THE PEOPLE, Plaintiff and Respondent, v. JOHN ALBERT JACOBS, Defendant and Appellant.
Crim. No. 25366
Supreme Court of California
Jan. 2, 1987.
February 26, 1987
43 Cal. 3d 472
THE PEOPLE, Plaintiff and Respondent, v. JOHN ALBERT JACOBS, Defendant and Appellant.
Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, and Peter R. Silten, Deputy State Public Defender, for Defendant and Appellant.
OPINION
BROUSSARD J.----Defendant appeals from a judgment of conviction of burglary, the key evidence of which was seized by officers who entered his home with a warrant for his arrest. He contends the police failed to comply with the knock-notice statute and that his 11-year-old stepdaughter did not give valid consent to the intrusion. We hold that the seizure was unlawful because the prosecution failed to show that the police had reasonable grounds for believing defendant was in the house or that they reasonably believed the child had the authority to permit the entry and search.
I. FACTS
Defendant was employed as a janitor at an automobile dealership in San Rafael from March through September 1981. The business was burglarized on September 5 and December 20 of that year, and a specially manufactured television set was stolen on each occasion. The evidence suggested that defendant was involved in one or both of these crimes.
On the morning of New Year‘s Eve, 1981, Sergeant Hasser of the San Rafael Police Department obtained a valid warrant for the arrest of defendant in connection with the burglaries. About 3:20 p.m. on the same day, Hasser and Detectives Keller and Boyd, all dressed in plain clothes, went to defendant‘s home in an unmarked vehicle to execute the arrest warrant. They did not have a valid search warrant.
Hasser and Keller knocked on the front door while Boyd observed the back of the house. Gretchen, defendant‘s 11-year-old stepdaughter, greeted the 6-foot-tall officers at the door.
There was conflicting testimony about what happened next. Hasser testified that he identified himself to Gretchen and showed her his badge. He then asked to see defendant and inquired if he could enter the house; he was standing outside in inclement weather at the time. He did not present the warrant or explain that he intended to arrest defendant. Gretchen admitted Hasser and Keller into the front room and, almost simultaneously, responded that defendant would return home in about an hour. Hasser “wanted to believe the young girl,” but he felt he had a “responsibility to check a little bit to make sure [defendant] wasn‘t just standing in one of the rooms.”
Gretchen testified as follows for the defense. She answered a knock at the door and discovered two men. When Hasser asked for defendant, she told him defendant would be back in an hour. Hasser then stated the officers “had to come in and check around . . . and see if [defendant] was there.” Without asking permission to enter, Hasser and Keller proceeded into the dining room, gave Gretchen a card, and identified themselves. The officers then searched the rest of the house as Gretchen watched from the dining room. When they returned to the front room, Detective Boyd brought them a listing of serial numbers. The officers examined the television set, removed it, and departed. About an hour later, defendant returned to the house.
On cross-examination, Gretchen testified she was babysitting her two younger brothers, aged two and five, when the officers arrived. Her older brother and parents were not home. She admitted that Hasser asked permission to enter while he was standing on the steps, and that he used a normal tone of voice, did not show her a weapon, did not frighten her, and did not push her aside in making his entry. On redirect, Gretchen testified that Hasser did not really ask permission but stated “they would have to come in and check if John was there.”
Defendant was charged with two counts of burglary in violation of
II. DISCUSSION
Both the California and the federal Constitutions prohibit police from entering a suspect‘s home to make a routine felony arrest unless the
Defendant asserts the entry violated
Sergeant Hasser testified that he believed defendant was home because the police had obtained defendant‘s address from an application for employment, had observed defendant at that address in October 1981, and had ascertained that defendant was not employed at a daytime job. Hasser reasoned: “[I]f I don‘t know . . . about someone working, being employed or otherwise, being required to be away from the residence in the daytime, then my strongest suspicion is that he‘s going to be there.”
We have previously held that “[
“The term ‘reasonable grounds’ as used in
The Attorney General‘s theory would permit arresting officers who otherwise comply with
If the officers had a hunch or a hope defendant would be home, the evidence indicates it was dispelled before they entered the house. They arrived in plain clothes and an unmarked car, and there is no suggestion defendant perceived their arrival and fled or hid. Defendant‘s vehicles were nowhere in sight. When they asked Gretchen if defendant was home, she told them he would be back in an hour. The evidence does not suggest that Gretchen‘s response or behavior further aroused the officers’ suspicions.
Sergeant Hasser was concerned because adults sometimes tell children to say “certain things,” and he felt he had a duty to execute the warrant.3 His experience with fibbing children, however, absent any indication that Gretchen was a member of that class, cannot supply the objective reasonable belief required by
to support a finding that any belief entertained by the officers that defendant was home was more than utter speculation. Although Sergeant Hasser had a duty to locate the suspect named in the arrest warrant, he had no authority to enter defendant‘s home to execute the warrant when defendant was not there because he did not have reasonable grounds to believe defendant was inside.
The Attorney General next contends the police did not violate the statute because they did not “break open the door or window.” (
By its terms,
Gretchen‘s consent was not valid and the entry must be considered a breaking unless she had the authority to permit the entry or the police reasonably and in good faith believed she had such authority. (People v. Carr (1972) 8 Cal.3d 287, 298 [104 Cal.Rptr. 705, 502 P.2d 513]; People v. Hill (1968) 69 Cal.2d 550, 554 [72 Cal.Rptr. 641, 446 P.2d 521], affd. sub nom. Hill v. California (1971) 401 U.S. 797 [28 L.Ed.2d 484, 91 S.Ct. 1106]; Bielicki v. Superior Court (1962) 57 Cal.2d 602, 607-608 [21 Cal.Rptr. 552, 371 P.2d 288]; People v. Roberts (1956) 47 Cal.2d 374, 377 [303 P.2d 721]; People v. Gorg (1955) 45 Cal.2d 776, 783 [291 P.2d 469]; People v. Carswell (1957) 149 Cal.App.2d 395, 401 [308 P.2d 852]; see People v. Jennings (1956) 142 Cal.App.2d 160, 169 [298 P.2d 56].)5 The operative word in the rule is “reasonably“; thus, there must be some objective evidence of joint control or access to the places or items to be searched which would indicate that the person authorizing the search has the authority to do so. The mutual use of the property must be such “that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” (United States v. Matlock (1974) 415 U.S. 164, 171, fn. 7 [39 L.Ed.2d 242, 250, 94 S.Ct. 988]; but see Stoner v. California (1964) 376 U.S. 483, 488-489 [11 L.Ed.2d 856, 860-861, 84 S.Ct. 889].)
The trial court did not make a finding as to whether the officers reasonably believed Gretchen had the authority to consent to the entry. The Attorney General contends the evidence shows the officers reasonably believed a child just under 12 years of age living in modern-day Fairfax, California, had reached an age of sufficient discretion to consent to a cursory police search of the family home for the purpose of determining if her parent was there. He argues this belief was supported by the officers’ observation that Gretchen was babysitting her much younger siblings. (People v. Misquez (1957) 152 Cal.App.2d 471, 479 [313 P.2d 206].)
We disagree. First, the record shows the officers entered the house before they discovered Gretchen was babysitting. Gretchen‘s role as baby-
Other courts that have considered the authority, or capacity, of a minor child to consent to a police entry of the family home generally have refused to uphold the admissibility of evidence found therein in a criminal action against the parent.6 The reasoning of these cases is sound: a child cannot waive the privacy rights of her parents. Because the evidence presented below, viewed most favorably to the prosecution, does not support a finding that Gretchen had the actual or apparent authority to permit even a superficial survey of the rooms of the house, the entry was a nonconsensual “breaking” within the meaning of the statute.
The Attorney General argues that any violation of the statute was a mere technicality which does not merit the suppression of evidence. It is
We do not suggest that consent by a minor will be ineffective in all cases in which no adult occupants are present. As a child advances in age she acquires greater discretion to admit visitors on her own authority. In some circumstances, a teenager may possess sufficient authority to allow the police to enter and look about common areas. (See Franklin v. State (1956) 208 Md. 628 [119 A.2d 439, 442].) Exceptional circumstances also may justify a search that otherwise would be illegal. For example, some courts have upheld searches made at the request of a child or when a child is the victim of or a witness to a crime.7 We do not here explore the exceptions to the general rule we announce today. Gretchen did not request the search, and she was neither a victim of the crime nor a witness to it.
The Attorney General urges us to carve out an exception for cases in which the police have an arrest warrant. We decline the invitation. The fact that a magistrate has determined there is probable cause to believe the suspect has committed a crime is irrelevant to the issue
Because the police lacked reasonable grounds for believing defendant was inside the house, their nonconsensual entry violated the statute even though the police had an arrest warrant. (People v. Bennetto, supra, 10 Cal.3d at p. 700.) Noncompliance with
The judgment of the Court of Appeal is reversed.
Bird, C. J., Reynoso, J., and Grodin, J., concurred.
MOSK, J.-I dissent.
I do not reach the issue of consent to search premises by an 11-year-old child, because in my opinion the police, armed with an arrest warrant, substantially complied with the requirements of
Defendant admits the police possessed a valid arrest warrant when they entered his house. He attempts to avoid the consequences of this concession, however, by asserting that the police “did not utilize the warrant” to gain
Defendant‘s second contention is that the entry was unlawful because it was in violation of
The police substantially complied with
The law is clear that substantial compliance with the statute is generally sufficient. (Greven v. Superior Court (1969) 71 Cal.2d 287, 291 [78 Cal.Rptr. 504, 455 P.2d 432].) Substantial compliance has been defined as actual compliance with every reasonable objective of a statute; it overlooks mere technical imperfections of form. (Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29 [22 Cal.Rptr. 657, 372 P.2d 649].) In People v. Peterson (1973) 9 Cal.3d 717, 723 [108 Cal.Rptr. 835, 511 P.2d 1187], we declared that “[w]hen police procedures fail to conform to the precise demands of the statute but nevertheless serve its policies we have deemed that there has been such substantial compliance that technical and, in the particular circumstances, insignificant defaults may be ignored.”
In Duke v. Superior Court, supra, 1 Cal.3d at page 321, Justice Tobriner noted for the majority that “The purposes and policies underlying
In this instance, the police conduct served all the foregoing policies. Three of the Duke concerns, which may be summarized as prevention of violence to person or property due to unannounced intrusions, are not implicated here, where the knock on the door was actually answered by an occupant, the police identified themselves, and the occupant was asked to lead the police through the house. There is no reason to conclude that these purposes would have been further served had the officers more fully complied with
The remaining goal of the statute, to protect an occupant‘s privacy interest, was also satisfied by the police conduct in this case. First, they obtained a warrant; its very existence necessarily casts some limitations on an individual‘s right of privacy. Second, defendant‘s home was not suddenly or violently invaded; the police knocked on the door and politely requested admittance. Finally, the police were peaceably admitted; thus there was no danger of “unexpected exposure of private activities.” (United States v. Bustamante-Gamez (9th Cir. 1973) 488 F.2d 4, 12.)
I therefore conclude that under the circumstances of this case there was substantial compliance with
I would affirm the judgment of the Court of Appeal.
Lucas, J., and Panelli, J., concurred.
Respondent‘s petition for a rehearing was denied February 26, 1987.