People v. Frazier

Opinion

KAUS, P. J.

Defendant was charged with violations of Health and Safety Code sections 11351 (possession of heroin for purpose of sale) and 11357 (possession of marijuana). A motion to suppress evidence seized at the time of defendant’s arrest was denied with respect to “plain view” evidence, but granted as far as evidence not in plain view is concerned.

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The case was then submitted, mainly on the transcript of the preliminary hearing. Defendant was found guilty of simple possession of heroin and of possession of marijuana.

Facts

On November 8, 1975, at about 8 p.m., Officers Taylor and Parks were flagged down by a lady who told them “that she had heard what sounded to her to be screams coming from” what later turned out to be defendant’s residence. The officers approached defendant’s house with the intention of ascertaining if anyone was in danger or if any crime was being committed. No unusual noises were heard. They knocked on the door. Defendant opened the door. The officers told him what they had been told about screams. Defendant said there was no one in the house and he had heard no screams. Taylor then asked for permission to “come in and check to make sure there is no one in here in any danger or any crime is being committed.” According to Taylor defendant then said: “Come on in.” Nevertheless, as he said so, he turned and walked rapidly toward, a bedroom on the south side of the house. According to defendant he said: “Okay. Just a minute.” He admitted that he then turned and went toward the bedroom. As to his speed, defendant

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testified at first that he moved “[a]s fast as I could walk,” which he later changed to “I walked normally like I walk anyway.” Defendant limped. Defendant admitted that he went to the bedroom “to get rid of the stuff I had on my bed.”

While defendant was talking to the officers at the door, “a couple of times he turned and looked toward the bedroom and appeared to be nervous. His speech was—he was stuttering a bit as he answered the questions,. . .”

In any event, the officers followed defendant to the bedroom where defendant lunged for an object on the bed. Not knowing the nature of the object, Taylor drew his service revolver and told defendant not-to move. As he pulled defendant back, he saw a small pile of brown powder and seven or eight multi-colored wrapped balloons. One of the balloons was attached to a funnel. The officer concluded that the substance was heroin and placed defendant under arrest. Defendant was removed to the living room. Taylor testified, but defendant denied, that after the arrest defendant consented to a search of the premises. Taylor re-entered the bedroom. This time he noticed an open cigar box near the head of the bed. It contained marijuana. A brown paper bag was removed from the top shelf of the bedroom closet. It contained in excess of $2,200 in cash. A hypodermic kit was recovered from the bathroom.