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

The PEOPLE of the State of California, Plaintiff and Appellant, v. Frank Michael BLOCK, Defendant and Respondent.

Cr. 18619.

Decided: March 19, 1971

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty. Los Angeles County, Harry Wood, Head, Appellate Division, Donald J. Kaplan, Deputy Dist. Atty., for plaintiff and appellant. Howard E. Lowe and Dennis Shapiro, Shapiro & Lowe, by Dennis Shapiro, Beverly Hills, for defendant and respondent.

Pursuant to Penal Code, section 1238, subdivision 1, the People appeal from an order setting aside the information filed herein after the granting of respondent's motion made under Penal Code, section 995. The information charged respondent with felonious possession of marijuana (Health & Saf. Code, § 11530; Count I) and with the misdemeanor of being in a place where narcotics are being smoked with knowledge that such activity is occurring (Health & Saf. Code, § 11556; Count II).

Appellant contends that ‘Under the circumstances it was proper for the [arresting] officer to look for other suspects on the second floor of respondent's house.’ The superior court resolved the issue in favor of respondent by extending the holding in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, to preclude arresting officers from looking for additional suspects, as well as from searching for evidence or contraband, in any portion of a residence not under the immediate control of the party or parties first apprehended.1 We have concluded that such ruling was erroneous and, accordingly that the order appealed from must be reversed.

There is, of course, no dispute as to the determinative facts adduced at respondent's preliminary examination: At approximately 10:30 p.m. on the night of March 14, 1970, Los Angeles Police Officers Troy E. Galloway and H. N. Marco were notified by police radio that there was a possible narcotics suspect at a specified address. They proceeded to that location and knocked on the door. Respondent opened the door and the officers immediately detected the odor of burning marijuana emanating from inside the house. Through the open door Officer Galloway could see three persons seated in the living room and Officer Marco could see one. Respondent was asked if he lived at the house and he replied ‘Yes.’ He was asked if he had called the police and he said ‘No.’

Entering the residence Officer Galloway observed a smoking marijuana roach in a metal clip on a coffee table in the living room. He also saw two pipes on the table. One of these was warm and appeared to contain marijuana debris. Four persons, in addition to respondent, were arrested in the living room. Officer Marco went into an adjacent dining area, arrested two other persons there, and brought them into the living room.

The seven suspects, some having the odor of marijuana upon their breath, were left in Officer Marco's custody while Officer Galloway went upstairs. He did so ‘because of the number of the defendants in the house, I believed there was a possibility of more defendants' and ‘to see if there were any other people in the house.’

On the second floor of the residence he looked into one bedroom, a bathroom, and then a second bedroom. The light in this second bedroom was off and the door was partially open. He turned the light on and looked inside. Although he did not see any persons, he did see a clear plastic vial containing what appeared to be marijuana. He also saw an open jewelry box and, on looking into it, discovered pieces of tin foil, a plastic bag, and a match box. He opened these items and found that they too contained marijuana.

Although not required so to do since there was no forcible or unannounced entry effected herein (Mann v. Superior Court, 3 Cal.3d 1, 9, 88 Cal.Rptr. 380, 472 P.2d 468), both the committing magistrate and the superior court found adequate compliance with the so-called ‘knock-and-notice’ requirements of Penal Code, section 844. The magistrate also found that ‘Chimel versus California does not apply. The facts being entirely different in the Chimel case * * *’

In ruling on respondent's motion under Penal Code, section 995, however, the superior court, as previously indicated, held that the marijuana found in the upstairs bedroom was discovered as a result of activity impermissible under its extension of the holding in Chimel v. California, supra. Although undoubtedly unknown to the trial court its intepretation of Chimel had been rejected in Guevara v. Superior Court, 7 Cal.App.3d 531, 534, 86 Cal.Rptr. 657, filed only four days prior to its ruling in the present proceeding. The court in Guevara held that officers believing that there may be confederates of an arrestee upon the premises may at least walk into an adjoining room to look for them. The court stated, page 535, 86 Cal.Rptr. at page 659:

‘Having arrested defendant, it was not unreasonable for them [the arresting officers] to walk through the house to see if others were there and, if found, at least to interrogate them. To walk through an open doorway, in pursuit of such an investigation, is not the kind of excessive invasion of privacy that Chimel is designed to prevent; it is merely basic police investigation of information received.’

The instant case, of course, presents far stronger support for the officers' decision to locate all occupants of the residence than did the facts in Guevara for here the investigation was not of mere ‘information received’, but of several marijuana offenses actively being committed in the officers' presence by multiple confederates. Unlike the facts of the typical case to which the holding in Chimel was directed, these officers had not gone to a house to make an arrest for some past offense and, upon gaining entry, to conduct whatever ‘incidental search’ for incriminating evidence they might deem reasonable. On the contrary, lacking a guest list, the officers were merely attempting to round up all of the participants in an activity that the superior court aptly characterized as a ‘pot party.’

In a recent pre-Chimel decision, People v. Marshall, 69 Cal.2d 51, 56, 69 Cal.Rptr. 585, 588, 442 P.2d 665, 668, our Supreme Court restated the familiar rule that ‘[d]uring a lawful search of premises for persons believed to be in hiding, police officers may seize contraband evidence ‘in plain sight’. [Citations.] Under such circumstances there is, in fact, no search for evidence. [Citations.]'

The court in Marshall cited, inter alia, Ker v. California, 374 U.S. 23, 43, 83 S.Ct. 1623, 10 L.Ed.2d 726, in which the United States Supreme Court had upheld an exploration factually indistinguishable from that approved in Guevara, supra. The Ker decision, in turn, was cited, without any indication of disapproval, in Chimel.

In sum, we find no legal precedent that lends support to the ruling now under review. Moreover, the traditional ‘search warrant’ is not an instrumentality designed to regulate an officer's ‘search’ for the ‘bodies' of other persons who may be present upon the scene of a witnessed criminal activity. Assuming that the officers in the instant case might possibly have been able to obtain ‘John Doe’ arrest warrants authorizing them to seek out other potential confederates of the several parties already in custody, either for their own protection2 or as possible co-conspirators, requiring them so to do would render apposite the observations of Justice Pierce in People v. Koelzer, 222 Cal.App.2d 20, 27–28, 34 Cal.Rptr. 718, 722:

‘Our zeal to fend off encroachments upon the right of privacy must be tempered by remembrance that ours is a government of laws to preserve which we require law enforcement officers—live ones. Without becoming a police state, we may still protect the policeman's status. * * * Such quixotisms of police procedure [as here suggested to be mandatory] befit a Gilbert and Sullivan operetta libretto, not the serious business of real-life police investigation.’

The improper use of an arrest in a house or other place as a ‘pretext’ or ‘subterfuge’ for a search of the premises was a problem well-recognized and a practice forbidden by California decisions long before Chimel. (See People v. Marshall, supra; People v. Haven, 59 Cal.2d 713, 719, 31 Cal.Rptr. 47, 381 P.2d 927.)

In this instance, however, the record fully supports the committing magistrate's determination that the officers' stated reasons for their conduct following the rounding-up of respondent and some of his guests were not ‘pretexts' nor ‘subterfuges' designed to justify what otherwise might be deemed an illegal, exploratory search for evidence.

The order under review is reversed.


1.  Initially the trial court's remarks herein appeared to demonstrate a misconception concerning the binding effect of the committing magistrate's exercise of its exclusive power to determine the credibility of witnesses. Later, however, when both the prosecution and defense counsel indicated their disagreement with this view, the court announced that even accepting the magistrate's decision to credit the testimony of the officers herein, nevertheless, he would hold that their actions were improper. Acknowledging its awareness that the United States Supreme Court in Chimel was not considering the situation here presented and, therefore, its ruling therein was not directly applicable here, the court stated: ‘Well, I have just made new law.’

2.  A consideration that should not be dependent upon an officer's express judicial confession of fear.

HERNDON, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.