Robinson

Defendant Charlie B. Robinson (appellant) appeals from a conviction for possession of marijuana.

*530 On April 25, 1983, Officer James Miller, who had been employed in the Narcotics Detail of the San Francisco Police Department, received an anonymous telephone call regarding narcotics activity. The caller gave Officer Miller appellant’s name and address and told the officer that appellant had pounds of marijuana as well as a .38 caliber gun in his hotel room at 574 Third Street, apartment No. 253, San Francisco. The officer went to the address given in an attempt to purchase marijuana. He arrived at the hotel at approximately 5:30 p.m. and went directly to appellant’s room.

On arrival Officer Miller, who had neither a search warrant nor an arrest warrant with him, knocked at the door without identifying himself as a police officer. Appellant opened the door about two or three inches before the safety chain became taut and “stuck his head around the door.” Then the officer said, ‘“Say, Charlie, what’s doing? ... I heard that something is happening up here. I was wondering if I could get a bag.’” 1 Appellant replied that he did not know what Miller was talking about and…

I respectfully dissent. Upon review of the reporter’s transcript of the evidence adduced at the preliminary hearing, the trial court’s express findings based thereon, and the incidental colloquy between court and respective trial counsel, it is manifest that the pretrial Penal Code section 1538.5 ruling is contrary to law. The judgment must be reversed.

Appellant, in the superior court, filed a “compound motion” invoking at once both Penal Code section 1538.5 and Penal Code section 995. By stipulation, appellant’s section 1538.5 motion was heard de novo based entirely on the transcript of the preliminary examination, the trial court sitting as the fact finder with incident powers. (People v. Laiwa (1983) 34 Cal.3d 711, 718 [ 195 Cal.Rptr. 503 , 669 P.2d 1278 ].) Upon reviewing Officer Miller’s preliminary hearing testimony on direct examination in light of the cross-examination, reasons, in all candor, do appear, I think, for taking a dim view of Miller’s credibility. However, the magistrate found his testimony “very credible,” stating that “I believe him”; and the presumption this court indulges is that the trial court likewise judged his credibility and believed his testimony.…

Defendant Charlie B. Robinson (appellant) appeals from a conviction for possession of marijuana.

On April 25, 1983, Officer James Miller, who had been employed in the Narcotics Detail of the San Francisco Police Department, received an anonymous telephone call regarding narcotics activity. The caller gave Officer Miller appellant's name and address and told the officer that appellant had pounds of marijuana as well as a .38 caliber gun in his hotel room at 574 Third Street, apartment No. 253, San Francisco. The officer went to the address given in an attempt to purchase marijuana. He arrived at the hotel at approximately 5:30 p.m. and went directly to appellant's room.

On arrival Officer Miller, who had neither a search warrant nor an arrest warrant with him, knocked at the door without identifying himself as a police officer. Appellant opened the door about two or three inches before the safety chain became taut and "stuck his head around the door." Then the officer said, "`Say, Charlie, what's doing? ... I heard that something is happening up here. I was wondering if I could get a bag.'" [1] Appellant replied that he did not know what Miller was…