People v. Dees

Opinion

AULT, J.

Defendant Claude Leal Dees appeals from the judgment of conviction (order granting probation) entered after he pleaded guilty to possession of narcotics (Health & Saf. Code, § 11500). At the time he entered his plea, a second count charging possession of narcotic paraphernalia was dismissed, and an allegation of a prior conviction was stricken. On appeal, the defendant seeks a review of the denial of his

[854]

motion to suppress evidence under Penal Code section 1538.5 which preceded his plea.

1

At the hearing on the motion to suppress evidence, the People stipulated the police officers who arrested Dees entered the apartment in which he was arrested without complying with Penal Code section 844 and had no search warrant. Also by stipulation, the motion was heard and determined on the testimony taken at Dees’ preliminary hearing together with the testimony at the preliminary hearing in the related case of People v. Austin.

Insofar as pertinent to this appeal, the evidence at the two preliminary hearings shows: On March 13, 1970, at approximately 1:45 p.m., Parole Officer Charles Pasquel (Paschal-?), accompanied by San Diego Police Officers Leigh Emmerson and Clifford Collins, went to apartment “J” at 2536 “B” Street, San Diego. Their purpose was to arrest the tenant, Lament Rollins, a parole violator. Pasquel knocked on the door and no one answered. He then opened the door, entered, and called out the name “Lament” several times. Receiving no answer, he asked the police officers to enter the apartment. Investigation showed no one to be home. The officers observed a broken window in the front door and spattered blood throughout the apartment. At Pasquel’s request, the apartment was searched. A bag of marijuana and several narcotic injection kits were found. The officers waited, hoping Rollins would return to the apartment. At approximately 3 p.m. they left, leaving word with the manager to call them if anyone returned to the apartment. They took the items of contraband found in the search with them.

At approximately 4:30 that afternoon the manager telephoned the police and stated three persons were in the apartment. The call did not reveal whether parolee Rollins was one of the three. Pasquel, accompanied by four police officers, including Emmerson and Collins, returned to the apartment. The door was ajar, and Pasquel, followed by the officers, entered without complying with Penal Code section 844.