People v. Legg

WHELAN, J.

Defendant Legg (defendant) and a eodefendant, Stowe, were convicted in a nonjury trial of posses

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sion of marijuana. Defendant appeals-from an order granting; him probation. ■

The sole attack on the conviction is a concentration of numerous shafts directed against the search that discovered the contraband received in evidence. We have concluded that the search and seizure were not illegal.

At about 2 o’clock in the morning of December 10, 1966,' Holt, an officer of the Newport Beach police force, and a fellow officer, in a black and white police vehicle, were patrolling an area in the city where one week before there had .'been-half a dozen thefts from and burglaries of.parked automobiles, of which several had been from the trunks of such vehicles. The officers were acting under direction from their superior.

As the police drove through an intersection, Holt saw defendant standing in the roadway of 43rd Street alongside a car parked at the west curb. Forty-third Street runs in a. generally north-south direction, and is intersected by Seashore Avenue, on which the police were traveling, and, one block north of Seashore, by Balboa Avenue.

The police ear traversed the block enclosed by 43rd, 42nd, Seashore and Balboa, and then drove southerly on 43rd Street. Defendant was still in the roadway and was seen by Holt to look in the direction of the police car, then about 100 feet away. Defendant then started to walk northerly, on the double, jumped a' fence 2% to 3 feet high, then ran into a house at 121 43rd Street. ’ The police car came to a halt in the street almost directly in front of the house as defendant entered it. Holt, who had already seen that the trunk of the ear alongside which defendant had been standing was open about 4 inches, alighted from the police ear and went to the door through which defendant had entered the house, and was' shortly joined by the other officer. Holt knocked on the.door ;, almost immediately defendant opened a window near the door and asked what was wanted. Holt answered,

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Police officer. Open the door. I want to talk to you. ’ ’ Defendant opened the door part way and stood at the opening. Holt pushed the door further open as defendant stepped back; Holt, who was familiar with the odor of burning marijuana, immediately smelled marijuana smoke, and formed the opinion, that marijuana wás'being smoked in the house. He then pushed, the door‘fully open; defendant said, ‘.‘I don’t want you "to come in "here”'; Holt, however, walked, into the house. 'There, the odor of marijuana was much stronger; there seemed to be a