Mesaris

I dissent.

I would affirm the judgment. I do not agree with the majority that the contraband was obtained as the result of an unconstitutional search and seizure. The officers made a consensual entry for the purpose of investigating information obtained from a citizen informer as to possible criminal activity. Penal Code section 844 is inapplicable to such an entry. (See Mann v. Superior Court, 3 Cal.3d 1, 8-9 [ 88 Cal.Rptr. 380 , 472 P.2d 468 ].) I do not agree that the entry was obtained as a result of trickery or subterfuge. *77 The police knocked on the door and asked for the Sears repairman. Defendant Huff’s action in stating “he is in the kitchen” and pointing in that direction was clearly a consent and invitation to the officers to enter. The majority’s reliance upon Roberts and Hodson to support the conclusion to the contrary is misplaced. Neither is authority for the proposition that the entry in the instant case was obtained by trickery, stealth or subterfuge. The announcement requirements of section 844 were not applicable under the facts of this case. (See Mann, supra; People v. Boone, 2 Cal.App.3d 66, 68-70 [ 82 Cal.Rptr. 398 ].)

Appellant’s petition for a hearing…

Leroy Allen Mesaris appeals from a judgment (order granting probation) following his being found guilty of possession of marijuana for sale. (Health & Saf. Code, § 11530.5.) The sole basis for the appeal is that the marijuana was obtained by the police by an unconstitutional search and seizure. We agree and reverse.

The Facts

About 3:15 to 3:30 p.m. on February 2, 1969, Sergeant Brennan of the Narcotics Division of the Los Angeles Police Department informed Sergeant Odom and Officers Lopez and Meyers that he had received a telephone call from a Mr. Konopasek who stated that while repairing a refrigerator for Sears at 1771 Laurel Canyon Boulevard he had found two bags containing ' a substance which appeared to be marijuana and that since he was scared of the consequences the police should ask directly for him and should not identify themselves to the people there.

The three officers in civilian clothes proceeded in about an hour to the location without either a search or an arrest warrant. Sergeant Odom knocked on the door and asked for the Sears repairman. Codefendant Laurie Ann Huff, who had responded to the knock, said, “he is in the kitchen,” and pointed in its…

Leroy Allen Mesaris appeals from a judgment (order granting probation) following his being found guilty of possession of marijuana for sale. (Health & Saf. Code, § 11530.5.) (1a) The sole basis for the appeal is that the marijuana was obtained by the police by an unconstitutional search and seizure. We agree and reverse.

About 3:15 to 3:30 p.m. on February 2, 1969, Sergeant Brennan of the Narcotics Division of the Los Angeles Police Department informed Sergeant Odom and Officers Lopez and Meyers that he had received a telephone call from a Mr. Konopasek who stated that while repairing a refrigerator for Sears at 1771 Laurel Canyon Boulevard he had found two bags containing a substance which appeared to be marijuana and that since he was scared of the consequences the police should ask directly for him and should not identify themselves to the people there.

The three officers in civilian clothes proceeded in about an hour to the location without either a search or an arrest warrant. Sergeant Odom knocked on the door and asked for the Sears repairman. Codefendant Laurie Ann Huff, who had responded to the knock, said, "he is in the kitchen," and pointed in its…