People v. Lyon

GRIFFIN, P. J.

Appellant and his codefendant were each charged with and convicted by the court sitting without a jury of the crime of possession of marijuana, in violation of Health and Safety Code, section 11530. Appellant admitted a similar prior offense in 1954. Defendant Lyon was committed to state prison and he appealed. The only question raised on this appeal is the claim of unreasonable search and seizure, and that the evidence was received in violation of the exclusionary rule. (Citing

Mapp

v.

Ohio,

367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081]; and

Britt

v.

Superior Court,

58 Cal.2d 469 [24 Cal.Rptr. 849, 374 P.2d 817].)

[547]

Facts

The People’s evidence shows that about two weeks prior to the arrest of appellant, the landlord of a multiple dwelling located in an unincorporated area in Orange County became suspicious of his tenants located in a rear dwelling because of nighttime automobile activities leading down a driveway to the dwelling. People became intoxicated or were under the influence of something. (Narcotics was indicated.) He called the sheriff’s office. A trained investigator in narcotics responded and the landlord told him of his observations. Some observations were made by the officers at the time and during the next two weeks. Telephone calls to the landlord by the officers as to conditions continued. License numbers of cars coming to the house and staying but a short time were taken and cheeked with the Department of Motor Vehicles.

On the night of the arrest, about 11 p.m., two officers were driving near the premises. They noticed an Oldsmobile backing out of the premises, followed it and at a red signal one of the passengers noticed the officers behind them. The Oldsmobile turned around at the corner and the officers continued on and then later turned back. The officers observed the Oldsmobile and two passengers going back to the apartment premises. The officers parked their vehicle, walked to the apartment in the rear of the property and stood at a bathroom window. They looked in and also listened and then went to the front window. They alternated between the two windows for some period of time. One officer testified that he overheard several statements by an occupant while he stood outside the window, and that a man said: “Man, I had to scarf eight joints.” The officer testified that this terminology by the narcotics user means to eat or swallow, and that the word “joint” means marijuana cigarette; that one voice said, “They don’t taste good that way”; that at a different window he heard a male voice say, “I count 37” and another said, “I count 47. That is 10 more.” Later, a voice said, “Man, there is weed all over the place.” According to the officer, the word “weed” means marijuana. He then testified that one said, “Don’t you think you have rolled enough for tonight?” The officer also testified that at that time he smelled an aroma coming from the apartment and he was familiar with the odor and it appeared to be that of burning marijuana; that the officers endeavored to open the screen door but the lights went out in the house and later came on; that they knew that