People v. Murray

Opinion

BEACH, J. Lawrence Murray was charged with possession of marijuana (Health & Saf. Code, § 11357, subd. (a)), possession of [344]marijuana for sale (Health & Saf. Code, § 11359), and possession of a controlled substance (Health & Saf. Code, § 11378). Finding that the officers did not comply with Penal Code section 844, the trial court set aside the information pursuant to section 995 of the Penal Code. The People appeal from the order setting aside the information.

Facts:

Deputy James Smith testified at the preliminary examination that on August 20, 1975, at about 2:20 a.m. he received a call concerning loud music at an address in Paramount. He arrived at the address, heard loud music, knocked, and received no answer. He knocked again and received no answer; he then knocked loudly, announced who was at the door, their presence, and their reasons for being there. After about 10 seconds, the music was turned down, and Deputy Smith heard muffled talking. The door was opened. Light smoke came from the door; Officer Smith smelled a “real strong odor of burning marijuana.” He also heard sounds like a toilet flushing, and his partner went to investigate.

Officer Smith detained occupant Miller and retrieved several burned marijuana cigarettes. His partner brought Mr. Evers from the bathroom. Evers stated that the cigarettes were not his but that they belonged to his roommate, who was in a bedroom with his girlfriend. Deputy Smith approached the bedroom that Evers had indicated. The door was partially open;1 the lights were off. Deputy. Smith opened the door and stepped in; he turned the lights on.2 He saw an open closet with a plastic bag containing marijuana; a brown paper sack was open next to it, and Smith saw a white powdery substance that he thought might be heroin. Murray, the defendant, said that it was only seconal. On the nightstand Officer Smith found, a scale; baggies, marijuana residue, and bags of the white powdeiy substance were found below the nightstand. A larger plastic bag containing marijuana stems and an open grocery bag with a brick of marijuana wrapped in light blue paper were also next to the box at the foot of the bed.

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