VICTOR BADILLO, Petitioner, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent.
S. F. No. 19346
In Bank
Feb. 24, 1956
March 21, 1956
46 Cal.2d 269
The orders are affirmed.
Gibson, C. J., Schauer, J., and McComb, J., concurred.
Shenk, J., and Spence, J., concurred in the judgment.
CARTER, J.-I dissent.
For the reasons stated in my dissenting opinion in People v. Martin, Crim. 5758, ante, p. 106 [293 P.2d 52], and People v. Beard, Crim. 5809, post, p. 278 [294 P.2d 29], I would reverse the judgment in the case at bar.
Edmund G. Brown, Attorney General, Clarence A. Linn, Chief Assistant Attorney General, and Arlo E. Smith, Deputy Attorney General, for Respondent.
TRAYNOR, J.-By information petitioner was charged with possessing heroin in violation of
Evidence was presented at the preliminary hearing of the following facts: At approximately 6 p.m. on January 6, 1955, federal narcotics Agents Hipkins and Casey and Officers Getchell and McKinley of the San Francisco Police Department went to a house on Sycamore Street in San Francisco. Agent Hipkins remained in front of the house, and the three other officers went to the rear. Officer Getchell knocked at the back door, which was locked, and received no response. He then forced the door open and entered the house followed by Agent Casey. Shortly thereafter, petitioner, followed closely by Officer Getchell, ran out the front door and threw a package of heroin toward Agent Hipkins, who recovered it. None of the officers had a search warrant.
In Rogers v. Superior Court, ante, p. 3 [291 P.2d 929], we held that a “defendant has been held to answer without reasonable or probable cause if his commitment is based entirely on incompetent evidence,” (ante, at p. 7) and accordingly, in such a case the trial court should grant a motion to set aside the information (
When, however, the question of the legality of an arrest or of a search and seizure is raised either at the preliminary hearing or at the trial, the defendant makes a prima facie case when he establishes that an arrest was made without a warrant or that private premises were entered or a search made without a search warrant, and the burden then rests on the prosecution to show proper justification. (Dragna v. White, 45 Cal.2d 469, 471-472 [289 P.2d 428]; Coverstone v. Davies, 38 Cal.2d 315, 319 [239 P.2d 876]; Hughes v. Oreb, 36 Cal.2d 854, 858 [228 P.2d 550]; People v. Boyles, 45 Cal.2d 652, 656 [290 P.2d 535]; People v. Gorg, supra, 45 Cal.2d 776, 782-783.)
In the present case defendant made a prima facie showing of illegal entry by establishing that the officers broke into the house without a search warrant, and the burden then rested on the prosecution to introduce evidence that the officers had reasonable cause to break and enter to make an arrest. (See
The attorney general contends that defendant abandoned the evidence when he threw it toward Agent Hipkins and that therefore he may not object to its use against him. It clearly appears, however, that defendant‘s flight out the front door and attempted disposal of the evidence was the direct result of Officer Getchell‘s illegal entry, and accordingly, the evidence was obtained in violation of constitutional guarantees. (Silverthorne Lbr. Co. v. United States, 251 U.S. 385, 392 [40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426]; People v. Berger, 44 Cal.2d 459, 462 [282 P.2d 509]; People v. Stewart, 232 Mich. 670 [206 N.W. 337, 338].)
Let the peremptory writ of prohibition issue as prayed.
Gibson, C. J., Schauer, J., and McComb, J., concurred.
CARTER, J.-----I concur in the judgment and generally in the reasoning in the majority opinion but I wish to point out that under a recent decision of the Supreme Court of the United States (Dantan George Rea v. United States of America, January 16, 1956, 350 U.S. 214 [76 S.Ct. 292, 100 L. Ed. ----]) it would seem that evidence illegally obtained by federal agents would not be admissible in a state court notwithstanding the rule announced by this court in People v. Cahan, 44 Cal.2d 434 [282 P.2d 905].
SPENCE, J.-I dissent.
Petitioner was charged with the possession of heroin in violation of
Heretofore this court has deemed it unnecessary to determine whether an arrest without a warrant under the circumstances presented here is a lawful arrest under subdivision 2 of section 836 of the Penal Code. It was so declared in People v. Brown, 45 Cal.2d 640, at page 643 [290 P.2d 528], where it was held that “the legality of an arrest is not necessarily determinative of the lawfulness of a search incident thereto.” This court further said: “Moreover, whether or not the arrest of a guilty defendant is lawful, it is clearly unreasonable if the officer has no ‘reasonable cause’ to believe the defendant guilty, and a search incident thereto can be no more reasonable than the arrest itself.” (P. 644.) Thus it appears that this court has made a distinction between a lawful arrest and a reasonable arrest. I had doubt concerning the validity of any such distinction, and it was for this reason that I voted for a rehearing in People v. Brown, supra, 45 Cal.2d 640, and People v. Simon, 45 Cal.2d 645 [290 P.2d 531]. I have concluded that the question of the lawfulness of the arrest is a material one in the determination of the present case and of other pending cases, and that it should be decided here.
“1. For a public offense committed or attempted in his presence.
“2. When a person arrested has committed a felony, although not in his presence.
“3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
“4. On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested.
“5. At night, when there is reasonable cause to believe that he has committed a felony.”
In my opinion, the arrest without a warrant in the present case was lawful under the above-quoted subdivision 2. An analysis of
In determining the lawfulness of an arrest, all subdivisions of
The question remains as to whether the search and seizure here made was reasonable as an incident of a lawful arrest.
Since the adoption of the exclusionary rule, which declares inadmissible any evidence obtained through “unreasonable searches and seizures” (People v. Cahan, 44 Cal.2d 434 [282 P.2d 905]; People v. Berger, 44 Cal.2d 459 [282 P.2d 509]; People v. Tarantino, 45 Cal.2d 590 [290 P.2d 505]), this court has been considering a series of cases presenting the question of whether searches under varying circumstances were reasonable or unreasonable. In deciding these cases, this court has been endeavoring to establish “workable rules governing searches and seizures” and is committed to the avoidance of “needless refinements and distinctions” and “needless limitations on the right to conduct reasonable searches and seizures.” (People v. Cahan, supra, pp. 450-
The inherent difficulty of establishing logical, workable, and understandable rules to supplement the exclusionary rule has been generally recognized. It seems clear, however, that in establishing these rules, we should endeavor to balance the interests of the individual with the interests of society; that we should not unduly hamper the legitimate efforts of those who are charged with the solution of the perplexing problems of law enforcement; and that we should not unnecessarily open unduly wide the avenues of escape for those who apparently have no regard for our laws except insofar as those laws may appear to provide a shield to protect them in their illegal operations. To this end we should not hold unreasonable those searches which may properly be held to be reasonable, and we should strive to formulate logical rules which will establish a consistent pattern to guide our law enforcement officers.
This court has already properly determined that a lawful arrest, accompanied by a search and seizure incident to such arrest, does not violate constitutional guarantees under certain circumstances regardless of the fact that no warrant of arrest or search warrant may have previously issued. (People v. Boyles, 45 Cal.2d 652 [290 P.2d 535]; People v. Martin, supra, 45 Cal.2d 755.) As above indicated, however, this court has held that the reasonableness of the search incident to the arrest depends not only upon the lawfulness of the arrest, but also upon the reasonableness of the arrest. It is with this conclusion that I cannot agree, for if an arrest is lawful it does not appear appropriate to declare that such lawful arrest is unreasonable.
As was said in State v. Williams, 328 Mo. 627 [14 S.W.2d 434], at page 436 [14 S.W.2d], in affirming a judgment of conviction based upon evidence obtained through a search incident to an arrest without a warrant: “As applicable to this case it would not matter a particle, when the deputy sheriff made the arrest, whether reasonable ground to believe a felony had been committed was presented to his mind or not; he is justified because the reasonable ground existed; the
If we are to formulate logical rules which will establish a consistent pattern, it appears to be illogical to hold reasonable the searches made as incidents of lawful arrests in some of the decided cases, and at the same time to hold unreasonable the search made as an incident of a lawful arrest in the present case, as well as the searches made as incidents of lawful arrests in the Brown and Simon cases. The adoption of the rules laid down by the majority opinion here and in the cited cases means that a search made as an incident of an arrest declared lawful by subdivisions 3, 4 or 5 of
While it is recognized that the guilty as well as the innocent are entitled to the benefit of the constitutional guarantee against “unreasonable searches and seizures” (People v. Cahan, supra; People v. Berger, supra; People v. Tarantino, supra), the cited cases did not present any question of the reasonableness of a search made as an incident of a lawful arrest. The claimed “unreasonable searches” or other invasions of the defendants’ rights in those cases were made over a long period of time and without any direct connection with any arrest. Here the search was made as an incident of a lawful arrest, in the sense that it was made at the time and place of such lawful arrest; and in my opinion, it should be held to be reasonable under these circumstances.
By way of summary, I am of the opinion that the arrest in the present case was a lawful arrest under subdivision
I would therefore discharge the alternative writ of prohibition and deny the peremptory writ.
Shenk, J., concurred.
Respondent‘s petition for a rehearing was denied March 21, 1956. Shenk, J., and Spence, J., were of the opinion that the petition should be granted.