Monthly Archives: April 1974

1974 Spring: Leon Letwin, Criminal Law II Class

View in searchable PDF format: 1974 Spring – Leon Letwin, Criminal Law II Class.OCR

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Raw text:

Mr . Letwin

Yet More On

121. CRIMINAL LAW II § 2

Coolidge v. New Hampshire, or

” •• it is not that narrow.

It is not that narrow.

It is just not that narrow.

(p . 29 below.)

LOS ANC:EU:S: SCHOOL OF LAW

Spring 1974

1) Po lice Arrest Report. . • . . . . . . . . . . . . . • . . . . . . . • 1

2} Complaint… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

3) Transcript of Preliminary Hearing (partial) . ….. 4

4) Points and Authorities submitted in

support of P.C. § 995 motion in Superior

Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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IN THE MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT

COUNTY OF LOS ANGELES. STATE OF CALIFORNIA . :·:. ..

THE PEOPLE OF THE STATE or· CAllt:’ORNIA.

Plaintiff, NO. •..••kf.C.... .:..~..:....:..:.:..&..J....•…..•….

v.

COMPLAINT

FELONY

Derendant.

…. -. . .. .. —··—~~

Personally appeared before me this 23rd day of March, 1972

· R. ~fattt;Lews

,

of the County of Los Angeles who, being first duly sworn on oath, upon information and belief complains and

says:

That on or about the 22nd day of March, 1972 , at and in the County of

Los Angeles, State of California, the crime of VIOLATION OF SECTION 11530.1 , Health and

Safety Code, a felony, was committed by · . c::: :: :: .: .. ~~~-· :::::.::;:w.

who at the ~ime and place last aforesaid, did willfully, unlawfully and feloniously plant and

cultivate marijuana.

Said complainant therefore prays that a warrant may be issued for the arrest of the defendant who may

then be dealt with according to law. TLtEWS 6071

R. J. MA”f ~

Subscribed and sworn to before me on

!-larch 23, 1972

ISSm:o HY JOSE:PII P. BUSCH. Jr.. Dt!;tuct Attorney

By

. t . . ·.: •Jj

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Ba·’ rrxommAndcd

STEVEN D. OGDEN,

Deputy $ 1 1000 • 00

—-– ——————————-~–~

..,

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1 IN THE MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT

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COUNTY OF LOS ANGELES, STATE OF CALIFORNIA

HON • JUDGE DIVISION NO. 46

THE PEOPLE OF THE STATE OF CALIFORNIA . No .

Plaintiff,

-vs-

Defendant

ooo-

COUNT I: VIOL. OF

SEC. 11530.1, H&S CODE

REPORTER’S TRANSCRIPT OF PRELIMINARY HEARING

THURSDAY, APRIL 20, 1972

21 APPEARANCES:

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For the People z

For the Defendant:

MISS TERRY FISHER ,

Deputy District Attorney

LEON LETWIN, ESQ.

Attorney at Law

LUCILLE ANGEL, C.S.R.

Official Reporter

f/

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LUCILLE ANGEL, C.S.R. · OFFICIAL. REPORTER

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1 LOS ANGELES, CALIFORNIA; THURSOSAY, APRIL 20, 1972

2 9:00 A.M. SESSION

-os

I THE COGP.T: This is the time and t: lace for the prelim-

6 inary hearing in the case of the People of the State of

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THE DF.FENOJ\NT: M9 I

THE COURT: And is your true name spelled as follows:

First name last name

THE DEFENDANT : Yes.

THE COURT: Hay the record ShO\i the defendant’s true

name is the name as set forth in the complaint.

The Court presumes that at the arraignment the

defendant was informed of the charges a’Jainst her, _a copy of

the complaint was delivered to her, and that she was advised

of her consti t utional rights . Nevertheless, the Court will

again ~dvis c t he defendant ofher constitutional rights, which

are as follows =

The right to be represented by an attorney of her

own choosing at all stages of the se proceedings. If the difendant

cannot afford to hire an attorney the ~Jblic Defender

will be appointed to represent her. The record will show,

however, that the de fendant is represented at this preliminary

hearing by counsel, Leon Letwin, Attorney at Law.

The right to a speedy and public trial.

The right to be confronted by and to cross-examine

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the witnesses testifying against her.

The right to the compulsory process of the Court

to subpoena witnesses in ~ehalf of the defendant.

The right to be released upon reasonable bail pend

ing trial.

The riqht to testify in her own behalf, bt1t the de

fendant cannot be compelled to be a witness against herself.

However, ~f the defendant does testify ~he then may be crossexamined

by the People.

It the defendant is held to answer and an Information

is filed against her in the Superior Court she is entitled

to a trial by jury or a trial by the Court without a jury, if

the District Attorney consents, as the defendant may prefer.

, do you understand those constitu-

15 tional rights I have just explained to you?

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THE DEFENDANT: Yes.

THE COURT: Are there any questions concerning those right·?

THE DEFENDANT: No.

THE C~URT: Are both counsel ready to proceed?

MR. LETWIN: Yes, Your Honor.

·MISS FISHER: The People are ready.

MR. LETWIN: Your Honor, I understand this is a one

~- witness case, and if that is so, ·of course, there is no need

24 to ask for an exclusion of the witnesses.

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MISS FISHER: There is only one witness.

THE COURT: All riqht.

MR. LETWil~: Your Honor, perhaps the record should also

m show that Mr. Richard Wasserstrom, my colleague, is seated at

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the counsel table.

THE COURT: The r~cord will so reflect. The People may

call its first witness.

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MISS PISIIER: The People are ready to proceed and would

call Officer Yant.

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7 LAWRENCE YANT,

a called as a witn~ss by and on behalf of the People, beinq

9 first duly sworn, was examined and testified as follows:

ro THE CLERK: Please state your name, sir.

11 THE ~TNESS: Lawrence D. Yant, Y-a-n-t.

12 THE CLERK: Thank you.

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14 DIRECT EXAMINATION

15 BY MISS FISHER:

16 Q Officer Yant, what is your occupation and your

17 assignment?

18 A’ Police officer for the City of Los Angeles,

~ presently assigned to Rampart Patrol.

20 Q Were you so assiqned on l.farch 22nd of 1972?

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I was.

And at approximately 9:40 a.m. on that date were

D you on patrol?

24 A Yes.

~ Q Were you in a black and white marked police vehicle

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A

Q

A

Yes.

Were you with a partner officer?

Yes, I was.

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What is his name?

Officer Atkins.

Were you in uniform?

Yes.

Did you have occasion to drive past-

–Street?

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Q

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Yes, I did.

Is that in the City and County of Los Angeles?

Yes, it is.

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10 Q Was your attention drawn to anything at that loca-

11 tion?

12 A Yes, it was.

13 Q And what was that?

14 A As I drove past the house I observed two plants

~ setting in the window, in the left-top window, of the house,

16 the left corner.

17 Q Were the curtains drawn or open?

18 A They were open.

19 Q Was there anythinq peculiar about these plants?

20 A To me it resembled marijuana.

21 Q Officer, what is your training and your experience

~ in narcotics; more specifically, in the recognition of mari-

D juana plants?

24 A I received training at the academy on three or

5 four occasions. I have made approximately 50 to a hundred

26 arrests.

27 Q Would that be arrests for cultivation of marijuana

28 plants?

.( C/

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‘-U\,;ILL.t:. ANCiti.L, C.S.R. OFFICIAL. REPORTER

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A Possession and cultivation, and I have probably

2 observed marijuana several hundred times at the station during

a different arrests by other officers.

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Have you observed it in a growing condition?·

Yes, I have.

On approximately how many occasions?

.F ifteen.

Was there anything distinctive about the plant that

drew your attention to it?

A ·On place was setting directly on the window sill;

and there was a much larger plant setting behind it. · From

where I was I observed the plants, and one of the leav~s was

about as big as my hand. I observed the leaves ware jagged •

I then got out of the car, walked closer, and in my opinion

upon looking up at the window I believed it to be marijuana.

Q You say you looked up at the window. Was this

on the first or second story?

A

Q

A

This is on the second story.

What did you do after looking up at the window?

I then walked around to the side, and there was

a flight of stairs qoinq up. At this time the defendant walked

out of the house or out of the door, and I approached her,

walking up the stairs. I told her that we were conducting a

narcotics investigation, and I believed that there was marijuana

in the house. The door was open, and I then walked into

the house. Upon a closer observation of the plant I believed

it to be marijuana.

Q Officer, before you entered the house you say that

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LUCILLE ANGEL, C.S.R. OFFICIAL REPORTER

you looked at the plants again from outside the house; is

that correet?

A Correct.

Q And at that time what did. they appear to you to bei

A Marijuana.

MR.~LETWIN: Your Honor, may enter an objection to any

testimony to the effect that he observed marijuana inside

except insofar as it is offered to show his state of mind and

his belief?

THE COURT: Yes, to show his state of mind only, only

t hat.~t appeared to be marijuana. ,fl

MR. LETWIN: · Thank you, Your Honor.

BY MISS FISHER:

Q These were pl~~ts in a growing c·ondition that you

observed inside the house, is that correct?

A Yes. One was in a milk carton and the other one

was in a large vase, a large pot.

~ What did you do after enterinq the house?

~ Upon a closer observation of the plant I conclude1

.: … or believed that it was marijuana, and I placed the defendant

under arrest.

Q Do you see that person in court today?

. A Yes, I do.

,

Q Cou~d you point.her cut for the record, please.

A She is the defendant seated in the yellow blouse.

Q Did you book the plants into evidence?

A Yes, ~Y partner did.

Q And was that in your presence?

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LUCILLE ANGEL, C.S.R. OFFICIAL REPORTER

A Yes, it was.

MISS FISHER: Your Honor, I have an analyzed evidence

envelope bearinq the DR number 72-489 905, booked to

• May the envelope and its contents be marked People’s

1 for identification?

.THE COURT: It may be so marked.

MISS FISHER: May I approach the witness, Your Honor?

‘l’HE COURT: You may.

BY.MISS FISHER:

Q Officer, approximately how tall were these plants?

A One plant was approximately five foot and the otha

one was approximately a foot.

Q Officer, showing you People’s 1 for identification,

do you recognize this envelope?.

A Yes, I do.

0 Is that in your handwriting or your partner’s

handwriting?

A That is my partner•s handwriting.

0 Was that booked in your presence?

A Yes, it was.

Q Was the envelope sealed in your presence?

A Yes, it was.

Q ‘Could you open People’s 1 for identification and

describe what you are doinq? Is it in a sealed condition at

this time?

A Yes, it is. I am ripping the seal on the back,

breaking the yellow seals, and removing the contents.

MISS FISHER: May the record indicate that there is also

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1 a· photograph contained within People’s 1 for identification?

·2 ‘l’HE COURT: The record wil.l so reflect.

1 MISS FISHER: Your Honor, could this photograph be

4 marked People’s 1-a?

5 ‘l’HE COURT: Yes.

6 MISS FISHER: Thank you. May it also be indicated that

1 the photograph on the back bears the DR number 72-489 905,

8 and it bears the words •oefendsnt n and it has

9 the initials “AJA” and then indicates the date 3-22-72?

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THE COURT: Yes.

·BY MISS FISHER:

Q Officer, referring your attention to the plastic

13 bag contained within Peopl~’s 1 for identification, have you

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seen this before?

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No, I haven’t seen the bag, no.

Could you open the baq.

Yes.

Have you seen the contents of the bag beforer

Yes, I have.

And was this taken from the plants that was inside

21 the defendant • s house?

22 A Yes, both of them are here. We broke them up and

~ placed them in this envelope, in this manila envelope.

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Q

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. ~s this the entire plants?

That is both of them, yes.

Is that both of the plants?

Correct.

Showing you People’s 1-a for identification, were

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LUCILLE ANGEL, C.S.R. OFFICIAl. REPORTER

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you present w,. hen this photograph was taken? ·

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Yes, I was.

Where was·this photograph taken?

At Rampart Detectives.

Is there anything on the photograph that would

indicate the height of the plant?

A Yes. There is a measuring scale on the wall,

painted on the wall, directly behind it.

a What does it indicate?

A It is·right under or right approximately five

feet.

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Q Is that a true and accurate representation of . .;h….;

13 plant that you saw inside the defendant’s house?

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A Yes, it is.

THE COURT: May I see it?

~ MISS FISHER: Yes.

THE COURT: Thank you.

BY MISS FISHER:

Q You say that the evidence contained within People’s

~ 1 for identification was booked in your presence; is that .

21 correct?

22 A Yes, .it was.

.23 Q And that was booked at what station? Was that at

24 Rampart Station?

25 A It was booked in the Property down at the Property

26 Division do\omtown.

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Did you bring that evidence to court with you today•

Yes, I did.

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LUCILLE ~NGEL, C.S.R. OFFICIAL REPORTER

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1 Q Did all these eventa occur in the County of

2 Los Angeles?

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A Yes.

~ISS FISHER: I have nothing further.

THE COURT: You may cross-examine.

CROSS-EXAMINATION

a BY MR. LETWIN:

9 Q

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12 A

13 Q

Officer Yant, were you driving the car?

Yes.

And Officer Atkins was sittinCJ where in the car?

He was sitting in the right-front seat.

Is there anything in particular that attracted. yo

14 attention to the window?

IS

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Q

No, nothing drew my attention to the window, no·.

Did you have ~y information from other sources

17 that there were plants in that window that you might be in-

18 terested in?

19 A No.

20 Q There were no informers?

21 A None.

22 Q first observed the plants in the window

23 where was

24 A

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26 Q Would it be accurat

27 driving in a westerly direction

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proceeding west on

that you were

side of-

t~l- t,

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. ,. • •• ,.~ ••• , … , .. c … Pf#W.U.• ‘· ,. “‘ ,

premises before making your observations?

2 A No.

Q Di~ you obtain anyone’s permission?

4 A No.

s Q What then did you do?

6 A When, Counsel?

1 Q After making your observations from the closest

8 point. You described a moment ago that you tilted up your head

9 and saw what you believed to be marijuana. What did you do

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after you saw that?

I then walked around to the side of the .”houE”e ar/1

·Started to go. up the landing of the staircase, the stairs. 1 . I

Q About how many steps were there?

A I don’t recall.

Q Does 20 sound about right?

A I would day approximately 15 or 20.

Q As you started goinq up those stairs did you

observe the defendant?

A Yes.

Q Where was she?

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A She was walking out of the house or out of the door

,\lf.ay.

Q Did she remain on the top landing or did she

proceed down the steps?

A I don’t recall.

Q You proceeded up the steps?

A Correct.

Q Where was your partner at thi:; time?

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LUCILLE ANGEL, C .S.R . OFFICIAL REPORTER

A Alongside or with me.

Q Did any conversation ensue between you and the

defendant?

A· Yes.

0 Could you relate that conversation?

A She asked something about —

MISS .FISHER: Your Honor, I am going to object. This

would call for hearsay •

THE COUP.T: OVerruled. He may answer .

18

THE WITNESS : She asked me something about what was the

noise over around ………. the night before, and my partner

proceeded to explain what had happened over there. ~y this

time we were at the top of the stairs, and I told her: wwe

are conductin~ a narcotics investigation. I believe there

is marijuana in the house.• At which time she stated, “You

don’t have the right to go in.” At this time I entered the

house and approached the plants.

0 Now, Officer, did you have an arrest warrantfor

the defendant at this time?

A No.

Q Did you have an ar::-est warrant forfor

any ~uspected occupants of that apartment?

A No.

Q Did you have a search warrant for the premises?

A No.

0 She denied you consent to enter the apartment; is

that correct?

A She sai d, .“You don’t have the right to go in.”

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LUCILLE ANGEL, C.S.R. OFFICIAL REPORTER

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Q Did you interpret that as a denial of consent?

A Correct.

Q As you went up those stairs did you believe that

you had probable cause to believe there-was marijuana in the

window?

A Definitely.

Q Did you believe you had probable cause to arrest

the defendant at that time?

A

Q

I believed that the plants were marijuana, yes.

Did you place her under arrest as you went up the

stairs?

A No.

Q Was she· free to leave aa she l~ent up the stairs?

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A No.

Q Did you believe anyone was in the apartment at

the time you entered?

A I believed there could possibly have been other

people, yes.

Q Did you have any reason to believe there were other

people in the house?

A No.

Q Pid you hear any people in the house?

A No.

0 Did you see any people in the house before entering

it?

A No.

Q In point of fact, were there any people in the

house when you entered it?

LUCILLE ANGEL, C.S.R. OFFICIAL REPORTER

20

1 A Other than the defendant, no.

2 Q Who entered the house first?

8 A I did.

Q And then who?

5 A I don’t recall, Counsel. I don’t know who was

6 behind me.

7 Q You were the first·o~ the three? That is, between

a you, your partner and the defendant, you first entered the house;

9 is that correct?

10 A Correct.

11 Q And did you say or do anything immediately before

12 entering the house?

13 MISS FISHER: Asked and answered, Your Honor.

14 1m. LETt-liN: I am speaking of the period immediately

1s preceding your entry into the house.

16 THE COURT: Overruled. He may answer. Anything other

17 than what he has already described?

18 MR. LETWiN: That is correct, Your Honor.

19 THE WITNESS: blo.

20 BY MR. LEl\”TIN:

21 Q You did not knock on the door, did you?

22 A No.

23 Q You did not announce your presence to anyone inside

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the apartment, did you?

A No.

Q And you didn’t state the purpose of your being

27 there to anyone in the apartment, did y’ou?

28 A Other than the defendant, no.

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21

1 Q That is correct. And when you spoke to the de-

2 fendant that was outside the apartment; is that cor~ect?

:. A “‘ correct.

4 Q Now, I want to be very clear on this: When you

s first encountered the defendant she was outside of the apart-

6 ment is that correct?

7 A She walked from the inside out.

8 .Q And as you went up the stairs at a certain point

9 you passed her and entered the apartmentJ is that ·correct?

10 A She was standing a~ the top of the stairs on the

n landing •.

12 Q On the landing. You are cettain it was on the

13 landing and not three or four steps down?

14 A

15 Q

16 A

17 ment.

18 Q

19 A

At this time she was on the landing.

At which ttme, Officer?

When I told her that I was going into the apart-

All right. She was outside the apartment?

Correct.

20 Q Had you wanted to you could have arrested her out-

21 side the apartrnen t?

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Q

Correct.

And you belietdl& you had probable cause to believe

~

that there was marijuana in the window at that occasion; is tha~

correct?

A. Correct.

Q The reason you entered the apartment was because

you believedthere was contraband is that.aorrect?

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A Correct.

0

..;eize it.

You went ~f~o search for the contraband and to

._ass FISHER: Objection, Your nonor. There is no evidenc

of any search involved in this .case.

THE COURT: Sustained.

BY MR. LETWIN:

Q You went in for the purpose of examining the

plants and seizing them?

A Correct.

Q And for no other purpose?

A Correct.

Q

· as you tilted your he

you made ypur observations of the· plants

back outside the apartment buildinq,

could you the plants were?

A The the milk carton was seated on

the window sill itself. # other plant “.‘ as, directly beh,., ind

it but off

0 f

the smaller of the plants

the one seated on the sill?

A Approximately one

0 Does that measure from of the container

to the top of the plant ~r only the he of the plant itself?

A I guess from the bottom of container, the

~ entire thing.

26 0 From the bottom of the the

21 plant?

28 A Correct.

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30

1 Q When you entered into the apartment was the de-

2 fendant with you at that time? Did she also enter the aparta

ment?

•• A Yes •

5 MISS FISHER: I have nothing further.

6 MR. LETWIN: One further question, Yo~r Honor?

1 THE C9URT: Yes.

8 MR. LETWIN: May I mark this photograph purporting to

9 be a picture of the side 9f the house Defendant’s Exhibit E

10 for identification?

11 THE COURT: Yes.

12 MR. LETWIN: Thank you, Your Honor.

13

14 RECROSS-EXA!~INATION

~ BY MR. LETWIN:

16 Q Now, Officer, the landing at the top of the stairs

17 was in a fairly secluded point, was it not?

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A Secluded? I don’t know what you mean.

MISS FISHER: Objection,· Your llonor.

l~. LETWIN: I will withdraw that question.

BY MR. LE T’h’IN:

Q Would it be possible to see through that door from

23 · any point on the ground level?

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MISS FISHER: Objection, Your Honor. It calls for a

conclusion of the witness.

THE COURT: He can answer.

BY MR. LETWIN:

Q If you know.

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THE COURT: If he can answer it he may answer it. Do

you mean the interior of ~he apartment?

MR. LETWIN: Yes, sir.

THE WITNESS: From the ground?

BY MR. LETWIN:

Q Yes.

A I don’t believe you could.

31

Q You would:have to go up the steps and look into the

door to see what was on the inside of the apartment?

A Yes.

Q Officer, I show you Defendant’s E for identificatio~

and ask you if this is a substantially accurate portrayal

of the steps leading up to the apartment?

A Yes.

Q. Do you see the door there through which you entered~

A No. I see just the white right behind this front

po~·ion,·which would be part of the door or the doorway.

Q Is there a door shown i.1 this photograph?

A I don’t see it.

Q Does that appear to be a door under the overhang?

A It appears to be a screened area. I don’t know

if it is or not.

MR. LETWIN: I have another photograph. May it be

marked Defendant’s F for identification?

THE COURT: It may be so marked.

MR. LETWIN: It bears the identification “B-10” and the

initials “RJA” on the back.

May I have permission to approach the witness, Your

1 Honor?

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LUCILLE ANGEL, C.S.R. OFFICIAL. REPORTER

‘1’HE COURT: Yes •

BY MR. LE’l’WIN:

32

0 I ~how you Defendant’s F and ask you if you recogs

nize that scene?

6 A Yes.

7 Q Is that the side of the building at ………

8 ,,;,., ?

9 A Yes.

10 Q Does it show the steps leadinq up to the door

11 through which you entered?

12 A Yes.

13 Q And does it show another door?

14 A It appears to be another door.

15 Q The other door is in what direction from the door

16 • · through which you entered?

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Q

North or to my left, looking at the picture.

Does this appear to be an accurate portrayal of

the steps leading up to those doors?

A Yes.

MR •. LETWIN: Nothing further.

THE COURT: Anything further?

MISS FISHER: Nothing further, Your Honor.

THE COURT: Thank you. You may step down.

(Whereupon, the witness left the stand.)

MISS FISHER: Your Honor, at this time the People would

offer to stipulate that L. Silverman be deemed to have been

called, duly sworn, and testified as follows: He is an expert

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3:

1 forensic chemist, employed by the Los Angeles Police Departmen1;

2 that he·did on the 24th day of March, 1962, receive from the

Property Division of the Los Angeles Police Department

‘ -People’s.l for identification, which was sealed, that he

s. took it to the laboratory of the Los Angeles Police Department

6 and there opened it by cutting around the seal and examined

7 the contents. thereof; that he performed a physical and chemical

a analysis of the contents of People’s 1 for identification

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finding such contents to b~ 38 grams of plant material, serrated

leaves, stems and dirt; that after performing this

analysis of the contents of People’s 1 for identification

he formed the opinion that it contained marijuana; th~t he

thereupon prepared a written report, replaced· all items into

14 People’s 1 for identification, closed it and sealed it and

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returned it to ~le Property Division of the Los Angeles

Police Department.

MR. LETWIN: Your Honor, we certainly object to the

receipt of this in evidence on the search and seizure qrounds.

However, for purposes of this hearing, we would stipulate that

if it were received the contents are as described.

THE COURT: Very good.

MISS FISHER: Thank you, Your Honor. The People would

move ror the introduction of People’s 1 for identification into

evidence.

MR. LETWIN: Objection, Your Honor.

THE COURT: You may state your objection.

MR. LETWIN: Your Honor, it seems to me there i-s a search

and seizure problem in this case. The officer’s testimony is

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LUCILLE ANGEL. C.S.R. OFFICIAL REPORTER

. ~ e v’ l .. -I I ) I f I ( o/ ~ t v~ ‘<.’ 1 £ .•

cap~le of being put. together aelf=Elefease ·-wise·. However•

th.J f-·

.. it is .Put .togethe,. I think it is clear beyond doubt wi.th9ut

Ulf\dt• . .- ljO•VI•’f _. . ·\

· Uftde~gGI1iig tme· constitutional doctrine as pronounced by the

34

United States Supreme CourtJ ~ere was an illegal entry and

an illegal seizure of the property.

The officer testified that he reqarded the defendant

in effect as being under arrest while she was yet

outside the apartment. I think it is a formality whether he

says she is under arrest. He made it very clear that he

w believed he had probable cause to arrest her as she went up

n the stair steps. she wasn’t free to leave at that point.

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Let’s assume for a moment that we regard his encounter

with her as he went up the steps as the time of the

arrest. Then it is clear that the intrusion into the house

1s would not have been warranted as a search incidental to the

H arrest, because under the Chimel case we know that the scope

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11 of the permissibility search is sharply &e-fined.

18 We also know from Vale versus Louisiana, a United

~ States Supreme Court case, that if a person is arrested out-

20 side his home this does not permit the police to take that

21 arrestee within the home for the purpose of then conducting

~ a search incident to the arrest. A defendant, an arrestee,

u can’t be used as a roving search warrant carried around to

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variops parts of the apartment and buildings and to offer an

excuse for a search incident to that arrest.

Now, if you assume that the arrest was not made

rr outside of the apartment, if you assume that the police officer

• instead ehterod without first having made the arrest, the fact

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is,’ Your Honor, that he had no legal cause to be on the premia s.

Now, it.may be that the prosecution is resting on the theory

tbat.tbe marijuana-or the alleged·marijuana was in plain view

from the outside. Even assuming that the police officer had

probable cause to believe that it was marijuana from the outside,

the plain view doctrine is not an independent tasis or

justification for entering to make a warrantless search.

I prepared a memorandum for my own use, afta not

f..;.r … , rlnr:: c. •. K..::. ·

knowing what ~particular terma would take; I would be happy

to supply a copy to opposing counsel and to the Court.

THE COURT: I am pretty familiar with the law, ·counsel.

MR. LETWIN: If I may read, Your Honor, just one paragraph

from Coolidge unless the Court regards that as pointless,

because it speaks directly to the issue.

~ THE COURr: I do because I think the theory is incorrect.

Your basic theory is absolutely incorrect in my thinking. Well,

I will just say that and will let the People respond.

MISS FISHER: .Thank you, Your Honor. The People would

respond that opposing counsel has sta·ted that there can •t

be a search if it is in plain sight, and that is absolutely

correct, because if it is in plain sight there is no search.

Insofar as entry into the apartment, if she was

-~

arrested outside, if we are talking about 844 problems, failure

to comply, there is no failure to comply w&e~ you enter with

the resident, and in this case if the defendant was under

arrest when they took her in at that time there would be no

failure to comply with 844. Nobody’s privacy was being invaded

at their entry into the residence. Also, anyone inside could

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36

haVe heard the conversation that was taking place outside with

the door beinq open and the officer in uniform. Any resident

who :.might ·have –been inside was certainly forewamed of that.

Insofar as seeing the contraband in plain sight,

it never has been a problem to enter into the premises under

those circumstances. Whether she was arrested outside or

she was arrested inside seems to be irrelevant to the matter,

because the officers have always had a right to go and seize

contraband which was in plain siqht, and my view of the cases

is that this was in plain siqht, and there is no search involved.

MR. LETWIN: May I make a brief response, Your;·Ho;lor?

THE COURT: Yes, of course.

MR. LETWIN: I·quote from Shipley versus California,

IS 395 u.s., 881: “The Constitution has never been construed

16′ by this Court to allow the police in the absence of an etnerqenc~

11 to arrest the person outside his home and then take him inside

1a for the purpose of conductinq a warrantless search. On the

19 contrary, it has always been assume that ones house cannot

~ lawfully be searched without a search W3rrant except as incident

21 to a lawful arrest therein. “

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MISS FISHER: Your Honor, if I could be heard.

MR. LETWIN: If I may just pursue this a bit further.

MISS FISHER: Yes.

MR. LETWIN: I quote now on the plain view theory from

~ Coolidqe vs. New Hmpshire, 19 Supreme Court at page 2039:

21 “Plain view alone is never enough to justify the warrantless

• seizure of evidence. This is simply a corolary of the familiar

~

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LUCILLE ANGEL, C.S.R. OFFICIAL REPORTER

principle ttat no amount o~ probable cause can justify a

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warrantless search or se.~zure abs~nt adjURet!.a circumstances.

.J;~QnJ:~~~~ible , ~es~~ny of . t._. senses that an incriminating

•S

object aD on the premises belonging to a crtmin~l suspect

may eat~blish the fullest possible measure of probable cause,

but even where the object is contraband the Court has repeatedl

stated and enforced the basic rule that the police may not

enter and make a warrantless seizure.•

It is clear, Your Honor, that before the plain

view rule comes into play there must first be a lawful intrusion

on the premises, and there was no lawful intrusion on

the premises. Tha cases are unequivocal that plain view is

not an independent basis for a warrantless intrusion. Those

are the precise words and holdinq~ in coolidqe. Plain view

come into play only once the police have on other grounds

made an independent legal intrusion, such as for example

in hot pursuit or incident to a search warrant or incident to

a valid arrest within the premises. Then the scope of the

search is expanded to include items that are in plain view,

but there first must be an independently valid intrusion of

the premises. The Courts have repeatedly held — and this

quotation expressly holds — that plain view is never enough

to justify the warrantless seizure of evidence, and that is

precisely what took place here, Your Honor.

I would be happy to supply you with a copy of the

memorandum with the quotations if the Court wishes it.

THE COURT: I disaqree with your ·theory. I don-‘t

believe there was a search, and I don’t believe the arrest was

~-

·38

1 made outside the premises.· l think that there was a stopping

2 here, a detaining here for investiqation. The arrest·was

a not made until after tbe re·covaey of the plants.

t MR. LETWIN: Your Honor, what was their leqal authority

s for entering the premises?

6 THE COURT: To get the plants.

7 MR. LETWIN: But this quotation from Coolidge says that

a plain view alone is never enough to justify the warrantless

9 seizure. It doesn’t speak of a search. It speaks of a

10 warrantless seizure.

n THE COURT: As I view the law, it is not that narrow.

u It is not that narrow. It is just not that narrow.

u The objection will be overruled. People’s 1 may

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be received in evidencea that is,. People’s 1 and its contents

may be received in evidence.

MISS FISHER: Thank you, Your Honor. The People rest

17 at this time.

18 THE COURT: Do you wish to enter your exhibits into

19 evidence?

20 MR. LETWIN: Yes, Your Honor.

21 THE COURT: All right. Defendant’s A through F may be

~ received in evidence.

s Any defense at this time?

24 MR. LETWIN: No, Your.Honor.

25 THE COURT: There is a motion to dismiss I assume on.the

26 same grounds?

27 MR. LETWIN: Yes, Your Honor.

28 THE COURT: The motion will be denied. The defendant

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wil·l -please stand.

It appearing to the Court that the offense in the

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within compla-int mention,,d,~ t.o.~·wit,. a. violation of Section ·

11530.1 of the Health & Safety Code of the State of California,

a felony, one count, has been committed and there is sufficient

cause to believe the within-named de£endant guilty thereof,

I order thatme be held to answer to the same. Bail in the

sum of $1,00~ surety bond bail up to stand.

Date of arraignment in the Superior Court will

be May 4th, 1972, at 9:00 a.m., in Department 11~0.

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Ll·:’l’W IN t. W/\SSHHS’I’H()M

22 ‘-6 f.tnnnJ ng Avnnuo ·

J,os /\nr,o los, California 900& 4

475-5207

Attorneys for Defendant

IN THE MUNICIPAL COURT 0~ LOS ANGELES JUDICIAL DISTRICT

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COUNTY·. (..).. ,F ___ L._O S /ANGELES, STATE OF CALIFORNIA /

PEOPLE OF THE STATE OF

CALIFORNIA,

·defendant

marijuana

Plaintiff, No.~

v.

POINTS AND AUTHORITIES IN SUPPOHT

OF MOTION TO DISt.fiSS PURSUANT TO

PENAL CODE SECTION 995 .

Defendant.

STATEMENT OF FACTS

Whether the ma-gistrate had probable cause to commit

depend a on the validity of the seizure of two alleged

plants and their subsequent usa as evidence at the

preliminary haarinq.

The oircurnstances of the seizure, based on Officer Yant’a

testimony, were as follows•

As Yant ‘”‘aa cruising on patrol on March 22, ho saw the

two plants in a second-floor window of the residenca at “*~:~:::p:.

(….·~__.~.. ··’~street (R.’r. S-7). He was then SO to 90 foet from the window

(R.T. 13). The window was of the louvered-glass typo and wa~

ocreonod. The plants were on the inside of tha window, separated

from Officer Yant by both tho louvered glass and tho screen

(R.T. 24-25 and Defense Exhibits nand C (photographs)). From

that distance he believed tho plants “poosibly could bo” marijuana ~~

32

(R.T. 13). He parked, walked up to the front of tho house. went -A\?!.,

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onto what he “presumed” was private property (R,T. 15), and

proceeded into an area largely enclosed by shrubbery (R.T. 15-16),

From there he looked up through the second-story window and coneluded

he had probable cause to believe the plants he saw were

marijuana (R,T. 19),

He then went around to the side of the house and started

up a staircase leadinq to the second-floor apartment. The staircase

consisted of 15 to 20 steps. As he started to ~o up, the

defendant emerged onto the top landinq of the staircase from the

door of the apartment at the top of the stairs (R.T. 17). Whilo

proceeding up the atepa toward her, he said& “We are conducting

a narcotics investigation. I believe there is marijuana in the

house.” She replieda “You don’t have the right to go in.”

(R,T. 18.) Though Yant believed he had probable cauao to arrest

her (R.T. 19~, he did not tell her she was under arrest until

after his subsequent entry into the house (R.T. 8), He was, however,

clear in his mind at this point that she waa not froe to

depart. (R.T. 19),

He walked by the defendant and, without knocking,

entered the apartment throuqh the partially open door, followed

both by the defendant and by hia fellow police officer. After he

aa\tered the apartment, he saw the plant and seized it (R.T. 18),

Yant’a sole reason for entering was to effect the seizur

of what he believed to be marijuana plants, based on his oriq~nal

observations before aacendinq the stairs (R.T. 21-22). lie did not

enter to make an arrest. He had no reason to believe anyone was

on the premises. No one was. (R,T, 19-20). Perhaps it was for

this reason he did not bother to knock before entering.

The entry into the house and the seizure wore warra~tles.a

and without consent (R.T. 18-19).

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ARGUf.lJ:;N’l’

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The “plain view” doctrine is never a sufficient ‘JrOlHH].

for a warrantless soarch of a privata reaid'”nco. Th<1r.o

must first ba an ~ndepcndently justifiabltl intru:Jion of

the premises. Socond, tho evidence seized munt hnvt:!

been inadvertently coma upon and its seizure unplannf’!c.~.

a) Plain vio\-1 alono is never enough.

[P]lnin view aloPc is never enough to justify

the warrantless-s•~izure of avirlanco. This is

simply a corollary of the familiar principle

•.•• that no amount of probable cauAo cnn

ju3tify a warrantless search or saizur~ nhAcnt

“oxigont circumstanccn.” Incontrovertible

testimony of the scJHJcs thnt an incr.:l.mi.nnting

object is on the premises bolonqing to a

criminal suspect mny establish tho fulltHJt

p’oso.lble measure of. probable cause. D!Jt. cv•~n

whore the object is contraband, the cOiJt=tllils

repeatedly stated and enforced the ha~~lc rulo

that tho olicc rna not enter and m.lj<e;! ·”‘

warrantless s’3izuro. c t ng numerOli’!lC:.HJcs.)

Wmphasis added .. ) Coolidge v. New llnmt{-;Jdra,

403 U.S, 443, 91 S. Ct. 2022, 2039 (l9 1).

b) The discovery of evidence in plain view must

be inadvertent. “(W]here the di~covery is anticipated, whore the

police know in advance the location of tho evide~ce and lt1tend to

seize it,” than the discovery of the plain view avidcnco is not

inadvertent and it must be oxoluded. Coolidge v. New 1I;.1mp3hiro,

91 s. ct. at 2040.

Tho function of the plain view doctrine is, thon, var.y

limitod. If there is a valid initial intrusion into privato pr~misos,

as for example, by virtuo of a warrant, or to makP- nn nr.r•~nt,

or because of some emergency (~., to help a parson hoard to h’-!

moaning from within tho premises as if in distress, oeo £_nop~~

Roberto, 47 c. 2d 374, 303 P.2d 721 (1956)), than tho scop~ of

permissible police soaroh may expand to include otherwise imp~rmiaeible

items, so lon9 as they are in plain view !!2!! inadvertPntly

corno by. Neither of these conditions were mot on the facts, .,o..f.,

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this c.a se,

II

‘£hera was no ini tiill justifiable intrusion of t.hu

promisua.

a) This waa not a valicJ Chi.mel ::HJ<u:ch.

Assuming the defendllnt’ s arrost was con~ununatcd on tho

staircase outside the apartment prior to the soizura, that nt”r,·HJt

does not validnta tho subsoquont intrusion and soizuro. l:Jt.iJtl’J1

v. California, 395 u.s. 752, 763, 89 s. Ct. 2034, 2040, 211 r,. J::d.

388 (1969); Shipley v. California~ 395 u.s. 818, 820, 89 s. Ct.

2053~ 23 L. Ed. 2d 732 (1969).

Assuminq defendant was merely “detained,” rath’=!r than

arrested, prior to Yant’o entry into the apartment, the entry and

seizure were avon less justified. 1\ search or seizure whic:h i would not be permitted as incident to an arrest undor Ch~n;>l, I

would a fortiori not be permitted as incidont to a mere “c.Jt~t.,!nti<)ll. 1′

I

Defendant ‘..s subsequent presence inside tha apartmr~nt is 1

of no significance. A p.erson can neither be detained nor nrro~t:e<i I

I outside her apartment and than carted inside to furnish tlu:l pr<‘tuxli

i

for a search or aeizura. Tho defendant’B body cannot be uan~ nn

a roving search warrant to authorize police intrusion into \·tha t.QV(!r:

area the polico chose to cnr.ry her.

[‘r]hr:! Conatitution haR never boon conqtrur:ld

by this Court to allow tha polic(;~, in thn

nbsence of an emergency, to arrost n p~r~on

outaidc his home and then taka him inr. i.tl··· fnr

lor the purpo!ln of conducting n wnrrnn tJ … n!1

sonrch. On the con trnry, “it ha a n 1′””” yn br~”ll

anRumrJd that ono’ o house cannot lnwfully ho

nearchod without ·a oc.r:u:ch warrnn t, f.’ >:r·r-p t tH1

nn incident. to n lawful arrEJst than:· in.”

(Citin9 nuthoritios.) Shipley v._l~~~·~:~~,.~~·.’!..i.:.a.•

395 U.S. BlO, 820, 09 s. Ct. 2053, ;lJ L •• J:tt.J.d

732 (1969).

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b) Thera worQ no exigent circumstnnco!l th•~!:.~!!..-2. ·I

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eractical matter nacunsitato<l tho wnrrantlcss cn~ry in l’!~~~:.~:· ®

A five-foot tall, pottod marijuana plant (n.·r. 9) aittirl:J.~

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ira a window ia not a tranoitory or oph~mural object rn’iUlrJn’t

immediate aoizure to prevent itrJ rllsapptJaranor3. ‘L’ho c’JilLr.t~•·y

m.ight be true if the object seized wore a readily consumabl(~ o1.·

transportable quantity of procosaed drugs.

Officer Yant had no reason to believe the plant had not

been sitting precisely where he observed it for weeks or months

prior to his arrival on the scene. Nor had he reason to Ruppo~e

it would not be there after the short time necessary to ohtaln a

warrant.

Yant believed he had probable cause to suspuct tho

plants were marijuana bofora he evor went up tho stairs, hofore

ho aaw the defendant, and before he arrested her. He could hAve

sought a search warrant prior to her arrest or after it. ~1era

was no exigent circumstance that required short-circuiting the

procedure by the warrantless entry and seizure.

DATED1 May 11, 1972 LETWIN & WASSERSTROM

By

Leon Letwln

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