*1 Dec. In Bank. No. 1969.] A. [L. JR., Petitioner, DUKE,
PAUL GEORGE COUNTY, OF LOS ANGELES SUPERIOR COURT Respondent; THE PEOPLE, in Interest. Real Party THE
Counsel Defender, Russell and James L. McCor Barry
Richard Public S. Buckley, mick, Defenders, for Petitioner. Public Deputy for Respondent. No appearance Lord, Robert Harry District Wood and J. Attorney,
Evelle Younger, J. Real District for Interest. Attorneys, Party Deputy Opinion filed an County of Los
TOBRINER, Attorney J. The District Angeles Jr., Duke, him charging against possession information Paul George secobarbital, violation of dangerous drug, sodium restricted entered a Health and Code. Petitioner Safety plea 11910 of the the Penаl section 1538.5 of evidence under and moved guilty suppress the tran- of the motion on to the submission Code. The parties stipulated counsel. The supe- examination argument script preliminary 1538.5, (i)) (§ and denied held a subd. rior court hearing special for an alternative filed the instant Petitioner petition motion. thereupon 1538.5, Code, (i)). subd. (Pen. writ of mandate § *4 have ordered the issuance a out peremptory
We shall
why
point
court to
motion
grant
writ
the respondent
petitioner’s
of mandate directing
search
a
the
as
result of
of petitioner’s
to
the evidencе obtained
suppress
searching
have concluded
in
We
January
home on
the
the
officers failed
with
home
petitioner’s
expressly
comply
the Penal
and identification of section
as to notice
requirements
of that
Code
failed
with
comply
requirements
and
substantially
(2) neither
of the officers’ entry;
section as to announcement of
purpose
she was
from the
given
wife
when
absent
consent of
petitioner’s
of the search excused
nor the circumstances
premises,
844;1
the search and
and
rendered
entry
section
subsequent
of the Fourth Amendment.
seizure “unreasonable” within the meaning
(Greven v.
Court (1969)
Cal.Rptr.
v. Rosales
Cal.Rptr.
Gastelo
706]; Tompkins
(1963)
432 P.2d Court 113].) 378 P.2d presented the preliminary 1. The at examination facts Amescua, Raul January hours of D. early morning with the officer Los Police interviewed Angeles peti- Department, wife, Duke, Judith at 433 Delores She tioner’s Street. complained her, that she officer that had beaten was afraid of slapped petitioner him, a bottle of red in in she observed medicine cabinet pills the bathroom which never She the officer she had seen before. gave Street, at 413 enter her house McDonald indicated that the permission to unlocked, said that was front door was asleep indicated, 1Hereinafter, all references are to the Penal unless otherwise section Code. bedroom. The officer summarized the result interview: “she me gave permission house find what these see if I to enter her out were and pills could arrest her husband for ADW.”2 his fellow
Petitioner’s wife did not Officer Amescua and accompany door, officer to about 30 her home. The officers knocked on front waited seconds, noise, heard did not themselves no other response any identify officers, admittance, as not did verbally did demand not explain admittance, unlocked purpose for which desired but opened closed door, and walked into where he was petitioner’s bedroom sleeping. officers if his Duke. name was Paul approached asking him petitioner, Petitiоner After in the affirmative. responded briefly peti- speaking tioner, residence, looked Officer Amescua went into the bathroom of the cabinet, into the on the medicine and found a bottle red containing pills third A chemist shelf. The officers under arrest. forensic placed petitioner secobarbital, restricted later identified the as of sodium pills capsules dangerous induces which drug sleep.
2. The did comply not with section terms of with the here entry question did so.3 does that it suggest General Attorney *5 arrest, Section offense 844 if the “To make an provides: person, private officer, be a break door or and in all cases a felony, may the peace open is, window be arrested which they of the in which the or in house to person be, having to demanded grounds reasonable for believing him after is desired.”4 purpose admittance and which admittance explained the for Code 2The the Penal officer’s to section 245 of apparently abbreviation referred (assault bodily injury). likely prоduce great deadly weapon with a or to with force upon, The Angeles initially petitioner officers arrested Department of the Los Police suspicion of the the of violation section Code and section 11910 of 245 of the Penal 1969, drugs). Safety (possession dangerous January Health and Municipal Code of On hearing; Angeles preliminary Court of Los conducted a Judicial District violating the court held to superior answer to court on one count of . Safety section 11910 of the and Health Code Court, 287, 290-291, v. 71 3We held in Greven Cal.2d Superior that supra, question compliance of properly with section 844 comes before us when the defendant promptly ground raises the issue suppress as for motion to evidence under section and seeks appropriate extraordinary upon 1538.5 relief denial of this motion. 4Section 844 quite protections derives from law right ancient common of the (1958) homeowner. Miller v. United States 357 U.S. 306-308 L.Ed.2d 1332, 1336-1337, 1190]; 78 S.Ct. v. Accarino United (1949) States 179 F.2d App.D.C. 460-462 Blakey, The Rule Announcement Entry: Miller United (1964) States аnd Ker Unlawful U.Pa. California 499, 500-508; L.Rev. Kaplan, Search and A No-Man’s Land Seizure: in the Criminal (1961) Law 498-503.) 49 Cal.L.Rev. counterpart to section 844 (Italics waited no more than added.) knocked and officers door;5 unlocked they seconds before the closed but opening (1) utilize failed to knock or they with the terms of section 844 in to notice of presence other calculated give adequate means reasonably officers, to themselves as to identify occupants, admittance. of their demand for exрlain purpose Rosales, 289;
Court, supra, supra, 299, 302.) with the absolute
This cannot comply court has held that the police other utilizing knocking without minimum section 844 required of their means notice presence calculated to reasonably give adequate (Greven v. officers. themselves as identifying occupants have, however, We 291-292.) supra, as to found of section substantial requirement identified which the statement of in some cases in purpose but did entering, before expressly themselves and admittance requested state the of thеir for admittance. purpose request Rosales, 299, 302, we identifi held
In with the requirement cation could constitute substantial compliance alone surrounding if only section 844 as to statement purpose circumstances clear to occupants. made the officers’ purpose when the section found that did not comply statutes. similar enacted jurisdictions have 1531 for searches with Other warrants. 3109; States, supra, (See, U.S. e.g., v. United § U.S.C. Miller Announce 1332, 1337-1338, Blakey, The Rule 78 S.Ct. fn. ment and L.Ed.2d California, Entry: Ker v. v. United States Miller Unlawful has sеrved 508-514.) provision in its form This U.Pa.L.Rev. (Amend (See Stats. 1873-1874 protect privacy since 1874. of California citizens 435-436.) Codes), ments at § ch. *6 303, and v. People supra, Sabbath 5 The decisions in v. Cal.2d 833-834, S.Ct. (1968) United States L.Ed.2d U.S. 589-590 [20 1755], but door through an unlocked closed beyond make clear that entrance doubt Court, supra, Superior v. comply or screen door must with section 844. In Greven 287, 294-295, held, in v. (1968) 71 Cal.2d 263 Cal. overruling Cox 410], through Cal.Rptr. propped-open App.2d police that if the entered [69 house,- an door to of the then inner such entrance explore part opened back door constituted “breaking” of meaning purposes within section 844. On problem fraudulently v. United States obtained entrance see Gouled require police purposes L.Ed. section 844 261]. U.S. S.Ct. admittance, knock, demanding entry demand even if to and state their reason for occupants police open need not an door If cannot outside in order to enter. immediately identify police may the intruders as sound of intrusion itself dangerous police. cause confrоntation between the citizens and the admittance or to their identified themselves but failed to request explain Court, 71 Cal.2d Greven Superior purpose. seconds, door, waited 10 to 15
case which the on in police rapped door, and went into a received the closed but unlocked no response, opened at the and one was reading house where several were asleep person people “achieved, in table, be kitchen cannot we held that substantial cоmpliance the absence of statement of to authority entry.”6 prior with the absolute
Hence, police the instant case did not admittance did not demand minimum section 844 in that they required by Court, supra, and state their prior authority. to entry Furthermore, 71 Cal.2d even if the had met these police requi sites, an explanation this case would required circumstances of could of a house or apartment in a case in which an purpose. Only occupant know the of the be to visit without purpose rеasonably expected police notification, admission accompanied demand for haVewe found that a mere with the substantial á statement of constituted by compliance authority of section 844. v. Mar requirement explanation purpose 585, 442 P.2d shall 55-56 Cockrell 665-666 408 P.2d Martin 855].) case does not indicate the failure any justification for their as to announce section 844. required by purpose
Although
his wife a few
had assaulted
hours before the
petitioner
secobarbital,
for
some sodium
arrived and
apparently
petitioner possessed
use,
his
before the
arrived.
gone
long
own
sleep
indicates that
have divined their
Nothing
wishing
he could
purpose
might
in the
police substantially
6 One
contend that the
section 844
complied with
entering peti
by knocking
waiting
response
instant case
30 seconds for a
before
287, 295, however,
tioner’s home.
Greven
holds that the
requires
absolute minimum
with section 844
both
prior
to knock and to
authority
entry.
state
their
knocking
If the
people
sleeping
enter a house in which
without first
are
stating
authority,
may
occupants
be awakened
the sound of intruders
breaking
moving through
frightened
down the front door and
the house. The
home-
might respond by attempting
protect
occupants;
might
owner
his home and its
he
provoke
hand,
thereby
unnecessary
police.
an
conflict with the
On the other
if the
police use
reasonably
give adequate
sleeping
means
calculated to
notice to the
occu-
*7
pants (cf.
Mullane v. Central Hanover Bank & Trust Co.
321 had not been in Petitioner identity. their if had announced enter even (Com the before he went sleep. with the evening during contact 18, 29-30 Cal.2d v. De Santiago People pare 755, Martin, 45 Cal.2d 353], supra, with 809, 453 not, dealing drugs that 762-763.) evening, engaged He was during an informant. be one whom might with a number of of strangers, Cockrell, Marshall, 51; supra, supra, Cal.2d by the was not excused consent Compliance with section 3. оf the petitioner’s premises, by the search belief of by wife conduct peril, would have increased furtive of occupant premises of fully neither complied have concluded the police
Although nor all section 844 substantially complied of requirements we must still consider whether section’s statement of purpose requirement, search her home of wife of or other consent petitioner’s such excused circumstances purposes policies compliance. (1) the of of section 844 are fourfold: underlying protection privacy States, supra, (see the individual v. United 391 U.S. in his home Sabbath States, 828, 833, 585, Miller v. United L.Ed.2d 88 S.Ct. 589 [20 U.S. 78 S.Ct. supra, 357 L.Ed.2d 287, 292; Court, 71 Cal.2d Greven v. supra, (2) the 6]); Maddox 46 Cal.2d protection innocent where an arrest also be on persons who may premises Rosales, (see 299, 304); (3) the supra, made People v. violent confrontations situations which are conducive to prevention without between the enter his home proper and individuals who occupant 292-293; notice supra, States, 589; Miller v. United suprа, see Sabbath v. United U.S. States, S.Ct. U.S 301, 12 L.Ed.2d fn. 304; 1190]; People v. and fearful a startled
protection be might by who injured householder. themselves,
In a case in which the did identify not demand entrance, admittance, and did not state the for reasons their demand for consent to search an absent would cotenant promote policies underlying absent could not waive the spouse right her (See Tomp- husband who was privacy then occupying premises. *8 Court, If the husband had 69.) kins v. Cal.2d and and had heard intruders enter his home without awakenеd explanation force to invasion with reasonable a homeowner use may the the responded house, in in the children were the two who night expelling young prowlers, Code, (Pen. have suffered the the homeowner injury. police, might 692-694; Perkins, 1969) (2d (self- Criminal Law ed. 995-1018 see §§ others), defense); (defense of of (defense 1018-1022 1022-1025 habita- hand, tion).) the if the had identified themselves and On other stated police would been the of confrontation authority, danger drastically Code, 834a; reduced. (Pen. see § Curtis 33].) the wife who is absent from the consent to search premises affect, reduce, of does not or the confrontation between way danger in any the homeowner the to right and the intruder. Section 844 protects privacy of the the the where seek premises entry; right who person occupies police wife, is to the even when his cotenant who occupant present, adheres consents to a search. 65, 69, one of two Tompkins
roommates of when he was absent from the gave an premises, apartmеnt, the full the historical the After a discussion of to keys apartment. rights tenants, of “A we concluded: joint occupant’s cotenants joint of another with right home is not at of mercy in his privacy completely hold whom he Accordingly, shares legal possession. [Citations.] one not authorize joint occupant away who is from premises may another enter joint to and search the over premises objection case, no time, is where this who at the at least as in occupant prior present еxists, even to disclose is and the fails warning given, no officer emergency he him that has purpose occupant his who or to inform Tompkins consent of the absent occupant reasoning enter.”7 control, or that a in common conclusion person ownership compels wife, such consent such cannot as who is not within the give -premises from enter and excuse the complying search as to premises (1964) 60 (See People v. Shelton of section 844. requirements 665], in which we his that a tenant outside thе door of joint held apartment not waive could right occupant.) privacy common, tenants, joint may property 7“A hold as tenants husband and wife Code, (Civ. community as characteristics of property.” Whatever various § tenants, common, holding property joint these methods of in tenants between tenants tenant, landlord and (see or husband wife copartnership, generally, Thomp seq., seq.; Armstrong, Property son on Real 1070 et California §§ 1029 et (1953, Law 585 et we cannot draw Family Cum.Supp.) seq.), any § rational ownership control which distinction between the various sorts of common affect the would application policies section 844. *9 323 844, as its as well with section have excused We noncompliance officer, his before which the 1531, entry, .in in cases companion that to believe reasonably compliance led him possessed information which v. (People Smith frustrated the arrest. his or would have increased peril 222]; People 409 P.2d (1966) 63 Cal.Rptr. [48 365]; 408 P.2d (1965) 63 Cal.2d Gilbert Cal.Rptr. [47 People Hammond 54 Cal.2d [9 P.2d 289]; 51 Cal.2d 99] P.2d v. Carswell which а adduced no facts from has In the case the prosecution with that faith belief compliance could have formed a good officer police frustrated arrest. his or section 844 would have increased peril 902, 450 P.2d 381, 384-385 v. Kanos 70 Cal.2d 299, 303-304.)8 this court the and in briefs before 8 Although Appeal in briefs before Court justify the upon wife’s consent Attorney completely relied General 844, the requirements of section the knock and notice officer’s failure to with suggested compliance with argument first time that Attorney sеction 844 was excused because of at oral for the General Attorney General emergency circumstances. The deadly a charged with assault with contended that had been because the husband institution, might have weapon and at because he had been treated a mental Although need not consider dangerous person. that the husband was a concluded this peti the court or the Attorney apprise issue because of the failure to General’s 22; (see prior argument Rules rule tionеr of his contention Patten v. to oral Cal. County Diego (1951) Cal.App.2d Lotts v. San 215]), we find that Cal.App.2d Board in Park Comrs. any event the contention lacks merit. First, nothing petitioner in the record indicates that the had assaulted his wife with anything might conceivably great more than his hands in a manner which have caused Code, 245; (Pen. Cal.Jur.2d, 10-11, bodily Battery, § §§ harm. see 5 Assault and 312-317.) Attorney suggested petitioner possessed, at The has never that the General used, any weapon exposed would have offensive that would have danger fact, they complied additional if had section 844. officers knew they premises capsules when entered apparently that defendant was asleep and had earlier consumed two peti- secónal .to overcome his The knew insomnia. that Further, tioner was under care Hospital at Harbor General for that condition. they admitted that they did not believe petitioner escape complied would if with section 844. On no occasion did the officers indicate that believed complianсe with section 844 would significantly endangered security. Nor does the factual any situation disclose danger. such additional wife also told the officers that her patient husband had been “a at Norwalk Hospital State hospital and that he never returned Hospital. to Norwalk State That is a mental ....’’ mere fact that had once been treated at a mental hospital or possibly even had left hospital permission a mental without would not excuse Kanos, compliance with section 844. We have held in escape that an custody from does compliance the fact that the not excuse People Rosales, supra, section 844. In officers 299, 303-304, seeking violator, were parole “fugitive justice,” from did not excuse compliance with section Clearly, person who had received treatment in a
We have
with sections 844 and 1531 to
also excused prevent
*10
there
destruction of evidence in narcotics cases in which
specific
387,
v. Carrillo
64 Cal.2d
(People
of furtive conduct.
shоwing
185,
around
(defendant
412
rushing
Cal.Rptr.
[50
377]
Maddox,
knocked,
house);
(officers
supra,
inside
The instant case demonstrates the wisdom of restricted but the petitioner allegedly possessed dangerous drugs police could that an unannounced not show was entry necessary prevent v. De 71 Cal.2d destruction of evidence. (See People Santiago, supra, bedroom, Since the knew was in his police sleeping furtive conduct. could not establish justification сonceivably Hence, not create a circumstances of search could factual specific which, because of reasonable belief of the officers on part police .evidence, discouraging the destruction of necessity escape, for preventing would excuse the failure of the officers’ safety, insuring v. Hamilton (1969) with section 844. (See comply v. United see also Sabbath 828, 834, 88 States, 585, 591, fn. 8 L.Ed.2d S.Ct. 391 U.S. supra, 726, 746, L.Ed.2d Ker v. 374 U.S. California (opinion Brennan, J.).) 83 S.Ct. 1623] unreasonably petitioner’s privacy invaded the officers rights violated Fourth his Amendment did concluded that the Since we have comply his does not lose hospital escaped from such an institution mental or who had in the absence intrusions by unreasonable against right privacy reasonable, good faith belief could form a specific facts from which A citizen who impose substantial additional risk. with section 844 would illness, placed been on paroled, has been or has has received treatment for mental against right an probation, thereby automatically protection lose his does not unreasonable search and seizure. with the of section 844 excuse for requirements any possess section, failing to with that we must hold that an effected in entry violation of the of section 844 or its section 1531 provisions companion renders search and seizure “unreasonable” within the any subsequent Fourth Amendment. meaning 287, 290; 304-305.)
As an unexcused failure to fulfill the knock and consequence, notice delineated section 844 nullifies the search and requirements subsequеnt requires exclusion of the evidence (Mapp obtained. v. Ohio 643, 655, U.S. L.Ed.2d *11 81 S.Ct.
A.L.R.2d 933]; 296, 299; Benjamin, supra, Hamilton, 176, 178; v. De Santiago, supra, 18, 30; Kanos,
Let a writ mandate issue peremptory court to directing respondent grant motion to petitioner’s the evidence obtained as a result of the suppress search of petitioner’s premises conducted on January J., Peters, J., C.
Traynor, Sullivan, J., concurred, MOSK, J. I dissent.
The majority recited the correctly of law underlying principles controlling of this case. And I have with the basis disposition no quarrel for the legislative еnactment of Penal Code section 844 and the general desirability therewith. There are a number of undoubtedly punctured bodies occupying because defenders of cemetery today plots their own castles were unable to between unidentified law distinguish enforcement officers and unauthorized intruders.
However, in this instance the detour some relevant majority deftly past factual circumstances and therefore law to arrive at an misapply existing erroneous destination. wife, officer аrresting testified that the defendant’s in making
complaint for felony assault with a informed him “that he deadly weapon, came home that night and into an he her they got then argument, slapped and choked her unconscious, until she became and then she observed her dead, dog was from an possibly overdose of She also advised pills.” police officer that her husband had been a at Norwalk State patient institution,
Hospital, a.mental he not returned to the hospital. An inference could be drawn therefrom that he was an aor escapee psychiatric parole violator. wife not officer to only “requested” enter defendant, the house in order to arrest she advised officer that “the door was front unlocked.” door, they the front
When officer and his approached partner but with section 844 extent of complied knocking their themselves in the darkness because “no one answered” identify silent Knowing knock. If one themselves? no to whom do responds, they identify the wife had left door unlоcked in order to facilitate purposely officers entered the defendant under entry, the the premises placed arrest. Cal.2d 65 Tompkins Court *12 113], we concluded that a who is from joint away occupant
premises not authorize officers to enter and search the may premises time,” as “over at the objection of another who is joint occupant case, had in that where exists.” There the joint “no emergency occupant wife, a been and arrested Here the sought poliсe. joint occupant, to enter she only authorized and search premises, entry there was no made the contact and initial affirmatively request, Tompkins made other Thus over objection joint occupant. distinguishable. did, however,
Tompkins (at the existence of an refer “emergency” p. 69), and other cases suggest that with section 844 bemay noncompliance excused if there are “exigent circumstances” Court 504, 455 P.2d I 432]). [78 Cal.Rptr. would find the a significant to be following congeries exigent circum- wife, stances: in the hours the early morning joint occupant premises, out and sought affirmatively enter and requested defendant, search the and to arrest the her the other premises spouse; defendant, accused of a been occupant premises, felony violence—assault involving the defendant had deadly been weapon; a mental patient in have been or may an hospital escapee psychiatric violator; parole the wife defendant killed may dog reported night, defendant was known to have dangerous in his drugs facts justified control. The foregoing under his immediate possession ritualistic omitting officers in arresting would for writ of mandate.
I deny petiton Burke, J.,
McComb, J., concurred.