People v. Plane

ELKINGTON, J.

The People appeal from an order of the superior court setting aside an information charging defendant Justin Plane with possession of marijuana. (Health & Saf. Code, § 11530.) The order was based upon the court’s conclusion that the incriminating evidence resulted from a violation of Plane’s Fourth Amendment rights.

Plane lived in an apartment of an eight-apartment building. He had had disagreements with his landlord, and had changed the lock on his apartment door. On the evening of

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September 2, 1967, when Plane left his apartment to make a telephone call, he was arrested outside the apartment door. The officer asked “if he wanted to go into his apartment to get any clothes or anything and he just slammed the door and said, ‘Let’s go.’ ” “All the lights were lit in the apartment, nothing was turned off, ’ ’ and Plane’s cat was left behind.

The landlord had had a fire in the building. Knowing that the lights were on in Plane’s apartment and suspecting that the gas stove might be lit, he was fearful for the safety of the building and its tenants. He also knew that Plane’s cat was in the apartment unfed and unattended. He could not readily check the safety of the apartment for he did not have a key thereto. Deciding nevertheless to enter, but conscious of his strained relations with Plane, the landlord “called the Police Department and told them if they would be a witness while [he] went in to check the apartment to make sure it was in safe condition.” The next day, in the presence of Police Officer Kitchen, the landlord and the occupant of a neighboring apartment lifted a rear screen door off its rollers and entered the apartment through an unlocked inner glass door. The officer did not participate in effecting the entry. He had been advised that the tenant of the apartment was in jail. The apartment was secured, and the eat was rescued by the officer and delivered to the S.P.C.A. While in the apartment the officer saw some growing plants which he identified as marijuana. Because he was not completely certain of his identification he telephoned an expert, Police Sergeant Nye. Sergeant Nye responded, entered the apartment in the presence of the others, and positively identified the plants as marijuana.

Plane’s contentions before the superior court, and here, are: (1) The apartment owner had no right to enter the apartment; but if it be determined that he did, then (2) Officer Kitchen had no such right even at the owner’s invitation; but even if that officer acted properly, nevertheless (3) Sergeant Nye’s later entry was unjustified and violative of the Fourth Amendment.