People v. Wilcox

co-defendants were charged with violations of Health and Safety Code section 11530 (possession of marijuana), section 11913 (furnishing an amphetamine to a minor), and section 11910 (possession of LSD). Under Uenal Code section 1538.5, appellant moved to suppress certain evidence which formed the basis of the intended prosecution, asserting an unlawful search and seizure. When the motion was denied, appellant withdrew an earlier plea of not guilty and pleaded guilty to violation of Health and Safety Code section 11557. The other counts were dismissed, appellant was admitted to probation, and by this appeal Wilcox presents the question whether his motion to suppress evidence under Penal Code section 1538.5 was correctly denied.

Appellant was arrested, and the contraband which was the subject of the motion to- suppress evidence was seized, in the San Jose residence of Dr. and Mrs. Bortz. Before goihg away on vacation, Dr. Bortz had filed a request with the police department to make a periodic “vacation check” to protect the property from vandalism or unauthorized entry. The request for vacation check contained notations that Dr. Bortz ’ attorney, Mr. Hayden, was to be contacted if any problem relating to the property emerged, and that Richard Bevins, the stepson of Dr. Bortz, was not to be allowed in the house unless accompanied by his grandmother.

On the day in question,, an officer who visited the -property pursuant to the request just mentioned noticed a “hot-rod-

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like car” parked in front. Finding the front door of the house locked," he opened the garage dooras he did so young Bevins came out of the front door of the house/ identified himself, and-questioned the officer’s authority. The officer saw another person inside the garage. A third juvenile in the side yard next to the house was waving his arms about and pointing up to the sky; observing that this person appeared to be under the influence of alcohol or a drug, the officer caused him to return to the bouse. After calling by radio for help, the officer talked to a neighbor who stated that there had been a number of late-night visitors at the house during the preceding week and. that Bevins was indeed the son of the owners of the house.

The officer entered the house; finding four more persons (including appellant) inside, he arrested all of them for trespass. The officer called attorney Hayden, and talked around the house while awaiting his arrival. He observed drinks and suitcases scattered throughout the rooms. After attorney Hayden arrived, the officer saw on the floor a label from a package of polyethylene envelopes which suggested to him the presence of narcotics.. Hayden suggested a search, declaring, “You have my permission to search. ’ ’