THE PEOPLE, Plaintiff and Appellant, v. FRANK MICHAEL BLOCK, Defendant and Respondent, 6 Cal. 3d 239

Opinion BURKE, J. Defendant was charged by information, with felonious possession of marijuana (Health & Saf. Code, § 11530) and with being in a place where narcotics are smoked or used, a misdemeanor (Healfh & Saf. Code, § 11556). Defendant’s motion to set aside the information pursuant to Penal Code

section 995 was granted by the superior court on the theory that the evidence against defendant on the felony charge was obtained during an improper warrantless search of defendant’s house conducted for the purpose of determining whether additional participants in the felony were on the premises. The People herein appeal from the order of dismissal. (Pen. Code, § 1238, subd. 1.) We have concluded that under.the particular circumstances of this case, the search for additional suspects was proper, and that accordingly the order of dismissal must be reversed.

The following facts were adduced at the preliminary examination: At 10:30 p.m. on the night of March 14, 1970, Officers Galloway and Marco were notified by police radio that there was a possible narcotics suspect at a specified address. The officers proceeded to that address and knocked on the door. Defendant opened the door and the officers immediately detected the odor of burning marijuana emanating from within. The officers identified themselves and told defendant that they had received a call regarding a possible narcotics suspect or narcotics party. Defendant admitted that he lived in the house.

After a lapse of 30 seconds or so, the officers entered the house and observed a smoking marijuana roach in a metal clip on a coffee table in the living room, along with two pipes, one of which was warm and appeared to contain marijuana. The officers thereupon arrested defendant and three other persons found in the living room. Officer Marco went into an adjacent dining area and arrested two other persons. Marco observed that at least four of the six suspects had dilated eyes and pupils and an odor of marijuana upon their breath.

The suspects were left in Marco’s custody while Galloway went upstairs “to see if there were any other people in the house.” Galloway testified before the committing magistrate that “because of the number of defendants in the house, I believed there was a possibility of more defendants” upstairs. The house was “quite large,” containing three or possibly four bedrooms. Lights were turned on to illuminate the stairs leading to the second floor and the upstairs hallway. On the second floor, Galloway looked in one bedroom, a bathroom, and then a second bedroom.

The light in the second bedroom was off and the door partially open. Galloway turned on the light, looked behind the door to see if anyone was hiding there, and then surveyed the room. He then observed a clear plastic vial lying in plain sight on the table and containing what appeared to be marijuana. He also saw an open jewelry box and, looking into it, discovered pieces of tin foil, a plastic bag, and a match box. He opened these items and found more marijuana. Defendant contends that the marijuana found upstairs was the product of a search which exceeded in scope the permissible limits set forth in Chimel v.

California, 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034]. On the other hand, the People argue that since Officer Galloway was not conducting a search for contraband but instead was looking for additional narcotíes suspects, Chimel is inapplicable and Galloway was entitled to seize contraband lying in plain sight and discovered during the course of his investigation. We agree that Chimel does not preclude the seizure of evidence found in plain sight during the course of a lawful investigation.

Moreover, although we question the propriety of conducting in every case a general exploratory search for “possible suspects,” nevertheless the instant search was justified under the particular facts and circumstances appearing to the arresting officers herein. In Chimel, the police arrested defendant in his home for burglary and, incident to the arrest, conducted a warrantless search of his home, attic, garage and workshop, gathering numerous items of evidence.

The court found “ample justification ... for a search of the arrestee’s person and the area ‘within his immediate control’-—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. [Par.] There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.

Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.” (395 U.S. at p. 763 [23 L.Ed.2d at p. 694].) It is clear, therefore, that had Officer Galloway been conducting an evidentiary search of defendant’s residence, that search would have exceeded the limits prescribed in Chimel, for the upstairs area of the house certainly lay beyond the area within the immediate control of the persons arrested in the living and dining rooms.

However, one of the “well-recognized exceptions” referred to in Chimel, is the rule that “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. [Citations.]” (Harris v. United States, 390 U.S. 234, 236 [19 L.Ed.2d 1067, 1069, 88 S.Ct. 992]; see Coolidge v. New Hampshire, 403 U.S. 443, 465-466 [29 L.Ed.2d 564, 582-583, 91 S.Ct. 2022]; Mozzetti v. Superior Court, 4 Cal.3d 699, 707 [94 Cal.Rptr. 412, 484 P.2d 84]; People v.

Bradley, 1 Cal.3d 80, 85 [81 Cal.Rptr. 457, 460 P.2d 129].) A corollary of the “plain sight” rule, and one which is pertinent to the instant case, is that “During a lawful search of premises for persons believed to be in hiding, police officers may seize contraband evidence ‘in plain sight.’ [Citations.] Under such circumstances there is, in fact, no search for evidence. [Citations.]” (People v. Marshall, 69 Cal.2d 51, 56 [69 Cal.Rptr. 585, 442 P.2d 665]; see People v. Gilbert, 63 Cal.2d 690, 707 [47 Cal.Rptr. 909, 408 P.2d 365] [revd. on other grounds]; People v.

Roberts, 47 Cal.2d 374, 378-379 [303 P.2d 721].) Although the foregoing cases were decided prior to the Chimel decision, nothing in Chimel casts doubt upon their continued vitality. The question remains, however, whether or not the instant search was indeed “a lawful search” for additional suspects. As a general rule, the reasonableness of an officer’s conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. (Terry v.

Ohio, 392 U.S. 1, 21-22 [20 L.Ed.2d 889, 905-906, 88 S.Ct. 1868], involving police “stop and frisk” procedures.) And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or “hunches,” but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary. (Id., at pp. 21-22, 27 [20 L.Ed.2d at pp. 905-906, 909]; Sibron v.

New York, 392 U.S. 40, 63-64 [20 L.Ed.2d 917, 934-935, 88 S.Ct. 1889]; Remers v. Superior Court, 2 Cal.3d 659, 664 [87 Cal.Rptr. 202, 470 P.2d 11] [probable cause to arrest]; Cunha v. Superior Court, 2 Cal.3d 352, 355-356 [85 Cal.Rptr. 160, 466 P.2d 704] [cause to detain, “pat down,” and arrest]; People v. Collins, 1 Cal.3d 658, 662-663 [83 Cal.Rptr. 179, 463 P.2d 403] [“pat down” search].) The rationale underlying the foregoing rule is concisely set forth in Terry v.

Ohio, supra, 392 U.S. 1, 21-22, as follows: “The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. [Fn. omitted.] And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate? [Citations.] Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. [Citations.]” (See People v.

Collins, supra, 1 Cal.3d 658, 663.) In the instant case, it seems evident that Officer Galloway had reasonable cause to believe, based upon facts available to him at the time he acted, that additional persons might be on the premises. The presence of six or seven persons downstairs, four of whom bore signs of recent marijuana use, together with the immediate detection of burning marijuana smoke and the discovery of a smoking marijuana roach and two pipes lying in plain sight on a coffee table reasonably indicated that a “pot party” was in progress, involving an undetermined number of participants.

The lights which illuminated the stairway and upstairs hall justified the further suspicion that other persons might be upstairs who were involved in the offenses charged, or who might pose a security risk for the arresting officers. Under these circumstances, it was entirely reasonable for Officer Galloway to act as he did.

Galloway testified that “because of the number of defendants in the house, I believed there was a possibility of more defendants,” and the committing magistrate, in finding probable cause to commit defendant for felonious possession, accepted the testimony as true. “It is axiomatic that in considering the propriety of a motion to set aside an information pursuant to

section 995 of the Penal Code, the reviewing court may not substitute its judgment as to the weight of the evidence for that of the committing magisstrate. And if there is some evidence in support of the information, the court will not inquire into the sufficiency thereof.” (Perry v.

Superior Court, 57 Cal.2d 276, 283 [19 Cal.Rptr. 1, 368 P.2d 529].) Moreover, “ ‘The credibility of witnesses at the preliminary examination, of course, is a question of fact within the province of the committing magistrate to determine, and neither the superior court nor an appellate court may substitute its judgment as to such question for that of the magistrate.’ ” (Jones v. Superior Court, 4 Cal.3d 660, 667 [94 Cal.Rptr. 289, 483 P.2d 1241].) Our analysis of this matter is supported by Guevara v.

Superior Court, 7 Cal.App.3d 531 [86 Cal.Rptr. 657], which upheld the seizure of contraband found during a similar house search for suspects. In Guevara, the officers arrested defendant in his living room for selling heroin; one of the officers subsequently went into the kitchen and observed additional contraband.

The court acknowledged that Ckimel would invalidate a search for contraband under these circumstances, but upheld the search on the basis that the officer “had a right to enter the kitchen to' look for possible confederates of defendant.” (P. 535.) The officer’s investigation was based upon “information as to other persons which it was their right, and their duty, to follow up,” including an informant’s statement that defendant was living with a woman, that other persons frequented the apartment, and that a buyer was expected momentarily. (P. 535.) We conclude that since Officer Galloway believed in good faith that additional participants in a felony might be on the premises, and since that belief was a reasonable one, based upon facts from which he could reasonably infer the presence of such additional suspects, the search he conducted was a lawful one and authorized the seizure of the contraband found in plain sight during the course of that search.

The order dismissing the information pursuant to Penal Code

section 995 is reversed. Wright, C. J., McComb, J., Mosk, J., and Sullivan, J., concurred. Although the officers later testified that there were seven suspects, their earlier testimony fails to account for the seventh suspect. Since the magistrate dismissed the possession charges against all codefendants except Block, on the ground that the quantities of marijuana found downstairs were de minimus (People v. Leal, 64 Cal.2d 504 [50 Cal.Rptr. 777, 413 P.2d 665]), we may assume that Block was committed solely on the basis of the marijuana found upstairs in his house. In.

Chimel, the arresting officers had no reason to believe that additional suspects might be present in the house; the officers went there to arrest Chimel for a past burglary and their sole purpose for searching the house was to gather incriminating evidence against him. Thus, the court in Chimel had no occasion to consider the propriety of a search for additional suspects reasonably believed to be on the premises. Such persons could have been reasonably suspected of either felonious possession (Health & Saf.

Code, § 11530) or the misdemeanor offense of knowingly being in a place where narcotics are smoked or used (Health & Saf. Code, § 11556). The magistrate stated that “The testimony of the officer who went upstairs to the other rooms was that he did so for the purpose of seeing if there were any other suspects in the place. I think that that was a proper purpose, and was not an unlawful search ....’’ By implication, the magistrate must have determined that Galloway’s stated purpose for the search was the true and only purpose therefor.

Thus, there is no basis for holding that the instant search for suspects was a mere pretext for a search for contraband and consequently improper under the principles set forth in Terry v. Ohio, supra, 392 U.S. 1, 17-19 [20 L.Ed.2d 889, 903-905], and People v. Superior Court (Kiefer) 3 Cal.3d 807, 813-814 [91 Cal.Rptr. 729, 478 P.2d 449].