People v. Salazar

Opinion

KAUS, P. J.

After his motion to suppress evidence (Pen. Code, § 1538.5, subd. (a)) was denied, defendant entered a plea of guilty to the charge of possession for sale of a barbituric acid derivative, a controlled substance (Health & Saf. Code, § 11378). He appeals from the judgment of conviction (Pen. Code, § 1538.5, subd. (m)).

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Facts

Information received from an untested informant caused Deputy Martinez and other officers to conduct a plain clothes surveillance of defendant Salazar as a suspected dealer in controlled substances. One evening Salazar was observed standing with another person outside of his home. The individual was handing money to Salazar who, as the officers approached, was holding a clear plastic bag which contained several hundred pink capsules. Salazar was counting out individual capsules and placing them in the cupped hand of the apparent buyer. When Deputy Martinez told Salazar not to move and flashed his identification badge, Salazar turned and threw the bag containing the capsules onto a second story balcony which, to the officer’s knowledge, was part of Salazar’s apartment. As the bag flew onto the porch, about 50 pills spilled onto the sidewalk and were recovered.

Salazar was arrested and searched. A key was taken from him. After knocking and receiving no response, Deputy Martinez admitted himself to the apartment. There is no evidence that he announced his purpose before entering. He was met by Salazar’s mother who had been asleep. She then consented to a search of the apartment which yielded the bag on the porch which still contained about 300 pills.

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Discussion

This is, as noted, an appeal after a plea of guilty. Therefore the only issues before us relate to the constitutional validity of the seizure of the 300 pills from the balcony and the reversible nature of an erroneous ruling on that issue.

We have reached no conclusions concerning the legality of the seizure of the 300 pills. The record reveals substantial problems concerning Deputy Martinez’ warrantless entry, the manner in which it was effected and hence, the validity of the mother’s consent. We shall, however, pass these issues in order to explore the question whether there is some limit to the rule announced in