Cohen v. Superior Court

Opinion

ALARCON, J. pro tem.

*

Petitioners were charged with possession of marijuana for sale, in violation of section 11530.5 of the Health and Safety Code. They moved, pursuant to section 1538.5 of the Penal Code, to suppress certain evidence secured by the police under the circumstances hereinafter set forth. Their motion was denied, and they seek in this court a writ of mandate to require that the order of denial be vacated. For the reasons hereinafter set forth, we grant the writ with directions that they be afforded a new evidentiary hearing on their motion.

Factual Background

In ruling on the motion to suppress, the trial judge considered the testimony taken at the preliminary hearing pursuant to stipulation of counsel.

Officer James Maloney testified that he received an anonymous telephone call at 11:15 p.m., on February 19, 1969. He was advised that a female Caucasian, about 20 years old with long blond hair, was engaged in prostitution at 3731 Leland, apartment 402. Along with Officers Scrog-gins and Turner, Officer Maloney went to the above address to investigate the informer’s tip. Upon arrival the officers walked to the fourth floor of

[432]

the building. No activity was observed in the hallway. The police did not at this time knock on the door or identify themselves to anyone. A fire escape is located at the south end of the hallway next to apartment 402. The fire escape is made of metal and is attached to the outside of the building. To gain access to the metal fire escape it is necessary to pass through a doorway marked “Exit.” Photographs of the fire escape, introduced into the record, indicates that the escape ladder could be reached by going directly through the exit door to the head of the descent ladder. Officer Maloney stepped out onto the fire escape (see photograph here reproduced [see p. 436,

infra])

and stepped to his left two or three feet, which placed him in front of a window of apartment 402, through which he could observe the inside of that apartment. Looking through the window Officer Maloney observed one of the petitioners seated at a kitchen table. In front of her on the table was a clear plastic bag containing a green leafy substance which appeared to be marijuana. Another person was observed in the living room. Officer Maloney was joined on the fire escape by Officer Scroggins. Officer Scroggins also looked through the window and told Officer Maloney he believed the substance they saw in the apartment was marijuana. Officer Scroggins and Officer Turner went to the door of apartment 402 while Officer Maloney remained at the window. It was agreed that Officer Maloney would whistle if any of the occupants tried to destroy any of the evidence. Officer Maloney heard the words “police officers” at which time a man (later identified as Stephen Michael Cohen) entered the kitchen in a “fast movement.” Officer Maloney whistled because he thought Mr. Cohen “was going to try and destroy the evidence that was on the table.”