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Christopher Michael Houser and Forrest Susan Grubb,plaintiffs-appellees, v. James Geary, Sheriff of County of Santa Clara, Etc., et al.,defendants-appellants
United States Court of Appeals, - 465 F.2d 193
Michael Buzzell, Deputy Atty. Gen. (argued), John T. Murphy, Deputy Atty. Gen., Eveile J. Younger, Atty. Gen., San Francisco, Cal., for defendants-appellants.
Paul K. Robertson (argued), of Robertson & Hand, Palo Alto, Cal., for plaintiffs-appellees.
Before DUNIWAY and CARTER, Circuit Judges, and MURRAY,* District Judge.
DUNIWAY, Circuit Judge:
Habeas corpus. The District Court issued the writ and respondent custodian appeals. We reverse.
Houser was charged in the California Superior Court with possession of and planting and cultivating marijuana (Cal.Health & Safety Code Secs. 11530, 11530.1). He originally pled not guilty and moved to set aside the information and to suppress the evidence found in and on the premises where he resided. (Cal.Pen.C. Secs. 995 and 1538.5). The motions were denied. Houser then pled guilty to the first count (Sec. 11530) of the information. The second count was dismissed. Houser's appeal, permitted by Cal.Pen.C. Sec. 1538.5(m), raised solely the issue that the motion to suppress should have been granted. The California Court of Appeal affirmed in an unpublished opinion.
Houser's petition for a writ of habeas corpus also raises but one issue, the sufficiency of the search warrant that underlay the search. We quote the affidavit supporting the warrant and pertinent parts of the warrant in the margin.1
"On September 3, 1969, your affiant personally contacted DAVID KAY, a businessman in Palo Alto, who related that his mother owns the property, including the lot and all buildings, known as and located at 833 La Pera, Barron Park, California. He described buildings on said property as follows: a) a two-story, single family dwelling; b) a detached garage to the rear of said dwelling with a room above the garage converted for occupancy; c) a small shed converted to sleeping quarters located in the rear yard; and d) a hot house/green house attached to the shed listed as item 'c'
"He further related that during his mother's extended absence from the country, he has occasionally checked on the property to protect her interest; that said property is now rented to and has been rented for approximately 5 months to a CHRISTOPHER HOUSER; that within the past week he made an examination of the premises and observed that what had been a green house attached to a small converted shed, had been converted to a hot house by removing the lath floor and covering the green house with an opaque plastic material; that on entering the hot house he observed numerous large green plants which appeared to be recently watered; that he removed one of the plant leaves and delivered it to Sheriff's Office personnel.
"Your affiant has personally examined the above described leaf and from his experience as a narcotics officer knows it to be marijuana.
"On September 4, 1969, your affiant personally observed the property at 833 La Pera, Barron Park, California, and could see through an opening in the plastic covering the hot house growing marijuana plants.
"The aforementioned DAVID KAY and several neighbors related to your affiant that in recent weeks they had seen a person appearing to enter and leave the living quarters over the above described garage and numerous persons entering and leaving the small shed to which the greenhouse/hot house is attached.
"Your affiant has personally examined Sheriff's Office records which indicate that CHRISTOPHER HOUSER was arrested in Palo Alto, California, on July 6, 1968, for a violation of Section 11555 of the California Health & Safety Code (Possesion of Narcotics Paraphernalia)."
The search warrant provides: "You are therefore commanded, in the daytime, to make immediate search of the a) two-story, single family dwelling; b) a detached garage to the rear of said dwelling with a room above the garage converted for occupancy; c) a small shed converted to sleeping quarters located in the rear yard; and d) a hot house/green house attached to the shed listed as item 'c'."
If the court means that they had been separately rented by the owner to their occupants, it is mistaken. The only evidence is that the owner rented "the premises" to Houser. We therefore assume that the court meant, as the affidavit states, in substance, that someone was using the room over the garage, and that numerous persons were seen going in and out of the shed attached to the hothouse