*1 28, 1970.] In Bank. Dec. No. 29767. [L.A. Petitioner, HORACK, MICHAEL
DAVID COUNTY, Respondent; ORANGE OF SUPERIOR COURT THE PEOPLE, Interest. Real Party THE
Counsel
Herbert M. Porter for Petitioner. Sears, and Oretta D. Hicks, R. District Michael Attorney, Capizzi
Cecil Interest. and for Real Party District Deputy Attorneys, Respondent Opinion is
MOSK, J.This a for a writ of mandate after respondent petition Code court denied motion Penal superior petitioner’s pretrial pursuant a a Peti section 1538.5 to residence. evidence seized suppress tioner charged with the unlawful of marijuana. possession 28, 1969, Beach On June Saturday, Newport vehicle, while received Police on Department, patrol duty radio from the him that a Mrs. message informing dispatcher Riverside, Beach, had that she had Newport telephoned report seen two what she be- individuals with enter bags “hippie-type” sleeping lieved to be Of- the vacant residence located next door at 519 Riverside. address, ficer to Mrs. but his knock on Thompson proceeded Hamplin’s the door there It was that she had later established brought response. driven from her home as Officer away Thompson approached. informant, been unable to contact
Having or to ascertain that she station, was reliable and had in fact telephoned Thomp- son next and, walked to the residence at 519 Riverside another stationing rear, door, officer at the went to the front knocked on the door and identi- fied himself “Police door, Officer.” in front of by announcing Standing *4 he could see into the of room the house a living window in the through door: the room was but otherwise contained no with carpeted, furnishings of a stereo and exception large enclosure stereo receiver. The speaker receiver was turned on and he heard music loud.” There was playing “quite no to the knock response or announcement and he heard no sounds from inside the music. He tried the front and except door found it locked. to the rear of
Officer the house at which time he Thompson proceeded The Petersen. other officer who had been stationed joined by Sergeant at the back door then left. The two officers the back remaining approached door knocked. no sound was heard from the inside. Again, They tried the door and found it unlocked. Officer the door Thompson opened and, before announced “Police Officer.” He did not ex- entering, again for which admittance was desired. Still no re- plain receiving purpose both officers entered the house with their drawn. The sponse, guns was made at a The officers to conduct approximately p.m. proceeded who room-by-room closet-by-closet for the persons reportedly had entered the house. was to “as- that the reason he testified sought
Officer Thompson that did not have the authority in the dwelling if there were certain people his on the had heard no knocking he inside.” Although response to be announcements, individuals hiding; he entered “Looking or his door were in there.” me and were if they heard figured hiding that they probably a being “there possibly burglary stated that he thought might He also voir residence,” conceded on candidly he although inside committed that a was in to indicate burglary prog- nothing dire that he saw absolutely into going had never heard of vagrant admitted that he ress. He further the value of stereo with his own equipment, a house to expensive sleep $300, of had he ever heard estimated nor which he to be approximately when moved behind valuable stereo leaving any persons equipment house. indicated that the “hippie- out of a the officer appellation Finally, know did not what had no to him and he special significance type” meant she used it. Mrs. when and, of rear door into bedroom finding the house a rear opened room, in the closet was
no one checked the closet. The Thompson also rear bedroom search another empty, Thompson proceeded one, of the intruders. closet of that he then looked into the Finding closet, too, this room. was devoid Although of human occupation, closet, made an on the discovery: eye shelf important level, he saw a He little also ob- “Baggie” marijuana. containing plastic served some in the closet. the contraband with clothing hanging Taking him, Officer next searched a two and one- linen closet that was half to three feet wide and ran from the It had two floor to the ceiling. doors, double sets of and Officer was of the that the opinion bottom of the closet was into if portion get for a big enough person down; he were crouched therefore, he doors to the bottom opened shelf, On the floor, bottom above portion. he saw cardboard just box which contained a box. smaller shoe The shoe box was on top a stack of and, could papers because was at an he see angle, positioned its In contents. the shoe box he saw another which found “Baggie” to contain more and a bricklike hashish. marijuana piece *5 cardboard of the rear bed-
Officer took the box into one time, had and At this he rooms he searched on the floor. already placed floor, “bill of sale the saw some scattered the a for on papers including and offer on He left the house for sale” which had name it. petitioner’s Petersen, and, bill of sale on the checked the bath- floor with Sergeant closet, room and a third the elusive intruders. bedroom and its still seeking house, satisfied Officer himself that one was in the Having then the narcotics station and that Officer telephoned Epstein requested detail come to the house. dis- arrival, contraband already examined the Officer his Epstein
Upon found, and of the substances covered, identification confirmed Thompson’s not the house previously a search of in thorough everything proceeded in the closet of one In clothing Officer hanging searched by Thompson. a a of hashish and bedrooms, found small “Baggie” of the rear Epstein vaccination certifi- international an driver’s international permit, passport, document, name. In the cate, all and Hertz car bearing petitioner’s rental bedroom, floor, containing on found a leather pipe the he third pouch containing also found various documents and a small of hashish. He piece $12,000 and, in cash. The name of Michael Turkington apparently, 725 cash turned over to the State Board of and is not in Equalization rear, on this In the farthest to the issue bedroom petition. Epstein and found documents in the name of M. R. on the floor a small McCurdy of hashish in a of boots. piece pair
At no time the various searches or a brief surveillance during during which did followed of the nor did period any one suspects appear; find in house. any Petitioner police bags sleeping subsequently Beach, in arrested but the details of his are not Laguna arrest part record before us. presently searches, and whether subsequent sole issue is and hashish to be were marijuana turned sought suppressed, which up unreasonable in of the Fourth Amendment protection against violation case and made out a facie searches seizures. Petitioner prima he and were unlawful when established were the search seizure warrant; rested on without a the burden then prosecution made (People Haven (1963) v. Cal.2d 59 717 justification. show proper 927].) 381 P.2d Cal.Rptr. [31
With and conducted by respect discovered, the evidence he contend that the and search People believed to authorized the general were persons hiding by duty detect, of the and to investigate, crime life prevent protect Under circumstances of this case we cannot agree. property. The doctrine of relied on necessity by cases People applied People v. Roberts 721], (1956) such as P.2d 374 [303 People v. Clark 713], (1968) Cal.Rptr. Cal.App.2d [68 People 920], (1960) 182 in- Gonzales Cal.App.2d are circumstances which not in the volving emergency simply present Roberts, Thus, facts instant case. we stated that “[Neces- V. often justifies an action which sity would otherwise constitute trespass, as where the act is the motive of life prompted preserving property *6 and to the actor to be for that reasonably appears necessary purpose.” in Roberts was that (47 Cal.2d 377.) at The heard p. “necessity” police a sound from a moaning as if in distress and entered defendant’s person aid; to render evidence to be apartment sought was dis- suppressed Clark, in covered after the valid plain sight emergency entry. Similarly, because, entered the defendant’s police circumstances apartment apparent to the officers that indicated a woman within the “probability apart- was the ment (262 victim of some criminal act.” unwilling Cal.App.2d Gonzales, 471, 476.) And a officer discovered marijuana in a police search for identification in the of a man found clothing seriously injured with an abdominal wound. stabbing bench, The situation. there was no emergency
In the case comparable a containing house to be was the bare carpeted property protected imme- officers saw to indicate any stereo and the nothing system, Indeed, candidly destruction. diate threat or damage Thompson was in that he saw indicate that progress admitted to nothing burglary be would had been the most vivid imagination committed. And even situation unable contrive to human life in the danger imminent apparent their There- to Officer and Petersen entry. Sergeant prior fore, no found in the doctrine for the and search be justification may entry of necessity. be
An and search sought alternative for the justification might entry 836, 1, subdi in Penal Code sections subdivision and 844. Section vision authorizes an arrest without a warrant officer to make be ar he has reasonable cause to believe that the “[w]henever person rested has committed a offense his Section public presence.” an officers into a closed residence in order to make justifies entry by police arrest, an if to be they have reasonable grounds believing person and arrested is have admittance inside if demanded explained Thus, for which admittance might argued purpose sought. search were arrest whom the officers justified persons had of cause to believe were in their probable committing, presence, fense of unlawful would ostensibly of a Such dwelling.1 occupancy concept be consistent with Officer as to his in enter testimony Thompson’s purpose “ascertain if ing residence: to there were in the dwelling people did not have to be inside.” authority foregoing necessitates a that Officer theory showing Petersen had
Sergeant reasonable cause to believe that there were within who had entered without We con dwelling persons authority. clude, however, that the facts and circumstances the officers perceived to their could not with prior them reasonable provide requisite cause. the officers inside the dwelling, the status of
Regardless any persons were, in to believe that there have had reasonable cause must initially knew fact, at the time of their entry. inside persons scene, had re- his on the Mrs. that, some time before arrival Mrs. residence at 519 Riverside. Hamp- two enter the seeing persons ported indeed, established, and, had not been as an informant reliability lin’s who called. Never- that it was she could not ascertain with certainty officers *7 any person to enter section 602.5 makes it a misdemeanor 1 Penal Code consent of the dwelling without the any apartment remain house or noncommercial owner. so had been established theless, reliability that her assuming arguendo (see the house had entered could be certain that the officers persons 28, Hogan (1969) 890-891 Cal.Rptr. v. [80 497-498 868]; People Guidry (1968) P.2d Cal.App.2d whether the 794]), had no of persons the officers way knowing Indeed, Mrs. herself their arrival. had left the residence Hamplin prior the arrival of the between the time of her call and had left scene police. inside, he the house and looked When Officer Thompson approached one, his and announce- could see no silence greeted knocking complete the front and indications that there ments at both rear doors. The only inside the were that the radio was turned on be someone residence might However, door, closed, and the back neither of though unlocked. circumstances a reasonable inference that are these justifies pres- persons ent; when an leaves a house it is not unusual for occupant temporarily, radio, turn a but it would be unusual for an unau- him to fail to off most a musical accom- thorized intruder to call attention to his with presence Indeed, law enforcement suggest paniment. many agencies leaving publicly absent, and radio on when homeowners a deterrent to are as lights potential burglars.
But even further that there was reasonable cause to believe assuming house, were in the the officers still had no basis for to search persons for the unless had reasonable cause to believe that persons, per- case, sons were a in their this offense committing public presence—in that could be of a without only Only dwelling authority. occupancy officer, of the and not a reasonable wandering fancy interpretation here, of the circumstances could such belief. explain evidence to indicate that who be inside the persons might residence must it without came from Mrs. occupying authority Hamp- lin’s secondhand to Officer from the relayed purported report station We can assume Mrs. believed the Hamplin dispatcher. “hippie- intruders were and the house was vacant. But her view was type” strangers not corroborated officer’sobservations on scene. Officer by any Thomp- son was unable talk with to determine the for her Mrs. basis information, if but he lack of further any, opinion, despite approached residence and looked inside. He saw a room with no fur- living carpeted dire, receiver and On voir nishings an stereo he expensive except speaker. admitted that he had never heard of a out house candidly anyone moving behind; valuable stereo had he nor ever heard leaving equipment his vagrant vacant house to own stereo. entering carrying sleep Therefore, if Officer assessed the reasonably appearance room, he would concluded that the house was not front have probably
vacant—that either a new in or an owner was in the of moving process owner was residence but had moved the furniture existing temporarily from the room visible to exterior inspection. doubt, the after
According benefit of having every room, most, looked maintained, into the front he could a transitory have Nevertheless, that unauthorized he be inside. as suspicion might persons testified, he made no of the to ascertain the actual attempt ownership residence, nor to ascertain had been whether the utilities or telephone turned on. He relied belief on the apparently exclusively purport- unverified vacant, to be that of Mrs. that the house even ing though of an stereo could not be reconciled presence operating system easily with that theory. inside, to knock at both Officer Thompson proceeded
After looking officer. He heard and to himself as a and rear doors identify police front kind the music from radio. in fact no sound of any except response, were inside reinforced his belief that there this silence persons Incredibly, believed the was no he without because there response, persons authority: door; were consciously to because they were intentionally failing open hide, door, had to something namely, to he believed they refusing open Therefore, Officer without that were the house they authority. occupying room he and search every concluded should enter residence and closet in which someone might hiding. view,
In which knocks on our the silence greeted Thompson’s and announcements of added to his door nothing identity unsupported A more were inside the residence without authority. suspicion persons the house. conclusion have been that no one was inside reasonable would inside, But if the officer believed were he had no basis for assum- persons heard his and announcements and were deliberately ing knocking volume of the radio. because refusing high respond, particularly Furthermore, even and did ac if officer could believe reasonably him, believe that their silence inside would have heard tually any persons Tompkins was not indication of their of As we stated in guilt offense. any Superior (1963) Court P.2d 113], are an occu reasons other than guilt felony why “[flhere many of an not wish himself or others pant apartment may exposed present immediate view a officer. even if the stranger, stranger If of crime into refusal of to enter could convert mere permission suspicion home, cause arrest his such and search probable suspicion occupant enter, alone would and the to be free become the test of the right right from unreasonable intrusions would be vitiated its mere asser Furthermore, tion.” to seek with interviews “right suspects *9 walk in uninvited witnesses their homes does not include the to right there is no to a knock (People because ring.” merely response 713, 717; (1963) People Haven V. Shelton supra, 59 Cal.2d see also (1964) 665].) 388 P.2d 60 Cal.2d 746-747 Therefore, if Officer lacked cause to arrest oc- Thompson probable at the time he knocked on the and doors announced his cupants presence, he lacked cause at the time he entered the house as well because probable the silence of the no evidence of It is guilt. noteworthy occupants provided Haven, in Tompkins both and be the officers had reason to certain that the to were inside the and we failing dwellings, persons yet respond held that the officers were not In the instant justified guilt. presuming case, inside, Officer could not ascertain that there was Thompson anyone but he nevertheless the silence to convince him the in- permitted mythical truders were hiding. reasons,
For the we foregoing conclude and search conducted Officer by Petersen constituted an un Sergeant reasonable search and seizure in violation of the Fourth Amendment.
The officers lacked a basis for justifiable residence with entering warrant, out a and their search of subsequent the rooms and closets and seizure marijuana hashish violated the constitutional petitioner’s to right be free from unreasonable intrusions into his domain. private Therefore, the was entitled petitioner the seized contraband suppress pursuant to his motion under section 1538.5. No exists authority permitting enter into without cause private premises probable in a search for nonexistent and the fruits of such trespassers, improper conduct cannot be received in evidence.2 come to the search of the we after
Finally by premises Epstein, he to Officer call. Officer was called in responded Thompson’s Epstein detail, because he was narcotics assigned and his thorough aimed at obviously further narcotics. There was no con uncovering ceivable basis legal for his warrantless search and at oral counsel argument Indeed, for the conceded his conduct was unlawful. even if the initial invasion were sustained as a search for believed persons 602.5, Penal Code section search for contra violating subsequent band would nevertheless been have unconstitutional. the time By Thomp son called it was obvious there were in the Epstein, persons hiding house. Officer search for evidence far exceeded general Epstein’s scope disposition 2 Our unnecessary of the instant action peti makes for us to consider allegation tioner’s by additional illegal that the search because explain admittance, he failed to purpose for which as required by he desired Penal Code section 844. that would have been even if any activity Thompson’s permitted
had been legal.
aLet writ of mandate issue court case No. directing superior C-21818 to all evidence searches con- seized the unlawful suppress ducted Officers Epstein.
Peters, J., Tobriner, J.,
Sullivan, J.,
and
concurred.
alia that
hold inter
and
BURKE, J.,
The majority
Dissenting.
Concurring
and Petersen
Police Officers
and
search
the entry
subsequent
by
therefore be
obtained must
unlawful and that the evidence they
sup-
were
in
and
my
of that
and search
upheld,
The legality
entry
pressed.
was.
court,
court,
so,
and
by
superior
opinion properly
municipal
will be
of the
decision
Court of
The unfortunate effect
majority
Appeal.
officers, but
the two
to
obtained
not
evidence
lawfully
by
suppress
when a
of
neigh-
also to
home owners
deprive
adequate police protection
vacant house.
bor
seen
enter an adjacent
reports having
trespassers
court,
The
in
of the
and
ensuing
superior
legality
upholding
Petersen,
doctrine
search
and
have
by Thompson
appears
applied
Roberts,
of
The
that
v.
47
necessity.
majority recognizes
374,
721], declared,
action
P.2d
often
an
justifies
“Necessity
[303
which would
constitute a
as where the act is
otherwise
trespass,
prompted
the motive of
to the
life or
by
reasonably
preserving
appears
property
Putnam,
(Ploof
actor to be
for that
v.
member citizen,” found that court Thomp- and the specifically erty superior there, was in whether was “to ascertain anyone son’s entering purpose situation, had come back whether somebody whether we had a trespasser testi- that finding. for the weekend.” The evidence supported were was to “ascertain if there sought fied that the reason he people did have the to be inside.” in the that not dwelling authority Implicit entrance court’s is that his testimony finding Thompson’s There is no basis for the motive of prompted property. preserving Petersen’s motive differed from assuming Thompson. the legality court’s ruling in the upholding also superior
It is implicit that the to believe for the officers reasonable that it was evidence is sufficient There necessary property. entrance protect finding. support *11 from a radio message received evidence showed that The Thompson address was 521 whose that Mrs. him informing Hamplin, the dispatcher seen Beach, called and Drive, having had reported Riverside Newport residence at 519 enter the with bags two gentlemen” sleeping “hippie type be vacant. to her to was known Riverside Drive and that this residence she that thought it be inferred the fact that she called may From police and, was the next-door neighbor, since she individuals were trespassers, It would know the occupants. it to believe that she rightful is reasonable when Mrs. told Hamplin that was does not expressly appear both occurred or the call but observed individuals made apparently was him. before the information to relayed shortly ac observed criminal Mrs. was a citizen who having reported for an arrest reliance In cases cause upon tivity. involving probable held of such a citizen of a crime has been reasonable or victim report established. has not been even reliability though previously person’s 28, 888, 457 P.2d Hogan, (People v. 71 Cal.2d 890-891 Cal.Rptr. [80 794]; 495, 868]; 262 People Guidry, v. 497-498 Cal.Rptr. [68 Cal.App.2d 321]; Gardner, v. 252 324-325 People Cal.Rptr. Cal.App.2d Lewis, 579].) Simi 240 People v. 549-551 [49 Cal.App.2d Mrs. for the to upon report. here was reasonable rely Hamplin’s larly police official chan The fact that her was transmitted to through report Hogan, supra; v. People did cause it (Cf. nels not to lose its reliability. Gardner, was corroborated in People supra.) by v. And her report part his unsuccess Riverside Drive following observations of 519 front door at a window the ful to contact her. Through attempt he saw room contained no furnishings address that the living except that the home was indeed and stereo matter system, indicating carpet door was vacant.1 The stereo was turned on loud” and the back “quite unlocked, or had recently circumstances to show that the house was tending when the officers been someone. Under the circumstances occupied by identify- received no to knocks and announcements response Thompson’s believe that himself as a officer it was reasonable for them to ing entrance from harm by necessary property possible protect trespassers.
And the situation them was an as confronting emergency, superior era, vandalism, In too court found. this with all burglary, trespass common, the owner could well have had the officers merely complained walked from the house without further action re- away any taking upon identifying no knocks and announcements ceiving response Thompson’s himself. com- majority, concluding emergency presented Roberts, v. supra, People that in
parable Clark, 471, reason, supra, to be “The Cal.App.2d only property pro- tected was the bare house a stereo system, carpeted containing saw officers to indicate threat immediate nothing any damage officers, destruction.” course, Before did not know what entering, view, be stored in might the areas not then visible to their but even if was that mentioned “[t]he property protected” majority, such was worth thousands of dollars. And I am certain property manifestly *12 it would be a novel idea to most home owners that when a has neighbor seen enter an vacant house no unless trespassers exists adjacent emergency in addition the observe an “immediate threat police something indicating of damage house, or destruction.” Extensive vandalism to of nearly any course, can in occur areas not visible from the outside.
There is no merit to claim that failure petitioner’s by Thompson Petersen to with the demand and of comply explanation requirements Penal Code section 844 rendered their search unlawful. Section ensuing officer, 844 “To make an arrest ... break provides: may open superior judicial court took Newport notice that Beach is a resort area in 1 The owners, which owners absent periods, are often for substantial and that sometimes homes, upon leaving behind, their resort take some their of furniture and leave some superior the particularly surprised court stated “I am not at the fact there awas house with a stereo it . . . the purposes house was to all intents and vacant with the exception of the stereo.” majority The contrary draws an inference reasonably by superior drawn is, however, court as to whether the house was elementary vacant. It appellate that an accept court supportive must all ruling reasonable by inferences of a a trial court. 421, (People 425, Reilly, v. 3 417, 649]; Cal.Rptr. Cal.3d 1 People fn. 475 [90 P.2d Anthony, 751, v. 7 Cal.App.3d 767]; Fisher, People 762 Cal.Rptr. Cal.App. [86 v. 184 308, 461].) 2d 312 Cal.Rptr. [7 is, or in to be arrested of house which the ... person door be, after having for him to grounds have reasonable believing which they is admittance for which admittance and demanded purpose explained in enter- added.) Here, of the officers (Italics desired.” since purpose the section an but to not make arrest” ing protect property, “[t]o of necessity out is The to enter arising property inapplicable. privilege Torts, 197.) The (See Rest., in a § must be exercised reasonable manner. was reasonable. manifestly in the instant case method as a and identified himself front and back doors knocked on the and his fellow officer officer but received no He subsequently response. an unlocked through entered door. kind
The could of search reasonably officers make properly house. were in the to determine whether actually necessary trespassers Ohio, 910, 1, 889, (Cf. v. State 88 S.Ct. Terry 392 U.S. L.Ed.2d [20 Roberts, 1868]; supra, 374.) v. Cal.2d from People Here is apparent recited that the search and Petersen facts by by majority search, did not exceed that such a were not In scope. conducting they to blind themselves what was because it required plain sight simply (People was disconnected with the which v. entered. purpose Marshall, 665]; People 69 Cal.2d P.2d Roberts, 374, 379.) supra, 47 conclusion majority’s regarding by Thompson sense,
and Petersen both the law and and with contrary common to that decision I dissent. respect portion
With to the search later made of narcotics respect by Epstein detail, unlawful, I with the that his search was agree majority as conceded I argument. oral therefore concur with the insofar as it directs the court majority opinion superior suppress evidence seized in search. Epstein’s *13 J., McComb, J., C.
Wright, concurred.