People v. Cox

KINGSLEY, J. The People appeal, under subdivision (7) of section 1238 of the Penal Code, from an order dismissing a prosecution for narcotic violation after the court, on the mo[817]tion of defendants, had made an order under section 1538.5 of that code suppressing certain evidence. We affirm the order.

For reasons discussed below, if the order under section 1538.5 was properly made, a right to a dismissal of the prosecution followed. Defendants sought the order of suppression on two grounds: (1) that the evidence suppressed was secured by the police as the result of an entry made in violation of section 844 of the Penal Code; (2) that the evidence procured by the police officers prior to their entry was obtained by an unconstitutional violation of defendants’ right to privacy; and that, without such evidence, there was no cause to arrest or enter.1 We conclude that the first contention is correctly taken and that we need not determine the second.

A neighbor of defendant Kellotat reported to the police that she had observed someone injecting himself in Kellotat’s apartment and that many different persons went in and out of that apartmént. From other sources the police knew of narcotic activity on Kellotat's part and had been told that he used his apartment as a “shooting gallery.”2 With the permission of the complaining neighbor, officers conducted a surveillance of Kellotat’s apartment from the neighbor’s apartment. For about two weeks, nothing significant was observed.3 On August 14, 1967, at about 7:30 p.m., the surveillance was resumed. By standing on a chair and using binoculars, Officer Dvorak was able to see part of the interior of the apartment. He testified as to what he saw as follows:

“A. At that time I observed in defendant Ryan’s right hand what appeared to be a plastic eyedropper with a bulb-like object affixed to the end. There appeared to be a needle attached. And he had his left arm in ati upraised position and he appeared to be pumping it. He would raise it up and down, like this, and close and unclose his fist.

“The juvenile at this time was holding onto his left arm above the elbow region and seemed to be assisting him in this process.

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