People v. Brown

Opinion

EVANS, J.

Defendant, charged with cultivating marijuana (Health & Saf. Code, § 11358) and possession of marijuana for sale (Health & Saf. Code, § 11359), pled not guilty and moved to dismiss the information (Pen. Code, § 995) and suppress the evidence (Pen. Code, § 1538.5). Both motions were denied. He then entered a negotiated plea of guilty to the cultivation charge, and the possession charge was dismissed. He appeals

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pursuant to Penal Code section 1538.5, subdivision (m), contending the trial court erred in denying his motion to suppress. We shall affirm.

On June 30, 1982, Deputy Sheriff Clifford Schrader obtained a warrant to search for marijuana plants on the property of Richard Farrell.

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Approximately six weeks earlier, Will Ott, who lived in the vicinity of Farrell’s property, informed Schrader he had seen marijuana plants approximately two inches high growing on Farrell’s land. Ott had noticed the plants when he moved an irrigation pipe lying across the road which led to the plants. On the date the warrant was obtained, Schrader and two other deputies entered the property and found approximately 100 marijuana plants but seized only 1; they left the others, hoping to apprehend the person or persons cultivating them. On July 3, pursuant to the same warrant, Schrader reentered the property in an attempt to apprehend the cultivator. No plants were seized on that date. The warrant was returned to the court on July 7, 1982.

On July 7, 1982, Schrader prepared another affidavit relating his observations of the property made on July 3 and June 30, and obtained a second search warrant. Schrader’s stated intention was to observe the property until he saw someone on it, then enter with the warrant and make an arrest. He

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entered the property on July 17, but did not seize additional plants, or make an arrest. A third warrant was obtained on July 21, 1982. The affidavit supporting the warrant indicated Schrader had observed the property without entering it several times subsequent to the issuance of the second warrant. The latter warrant was executed July 28, 1982; the defendant was arrested and the plants seized at that time.