People v. Thornton

Opinion

BROWN (Gerald), P. J.

The grand jury indicted Michael John Thornton, Ronald Lee Walker, Robert Michael Turner and Randal Lee Pelton for possessing marijuana (Health & Saf. Code, § 11530) and for knowingly visiting a place where people were unlawfully smoking and using narcotics (Health & Saf. Code, § 11556). The district attorney had previously filed an information against the defendants charging the same offenses plus charges of contributing to the delinquency of a minor. The magistrate at the preliminary examination on the information did not bind defendants over for trial. The district attorney then sought and secured the indictment.

Defendants moved to set aside the indictment (Pen. Code, § 995) and to suppress the marijuana evidence (Pen. Code, § 1538.5), The motion to set aside the indictment was submitted on the transcript of the grand jury proceedings and denied. The motion to suppress evidence was submitted on the transcript of the preliminary examination in which the magistrate did not bind the case over, as well as the transcript of the grand jury proceedings. The court ruled the search which disclosed marijuana in the house where defendants were situated was an illegal search because the searching officer did not comply with the knock and announce requirements of Penal Code section 844. The court dismissed the action in the furtherance of justice as authorized by Penal Code section 1385. This appeal is by the People from the order of dismissal. The issue on appeal is whether substantial evidence supports the court’s determination.

On February 27, 1969, a Mr. Fleming told San Diego Police Patrolman Zerbe he knew where Fleming’s runaway 17-year-old stepson, Wayne

[744]

Proctor, was located. Fleming took Officer Zerbe to a house located just off the Miramar Naval Air Station grounds.

Officer Zerbe knocked on the door of the house. Tommy Ray Davis (who was indicted along with these defendants, but was not a party to the motions below and thus not involved in this appeal) opened the door slightly, leaving a night chain on. Officer Zerbe said he was “engulfed by smoke that resembled burning marijuana.” Zerbe asked Davis if the house belonged to him. Davis said it did. Zerbe asked if Wayne Proctor was inside; Davis said he was. Zerbe told Davis to open the door. Davis closed the door, unlatched the chain, then opened the door. Zerbe entered the house, followed Wayne Proctor out through the back door, arrested him in the back yard and put him in Zerbe’s police car.