Majority
Opinion
An alternative writ of prohibition was granted by this court upon petitions for writ of prohibition and mandamus following the denial of motions made pursuant to Penal Code sections 995 and 1538.5.
Pursuant to a search warrant issued by the United States District Court, law enforcement officers entered the premises at 320 University Avenue, San Jose. The warrant described the premises to be searched and the property to be searched for at the residence as “1) one mail parcel containing hashish addressed to Nancy King c/o Joe Weber, 320 University, San Jose,
Upon a search of the entire premises the officers found certain contraband including two packages containing hashish. One of these packages was addressed to “Nancy King, c/o Joe Weber, 320 University, San Jose, Calif.” and the other was addressed to “Sherry King, c/o Joe Weber, 320 University, San Jose, California.” Prior to delivery, these two packages had been found to contain hashish by the United States Customs Department. They were delivered under controlled conditions and the subject warrant was executed 36 minutes after delivery. In the affidavit for the issuance of the search warrant setting forth the discovery of the hashish by customs officers, Charles Young, a customs officer, stated that it was his experience that in cases where smuggled goods were delivered other contraband was often found on the premises.
The only attempt made by the officers to ascertain whether the persons to whom the packages were addressed actually existed or, if they did exist, were persons in control of any part of the subject premises, consisted of checking the telephone directory and the registration of vehicles parked in front of said premises. The telephone directory disclosed that a telephone was listed for said premises in the name of Marie Lopez. The record is silent as to what, if anything, was disclosed by the automobile registrations. There was no surveillance on the house to ascertain whether “Nancy King” or “Sherry King” resided on the premises.
At the time of the search, the subject premises were occupied by petitioners Joseph Lynn Weber and Marie Dalia Lopez. When the officers first encountered Weber and told him they were serving a search warrant, Weber stated “Is it because of the packages?”
One of the officers who had observed the two packages previous to the controlled delivery testified that when the officers found the two packages in the residence one of them had been opened and bore indications that it. had been retied.
Petitioners were charged with violating Health and Safety Code sections 11910 (possession of an amphetamine), 11530 (possession of marijuana), 11530.5 (possession for sale of marijuana.) and 11555 (possession of narcotics paraphernalia). They were also charged with violating Penal Code section 12020 (possession of a sawed-off shotgun).
In Marcil it was held that a warrant, issued pursuant to an affidavit such as that in the present case, authorized the search for other narcotics and narcotic paraphernalia on the premises to which the warrant is directed upon statements in the affidavit that additional narcotics and narcotic paraphernalia are often found in or on premises where controlled deliveries of smuggled marijuana or narcotics have been made. (27 Cal.App.3d at pp. 411-414.) This conclusion finds its rationale in the fact, established by other allegations, that the consignee is to receive contraband at the address to which it is consigned. This fact, in turn, furnishes probable cause to believe that other contraband is present. (27 Cal.App.3d at p. 411.)
As observed in Marcil, “A reasonable and prudent magistrate could infer that the consignee of contraband mailed from outside the United States would know that he was party to an illegal transaction and that, branded with such knowledge, it is reasonable to infer that the consignee possesses other contraband of foreign or domestic origin.” (27 Cal.App.3d at p. 411.)
The circumstance that Weber was not the consignee but a person who received the package as an agent for the consignee does not militate against the right to seize the contraband pursuant to the warrant. Having permitted the consignee to use his premises as the place for the receipt of the contraband, the recipient cannot frustrate the seizure of the contraband by claiming that he is not a knowledgeable party to the shipment. Moreover, such permission cannot frustrate the search for additional contraband if the consignee using the recipient’s premises as a place of delivery is the type of consignee whose actions furnish the inference that there is probable cause to believe other contraband under the control of the consignee will be present on the premises.
1 A hearing was denied by the Supreme Court.
Accordingly, since the officers were justified in searching for the contraband in the controlled package and for any additional contraband described in the warrant, any other contraband found in the course of such search will not be suppressed and will suffice as a basis for appropriate charges against parties, other than the consignee of the controlled package, who have possession or control of the contraband discovered in the course of the search. (Skelton v. Superior Court, 1 Cal.3d 144 , 157 [ 81 Cal.Rptr. 613 , 460 P.2d 485 ].)
Petitioners also claim that there was not sufficient evidence presented to show probable cause to believe that they violated Health and Safety Code section 11530.5 (possession for sale of marijuana). They assert that since the sole basis for the possession for sale of marijuana stems from the hashish found in the two packages, there is no probable cause to believe that they had possession, control or knowledge of the narcotic character of the contents in view of the fact that they were not the addressees and there was no evidence that they had opened the packages.
“The elements of possession of narcotics are physical or constructive possession thereof coupled with knowledge of the presence and narcotic character of the drug. [Citations.] Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. [Citation.] The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. [Citations.]” (People v. Newman, 5 Cal.3d 48 , 52 [ 95 Cal.Rptr. 12 , 484 P.2d 1356 ].) Where the charge is “possession for sale of marijuana” an additional element must be established, i.e., that the possession by the accused was for the purpose or intent of selling the marijuana. (See People v. Newman, supra, at p. 53.) This element may likewise be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (People v. Newman, supra, at p. 53.)
Petitioners’ knowledge of the character of the contents of the packages was sufficiently established by the fact that other marijuana and restricted drugs were found in the residence. Moreover, the mere possession of a narcotic by one aware of the presence of the substance constitutes substantial evidence that the possessor knew of its nature. (People v. White, 71 Cal.2d 80 , 83 [ 75 Cal.Rptr. 208 , 450 P.2d 600 ]; People v. Gordon, 10 Cal.App.3d 454 , 460 [ 89 Cal.Rptr. 214 ].) Additionally, with respect to petitioner Weber, his statement to the officers above alluded to warrants an inference of a guilty knowledge that the parcels contained contraband.
The sale purpose of the possession was established by evidence that each of the packages' contained two bricks of hashish material, each of the bricks being approximately 6 to 8 inches long and 4 to 5 inches wide; and the testimony of a police officer, testifying as an expert, that the subject hashish had a “street value” of $4,620. Such a large quantity and its large monetary
The alternative writ of prohibition is discharged and the petitions for writ of prohibition and writ of mandamus are denied.
Elkington, J., and Weinberger, J.,[2] concurred.
A petition for a rehearing was denied March 26, 1973, and petitioners’ application for a hearing by the Supreme Court was denied April 25, 1973.
* Assigned by the Chairman of the Judicial Council.
Cases cited
- People v. Superior Court 27 Cal.App.3d 404 p. 814
- Skelton v. Superior Court 1 Cal.3d 144 at 157 p. 815
- People v. Newman 5 Cal.3d 48 at 52, at 53 p. 815, p. 817
- People v. Harrington 2 Cal.3d 991 at 998-999 p. 816
- People v. Haynes 253 Cal.App.2d 1060 at 1064-1065 p. 816
- People v. White 71 Cal.2d 80 at 83 p. 816
- People v. Gordon 10 Cal.App.3d 454 at 460 p. 816, p. 817
- People v. Solo 8 Cal.App.3d 201 at 208 p. 817
- People v. De La Torre 268 Cal.App.2d 122 at 126 p. 817