket for the child, since ‘that was one of the purposes for going upstairs.’ On returning to Mrs. Kirsch's downstairs flat, Brown ascertained that she did not want the responsibility of taking care of the child, so the child was placed in the patrol car and transported to the Youth Guidance Center.

After returning from the Youth Guidance Center, the officers took the contraband to the police station and reported the incident to their sergeant. They then returned to 521 Gates Street where they met Blinn and Smith coming out of the upstairs flat and placed them under arrest. Brown searched Blinn's purse for weapons and found five plastic bags of green vegetable matter, later identified as marijuana. He also made a pat-search of Smith, but found nothing on his person. Later, in the process of booking Smith at the police station, the officers found a plastic vial in one of his pockets. The vial contained marijuana.

On cross-examination, Brown testified as follows: When he interviewed Blinn's daughter in Mrs. Kirsch's flat, she did not appear to be injured and she did not appear upset. Mrs. Kirsch stated that the girl's mother was not home at the time she found the girl. It was his recollection that Mrs. Kirsch told him she had found the girl in the flat at 5:30 p.m. and that she was crying. When he and Mrs. Kirsch went into the upstairs flat neither of them knew whether Blinn was at home.

The parties stipulated that Brown's entry of Blinn's flat was made without a search warrant. They also stipulated that all the green vegetable matter seized in the flat from Blinn's purse and from Smith's person was marijuana.

The People contend that Brown's entry in the upstairs flat and the seizure of the marijuana in plain sight therein was proper. Accordingly, they assert that the search of Blinn's purse was proper as incident to her arrest, and that, since there was probable cause for Smith's arrest based on the finding of the marijuana in the flat, the search of his person while he was being booked was also proper.

Smith and Blinn contend that the prosecution failed to sustain its burden of proving that there was justification for the entry and search of their flat and that there was substantial evidence to support the trial court's finding that the search was unreasonable. Accordingly, they assert that the marijuana found in the flat was obtained by an unlawful search and seizure and that the contraband found in the subsequent searches was the ‘fruit of the poisonous tree.’

In seeking a reversal the People rely on two theories: first, that the entry in the flat was justified under the so-called necessity doctrine as enunciated in People v. Roberts, 47 Cal.2d 374, 303 P.2d 721, and second, that in any event the entry was necessary and reasonable ‘to the accomplishment of a duty unrelated to the prevention or detection of crime.’

Under the Roberts doctrine law enforcement officers may forcibly enter a residence, without a warrant, if they have reasonable cause to believe that such entry is necessary to preserve life or property. (See also Horack v. Superior Court (1970) 3 Cal.3d 720, 725, 91 Cal.Rptr. 569, 478 P.2d 1; People v. Gallegos (1970) 13 Cal.App.3d 239, 242–243, 91 Cal.Rptr. 517; People v. Neth (1970) 5 Cal.App.3d 883, 888, 86 Cal.Rptr. 12; People v. Clark (1968) 262 Cal.App.2d 471, 476, 68 Cal.Rptr. 713.) The People concede that in the present case there was no emergency in the sense of an imminent threat to life or property. In the light of this concession and the circumstances of this case, we conclude that the police officer's entry was not justified under the necessity doctrine. Our inquiry is directed, therefore, to the issue whether the entry was, nevertheless, reasonable and lawful.

Before proceeding to discuss this basic issue we allude to certain fundamental principles applicable to motions to suppress evidence pursuant to Penal Code section 1538.5. We first observe that a proceeding under this section is one in which a full hearing is held on the issues before the superior court sitting as a finder of fact. (People v. Heard, 266 Cal.App.2d 747, 749, 72 Cal.Rptr. 374; People v. Superior Court, 3 Cal.App.3d 476, 488, 83 Cal.Rptr. 771; People v. Superior Court, 9 Cal.App.3d 203, 209, 88 Cal.Rptr. 21.) When the question of the legality of a search and seizure is raised, the defendant makes out a prima facie case when he establishes that private premises were entered or a search made without a search warrant and the burden then rests on the prosecution to prove that the search was reasonable. (Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23; People v. Carson, 4 Cal.App.3d 782, 786, 84 Cal.Rptr. 699; Hewitt v. Superior Court, 5 Cal.App.3d 923, 926, 85 Cal.Rptr. 493.)

‘In reviewing a determination of a trial court on a 1538.5 motion, the function of the reviewing court is to determine whether there was substantial evidence to support the trial court's findings.’ (People v. Superior Court, supra, 9 Cal.App.3d 203, 209, 88 Cal.Rptr. 21, 24; People v. Superior Court, supra, 3 Cal.App.3d 476, 488, 83 Cal.Rptr. 771; People v. Superior Court, 264 Cal.App.2d 165, 166, 70 Cal.Rptr. 362.) ‘This rule, however, is not applicable in cases involving searches and seizures in which the facts bearing on the legality of the search are undisputed and establish as a matter of law that the evidence is or is not admissible. [Citations.]’ (People v. Superior Court, supra, 3 Cal.App.3d at p. 488, 83 Cal.Rptr. at p. 780.)

In the instant case the essential facts bearing on the legality of the search are undisputed. Accordingly, the question whether the physical evidence found in the subject flat is admissible is one of law. (People v. Superior Court, supra, 3 Cal.App.3d 476, 488, 83 Cal.Rptr. 771.) The undisputed facts indicate that Mrs. Kirsch and Officer Brown entered the upstairs flat for the purpose of ascertaining whether Blinn was at home and was able to take care of her daughter and to determine whether Blinn was in need of help. The inconsistencies that appear in the respective testimonies of the two witnesses relate to details which do not pertain to the entry and the motivation for such entry. In this respect we are not unmindful of Mrs. Kirsch's testimony that she found the child on the stairs outside the upstairs flat and Brown's testimony that Mrs. Kirsch told him she had found the child inside the flat. It is clear from the testimony of the witnesses that, based upon the statements of the child, each believed that the child had been left alone in the flat and that they entered the flat to verify that Blinn was not there. Each testified that at the time they sought entry into the upstairs flat they did not know whether Blinn was at home. Brown also testified that he entered the flat to determine whether, if Blinn was in the flat, she was in need of help. He also stated that ‘one of the purposes for going upstairs' was to obtain the child's jacket. This statement is reasonably susceptible of the interpretation that if Blinn was not in the flat the child's jacket would be obtained for the purpose of keeping her warm while she was being cared for.

Adverting to the question whether the entry was reasonable and lawful, we look to the basic test expressed in People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580; as follows: ‘There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances [citations]—and on the total atmosphere of the case. [Citations.]’

We shall first discuss the entry by Mrs. Kirsch. In People v. Plane, 274 Cal.App.2d 1, 3, 78 Cal.Rptr. 528, we recently articulated the principle that, although an apartment landlord generally may not enter a tenant's apartment without the tenant's consent, he may enter where certain emergencies exist with respect to the safety of the apartment building or the landlord's tenants. (See People v. Rightnour, 243 Cal.App.2d 663, 668–669, 52 Cal.Rptr. 654.)2 In effecting such an entry the landlord may enlist the aid of police officers who in such a situation act for the landlord and the tenant. (People v. Plane, supra, 274 Cal.App.2d at p. 4, 78 Cal.Rptr. 528.) In the present case it appears, however, that the entry into the flat was made at Brown's request and that he enlisted the aid of Mrs. Kirsch in effecting such entry. Accordingly, it may be considered that the landlord in this case was acting for the police officer.

Our instant inquiry, then, is whether Brown acted reasonably. Reviewing the totality of the facts and circumstances of the case—the total atmosphere—we conclude that his conduct was reasonable and proper. In reaching this conclusion we observe, initially, that neither the landlady nor the police officer entered to conduct a search and neither one had any knowledge or suspicion that marijuana was present in the flat. Here, the entry was prompted by a concern for the welfare of Blinn's child. It would be unrealistic to conclude that Brown was required to take the child to the Youth Guidance Center, upon the information received from Mrs. Kirsch and the child, without first making an attempt to ascertain whether the child's mother was in the flat. It is equally unrealistic to assume that children of tender years are usually left unattended. As testified to by Brown, it was part of his purpose in entering the flat to ascertain whether the child's mother, if present, was indisposed and in need of help. The entry by Brown and Mrs. Kirsch under these circumstances was reasonable and proper. In sum, it was the type of entry which is not proscribed by the Fourth Amendment but was an entry ‘entirely consistent with a rational line of actions pursued by reasonable people in the ordinary performance of their daily duties while going about their lawful affairs.’ (People v. Rightnour, supra, 243 Cal.App.2d 663, 668–669, 52 Cal.Rptr. 654, 658.)

It follows that the marijuana seized in the flat occupied by Blin and Smith was a lawful seizure, since it is well established that the seizure of evidence in plain view does not constitute an unreasonable search. (Harris v. United States (1968) 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; People v. Roberts, supra, 47 Cal.2d 374, 379, 303 P.2d 721; People v. Superior Court, supra, 3 Cal.App.3d 476, 492, 83 Cal.Rptr. 771; People v. Kampmann (1968) 258 Cal.App.2d 529, 533, 65 Cal.Rptr. 798.) The search or Blinn's purse was proper as incidental to her arrest, and the seizure of the marijuana found therein was therefore lawful. (People v. Ross (1967) 67 Cal.2d 64, 69, 60 Cal.Rptr. 254, 429 P.2d 606.) As for the marijuana found in the vial in Smith's pocket during the booking process, it is well established that where a defendant has been lawfully arrested, a search of his person during the booking process is proper. (People v. Ableman (1970) 7 Cal.App.3d 548, 549, 86 Cal.Rptr. 700; People v. Rogers (1966) 241 Cal.App.2d 384, 388–389, 50 Cal.Rptr. 559.)

The order dismissing the information is reversed.


1.  The People's appeal from the order dismissing the information is proper. (Pen.Code, § 1238, subd. (a)(1), (7); People v. Foster, 274 Cal.App.2d 778, 783, 79 Cal.Rptr. 397; People v. Lingo, 3 Cal.App.3d 661, 663, 83 Cal.Rptr. 755.)

2.  We apprehend that if Mrs. Kirsch had in fact entered the previously because she heard the child crying and believed that the child was unattended, she would be acting reasonably in entering the flat.

MOLINARI, Presiding Justice.

SIMS, and ELKINGTON, JJ., concur.

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