IN RE: Joe STERLING et al. on habeas corpus.

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District Court of Appeal, Second District, Division 2, California.

IN RE: Joe STERLING et al. on habeas corpus.

Cr. 10320.

Decided: June 22, 1965

Walter L. Gordon, Jr., Los Angeles, for petitioners. Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., Wm. R. Yates, Deputy City Atty., for respondent.

These are misdemeanor gambling cases originally brought in the Los Angeles Municipal Court. Throughout the trial and on appeal the principal defense was the claim of an illegal search in violation of the state and federal Constitutions. We conclude (1) that petitioners have been convicted on evidence obtained by means of an unlawful search in violation of the state and federal Constitutions and (2) that habeas corpus is an appropriate remedy to vacate judgments of conviction secured through the use of unconstitutionally-seized evidence, and that in these cases relief under the writ should be granted.

History of the Raid

Prior to petitioners' arrests, police officers had received information through an anonymous phone call and through undercover operators and informers that professional gambling was again being conducted at the Westside Social Club on premises formerly used as a Safeway store. Arriving at the location about 1:30 a. m., the police found many parked cars on the lot and on the street, and saw persons, usually solitary males, approach the front door, hold short conversations at a window, then pass through an outer door, and thereafter through an inner door. After observing these activities, police officers went to the rear of the building, placed theirs ears against the wall, and were able to hear the following: ‘I'm coming out for a point.’ ‘Who's going to cover me?’ ‘I will take five bucks of that.’ From this and similar conversation the officers deduced that a dice game for money was taking place inside. They could not, however, identify any of the voices.

The police officers next climbed a ladder to the roof of the two-story building and made a hole in the roof approximately two and a half feet square by forcing up the wooden roof with a crowbar. Through this hole in the roof the officers were unable to see any of the players inside, only the ceiling below the roof, but by lowering themselves into the attic and looking through a vent in the ceiling, they were able to observe petitioners standing around a pool table engaged in shooting craps. One petitioner was seated at the pool table acting as houseman for the game. Another petitioner entered the room, went to the pool table where he was handed an unknown amount of money, and then left the room. Three petitioners stopped shooting craps, sat down at one of several card tables, and began playing cards for money.

To obtain a better view, the police then moved from the attic to an upstairs office which overlooked the main room, and after making a hole in the office partition the officers resumed their observations of activities in the room below. According to the arrest report these observations continued for approximately twenty minutes.

Thereafter, upon a prearranged signal by these officers their partners forced entry through the front door. Gambling equipment was seized, and all petitioners were arrested.

Petitioners contend that the direct evidence of their gambling was obtained by police officers as a result of an illegal search in violation of the Fourth and Fourteenth Amendments to the United States Constitution and of Article I, section 19, of the California Constitution.

The City Attorney replies that the evidence was properly admissible because it was obtained as an incident to a valid arrest made with reasonable cause to believe that a public offense was being committed in the presence of the arresting officers.

We untangle this skein by first considering the question of reasonable cause to make an arrest, thereafter the circumstances which justify forcible entry to make an arrest, and then the question of permissible search incident to an arrest.

Reasonable Cause to Make an Arrest

A police officer may make an arrest whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence. (Penal Code, § 836(1).) Gaming is a public offense. Presence is not limited to propinquity but is liberally construed to comprehend any crime which is apparent to the officer's senses. (People v. Burgess, 170 Cal.App.2d 36, 41, 338 P.2d 524; People v. Bock Leung Chew, 142 Cal.App.2d 400, 402–403, 298 P.2d 118.) In the present case as a basis for reasonable cause we have (1) the anonymous phone call that professional gambling was being conducted at the Westside Social Club; (2) the knowledge of the officers from past arrests, undercover operators, and other informants that professional gambling had been conducted at these premises during the past year; (3) the observations by the officers of the entry of individual males into the club at 1:30 a. m. and their manner of entry; and (4) conversations directly overheard by the officers which strongly indicated that craps were being played for money. We agree with the City Attorney that the arresting officers had reasonable cause to believe a public offense was being committed and being committed in their presence. (People v. Hen Chin, 145 Cal.App.2d 583, 587, 303 P.2d 185 citing Pacetti v. State of Georgia, 82 Ga. 297, 7 S.E. 867.)

Forcible Entry to Make an Arrest

Being satisfied that the police officers had reasonable cause to make arrests, we take up the second point, what methods were permissible to the police officers to effect their arrests.

The persons to be arrested were inside the building, and the persons to do the arresting were outside the building and therefore squarely faced with the problem how they could reasonably and constitutionally get inside in order to make their arrests. According to the early rule at common law, adopted by statute in California, they would have been first required to demand admittance and explain the purpose for which they desired admittance, and only after such demand and explanation would they have been privileged to break in to effect their arrest. (Penal Code, § 844.)

However, to the rule at common law a number of exceptions developed, arising out of danger to life and limb, danger of escape, and danger of destruction or concealment of evidence during the period of delay caused by the demand and explanation. Experience demonstrated that in certain types of crimes if demand for admittance and explanation of purpose were made known prior to entry, the evidence of the crime might be entirely disposed of. This is certainly true in narcotic cases and is likely to be true in most gambling cases. Indeed in this very case, according to the arresting officers' report, a sign inside the premises told patrons what to do in case of a police raid.

Because of these practical considerations the common law exceptions to the original requirement for demand and explanation came to be acknowledged in California, and the police were authorized to force an entrance without demand or explanation when they had reasonable grounds to believe that otherwise evidence would be destroyed or the danger to the arresting officers increased or the person to be arrested make good his escape if demand were made and purpose explained. (People v. Maddox, 46 Cal.2d 301, 305–306, 294 P.2d 6.) These common law exceptions have been read into the specific language of Penal Code § 844 by the California Supreme Court, and their constitutionality sustained in a five-to-four decision by the United States Supreme Court. (Ker v. State of California, 374 U.S. 23, 37–41, 83 S.Ct. 1623, 10 L.Ed.2d 726.)

This rule of ‘exigent circumstances' (Ker, p. 40, 83 S.Ct. 1623) is a rule of reason involving some relaxation of Section 844, in order to meet situations where announced entry might be dangerous and delayed entry would probably result in destruction of evidence. Curiously enough, most of the California cases which apply the exceptions have involved fact situations where some demand has actually been made. (People v. Maddox, 46 Cal.2d 301, 294 P.2d 6 (police knock on door, sound of retreating footsteps, door then kicked in); People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (police demand that door be opened); People v. Foster, 199 Cal.App.2d 866, 19 Cal.Rptr. 283 (police rang doorbell, sound of running footsteps); People v. Fisher, 184 Cal.App.2d 308, 7 Cal.Rptr. 461 (police knock and identification, sound of running); People v. Williams, 175 Cal.App.2d 774, 1 Cal.Rptr. 44 (police knock, sound of rushing); People v. Steinberg, 148 Cal.App.2d 855, 307 P.2d 634 (police identification); People v. Moore, 140 Cal.App.2d 870, 872, 295 P.2d 969 (demand for admittance, running, door then forced).) In the last case Mr. Justice Ashburn pointed out that the right to break down barriers is recognized (1) in order to make an immediate arrest, and (2) to save evidence from destruction.

Accordingly, with the information which the police had obtained in this case they would have been privileged to make an arrest without prior demand or explanation and to use any appropriate means to effect as rapid an entry as possible in order to prevent probable destruction of evidence of gaming and of equipment used for that purpose. The officers could have forced an entry through the front door, or surreptitiously entered by means of a pass key, or entered quietly through a window, or used other appropriate means to get inside the building to make their arrests as quickly as possible. Noncompliance with the requirement for demand and explanation would have been justified by the need for speed.

Search Incident to an Arrest

This brings us to our third question—what search may be made as an incident to a lawful arrest.

A search is, of course, a different thing from an arrest. Normally it can only be made on a search warrant particularly describing the persons and place to be searched, the persons or things to be seized, and which has been issued on probable cause supported by oath. (U.S.Const., Fourth Amendment; Calif.Const., Art. I, § 19.) Once again an exception to the literal rule has been recognized by implication and reason, and it is now well understood that a reasonable search may be made of the person arrested as well as the premises under his immediate control in which the arrest takes place. (United States v. Rabinowitz, 339 U.S. 56, 61, 70 S.Ct. 430, 94 L.Ed. 653.) The rule as now formulated is that a search may be made (1) pursuant to a search warrant, or (2) as an incident to a lawful arrest. Yet the Constitution still prohibits ‘unreasonable’ searches (Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183). Any search without a warrant not strictly incident to an arrest cannot be justified by the arrest and will fall within the proscribed classification of a general search and seizure denounced in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.

A search incident to an arrest requires that the defendant be on the premises (Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856); that the search be made at the time of the arrest (Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777), immediately before or after the arrest (Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36); and be confined to the immediate vicinity of the arrest. (Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Castaneda v. Superior Court, 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Cruz, 61 Cal.2d 861, 40 Cal.Rptr. 841, 395 P.2d 889.)

Forcible Entry to Secure Evidence

If we pause a moment to see where we are, we find that both the law relating to search and the law relating to entry to make an arrest consist of a general rule and an exception.

With respect to search, the general rule requires a search warrant, to which there is the exception of a search incident to a lawful arrest.

With respect to entry to make an arrest, the general rule requires demand for admittance and explanation of purpose, to which there is an exception in case of the need for speed, when conditions are dangerous or evidence is about to be destroyed.

In the present case the City Attorney has taken the exception in the law of arrest, which permits forcible entry in cases where there is a need for speed to prevent destruction of evidence, and imported it into the law of search, where he attempts to justify a forcible entry to search because an arrest is ultimately contemplated. In our view he has put together a jerry-built structure by using a concept which permits forcible entry where the need for speed exists to justify a forcible entry where speed is not a factor at all.

The testimony in this case clearly indicates that the forced entry through the roof was designed to secure a station from which further evidence could be harvested, to gain a place of vantage so that the gamblers could be individually identified. (Tr. pp. 15, 18, 21, 22.) The forcible entry, the breaking into the roof with a crowbar, was not made to effect an arrest nor to prevent destruction of evidence but rather to obtain specific evidence against particular individuals. The entry from the roof was not directly related to the arrests at all, for twenty minutes later other officers effected an entrance through the front door and made the actual arrests. Nor was it a stratagem to secure an unobtrusive entry for the purpose of making arrests, as might be the case where a door was jimmied quietly or a window silently pried open in order to get into the building quickly. Rather the entry through the roof was the initial step in a process of exploration which first involved visual observations from the roof, next entry into the attic and the establishment of a lookout post at a vent in the ceiling, and finally exploration of an upstairs office and the making of a hole in a partition in the office to set up another observation post. In no genuine sense can it be said that the forcible entry through the roof was incidental to the arrests. Rather the breaking and entering appears to fall within the category of those exploratory searches prohibited by the state and federal constitutions. In this connection the comment of the Supreme Court by Mr. Justice Stewart in Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734, is appropriate: ‘The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Entick v. Carrington, 19 Howell's State Trials 1029, 1066; Boyd v. United States, 116 U.S. 616, 626–630, 6 S.Ct. 524, 530–532, 29 L.Ed. 746. This Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard.’

It is true that here the police had reasonable cause to believe that a crime was being committed, and in this respect this case differs from those in which the police attempted to justify their search by what later turned up. (People v. Brown, 45 Cal.2d 640, 290 P.2d 528; Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288; People v. Regalado, 224 Cal.App.2d 586, 36 Cal.Rptr. 795.) Yet reasonable cause to believe that a crime is being committed is not sufficient excuse to justify a forcible entry to search for further evidence. Forcible entry is only justified to make an arrest, and a search after a forcible entry may only be justified as an incident to the arrest. The arrest itself may not serve as a smoke screen for an exploratory search without a warrant. (Ker v. State of California, 374 U.S. 23, 42, 83 S.Ct. 1623, 10 L.Ed.2d 726; United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 76 L.Ed. 877; Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 65 L.Ed. 647; People v. Haven, 59 Cal.2d 713, 719–720, 31 Cal.Rptr. 47, 381 P.2d 927.)

Searches, even those authorized by the state and federal constitutions in other respects, must be reasonable. As we see it, the critical point here is the use of the intrusion to effectuate the search. Forcible entry may be deemed reasonable to effect an arrest; forcible entry may be deemed reasonable to prevent immediate destruction of evidence. Forcible entry is unreasonable when used to obtain evidence to bolster up the proof of the crime.

Permissible Investigation When There is Reasonable Cause to Suspect Criminal Acts

In holding that the state and federal constitutions prohibit the police from breaking and entering the premises of a suspect in order to obtain further evidence, we do not wish to be understood as prohibiting the police from investigating crime to the fullest extent of the law whenever they have reasonable cause to suspect that a crime is being committed. The key element is reasonable cause. Whenever reasonable cause does not exist, courts have consistently struck down police observations as exploratory searches. (Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288 (peeking through vent in roof); People v. Regalado, 224 Cal.App.2d 586, 36 Cal.Rptr. 795 (peeking through door into hotel room).) Such exploratory searches are as invalid as exploratory arrests and may not be justified by what they turn up. (People v. Brown, 45 Cal.2d 640, 290 P.2d 528.)

However, the same reasonable cause which will justify an arrest without a warrant, will permit police observations short of forcible entry to obtain further evidence. When there is reasonable cause to suspect criminal acts the police may look at whatever it is within their power to do and may use windows, transoms, mail slots, and keyholes to do it. When reasonable cause exists, the police may listen from all points of vantage readily accessible to them and even secure vantage stations which in the absence of reasonable cause would otherwise be a trespass for them to do.

Short of breaking and entering the courts have shown considerable liberality in validating police access to observation and listening posts. (Hester v. United States, 265 U.S. 57, 45 S.Ct. 445, 68 L.Ed. 898 (trespass on land); People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (looking through window); People v. Foster, 199 Cal.App.2d 866, 19 Cal.Rptr. 283 (looking in trash can in carport); People v. Hen Chin, 145 Cal.App.2d 583, 303 P.2d 18 (looking in hotel window); People v. Moore, 140 Cal.App.2d 870, 295 P.2d 969 (looking through venetian blinds); Giacona v. United States, 5 Cir., 257 F.2d 450 (inspection of outside building foundation); Janney v. United States, 4 Cir., 206 F.2d 601 (trespass near barn to observe bootlegging sale); United States v. Romano, D.C., 203 F.Supp. 27 (entry on factory grounds through break in fence).) If there is reasonable cause to believe that a crime is being committed police officers may use their eyes and ears to best advantage.

In these activities the police must be guided by the rule of reason of the Fourth Amendment to the United States Constitution and of Article I, section 19, of the California Constitution. Leeway in permitting their observations and their listenings will be greater or less depending upon the time of day and the nature of the premises involved, whether residence, business, warehouse, or what. While perplexing, borderline questions may arise from time to time which may be difficult to answer, there is a clear distinction between simple trespass (which to suppress crime may be privileged) and a forcible breaking and entering into premises, a distinction which goes back hundreds of years in both the civil and the criminal law. To secure evidence the Constitution may permit the one but it certainly does not permit the other. To quote from the concurring opinion of Mr. Justice Jackson in McDonald v. United States, 335 U.S. 451, 458–459, 69 S.Ct. 191, 195, 93 L.Ed. 153: ‘Here the police gained access to their peeking post by means that were not merely unauthorized but by means that were forbidden by law and denounced as criminal. In prying up the porch window and climbing into the landlady's bedroom, they were guilty of breaking and entering—a felony in law and a crime far more serious than the one they were engaged in suppressing. Having forced an entry without either a search warrant or an arrest warrant to justify it, the felonious character of their entry, it seems to me, followed every step of their journey inside the house and tainted its fruits with illegality.’

Under the prohibitions of the state and federal Constitutions against unreasonable search and seizure, reasonable cause to believe that criminal acts are being committed is not sufficient cause to justify breaking and entering premises to conduct a search without a warrant. (Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; People v. Edgar, 60 Cal.2d 171, 174–176, 32 Cal.Rptr. 41, 383 P.2d 449.)

‘Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.’ (Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145.)

We conclude that the search in these cases violated both the state and the federal Constitutions.

Propriety of the Use of Habeas Corpus

The second main question is whether habeas corpus is an appropriate remedy for issue by this court to vacate judgments of conviction obtained by the use of unconstitutionally-seized evidence. In reviewing this question we set forth the chronology of these cases:

March 18, 1964—Arrests

April 17—Verdicts of guilty—Municipal Court

April 23—Sentences and Notices of Appeal

August 11—Judgments affirmed—Appellate Department Superior Court

August 26—Rehearing denied Certification denied—Appellate Department Superior Court

August 28—Remittitur filed in Municipal Court

September 25—Continuance in Municipal Court to October 25 to pay fines

September 28—Petition for writ of habeas corpus, District Court of Appeal

October 6—Writ of habeas corpus issued, District Court of Appeal

February 9, 1965—Relief granted under writ, District Court of Appeal

March 31—Order for further consideration, Supreme Court

Petitioners had exhausted their legal remedies by appealing to the Appellate Department of the Superior Court, and absent a published opinion or certification to the District Court of Appeal, no further appeal was authorized under our rules. (Rule 62, California Rules of Court.) Should their petition for an extraordinary writ of habeas corpus have been entertained by this court?

After further consideration we are of opinion that the answer to the question is yes, and that relief under the writ of habeas corpus should properly be granted. In our view the cases referred to in the Supreme Court order are controlled by factors which differ from those governing the present litigation. Before discussing those cases specifically, we briefly set down some general consideration on the use of extraordinary writs.

As we see it, the decision to issue or not issue an extraordinary writ depends upon whether ordinary remedies provide an opportunity for adequate relief—if intelligently used by the litigant. Essentially, limitations on the use of an extraordinary writ such as habeas corpus are designed to forestall the bypassing of ordinary legal procedures. Thus the normal prerequisite to the issue of an extraordinary writ is that legal remedies have been (a) used and (b) exhausted. Only if both these conditions have been met is an extraordinary writ, such as habeas corpus, deemed appropriate. In a case of illegally-secured evidence the invasion of the constitutional right of the litigant is usually known to him at the time of trial, and he is expected to raise the issue promptly by means of regular legal procedure. If he does not do so, he is deemed to have waived his objection to the use of such evidence.

A review of In re Lessard, 62 A.C. 516, 42 Cal.Rptr. 583, 399 P.2d 39, brings these considerations into focus. Lessard was convicted of murder, and his conviction affirmed by the California Supreme Court in 1962. After his appeal he sought habeas corpus successively, in the California Supreme Court (January 1963), in the United States District Court (May 1963), in the Superior Court of Marin (July 1963), and under his current petition again in the California Supreme Court (February 1965).

Among other grounds for relief under habeas corpus petitioner complained of the use of illegally-seized evidence. He alleged that evidence consisting of petitioner's shirt, which had laundry marks similar to those on a shirt found at the scene of the crime, had been obtained by an illegal search of the apartment occupied by his estranged wife. The California Supreme Court rejected this contention, finding both that the point had not been timely presented, and, additionally, that it had no inherent merit. The writ of habeas corpus could not be used, said the court, to object for the first time to the use of illegally-obtained evidence. In support of its conclusion that the objection was untimely the court cited three factors: (1) failure to object to the introduction in evidence of the shirt at the time of trial; (2) failure to raise the objection on appeal; (3) inappropriateness of the writ of habeas corpus to attack a final judgment on the ground of improper admission of illegally-obtained evidence.

However, in addition to finding the remedy of habeas corpus inappropriate, the court reviewed the facts of petitioner's complaint about the seizure of the shirt, found that petitioner's wife had properly consented to the search, and therefore concluded petitioner's point had no merit, even had it properly been before the court.

In re Shipp, 62 A.C. 573, 43 Cal.Rptr. 3, 399 P.2d 571, a murder conviction previously affirmed on appeal by the California Supreme Court, involved a subsequent attack by habeas corpus on the admission in evidence of the victim's journal and two passbooks said to have been illegally seized in a search of petitioner's room without a search warrant. Objection to this identical evidence had been raised on appeal, and the California Supreme Court had ruled that the error of its admission, if any, was nonprejudicial. When the same point was again presented to the same court on habeas corpus, the court reiterated its original conclusion that the receipt of the evidence constituted harmless error and refused to reconsider its ruling on collateral attack.

In re Harris, 56 Cal.2d 879, 880, 884, 16 Cal.Rptr. 889, 366 P.2d 305, was an obscenity case in which a writ of habeas corpus was issued to discharge petitioner from custody because he had been denied due process of law at his trial in not having been allowed to introduce evidence to prove contemporary community standards of obscenity. A concurring opinion discussed an additional ground on which the writ of habeas corpus had been sought—the invalidity of the judgment because of the use of illegally-seized evidence—and concluded that objections to unconstitutionally-seized evidence could not be raised by means of collateral attack. The Harris concurring opinion relied on lower federal court decisions disapproving collateral attacks on convictions based on the use of unconstitutionally-seized evidence, which decisions, however, preceded Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, and Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, and no longer reflect current federal practice. (People of State of Cal. v. Hurst, 325 F.2d 891 (9th Cir.1964); United States ex rel. West v. LaVallee, 335 F.2d 230 (2d Cir. 1964); Crawford v. Bannan, 336 F.2d 505 (6th Cir. 1964); United States ex rel. Mancini v. Rundle, 337 F.2d 268 (3rd Cir. 1964).)

The procedural limitation on the use of habeas corpus indicated by these three cases appears designed to prevent relitigation on habeas corpus of evidentiary contentions which have been, or which might have been, fully litigated by ordinary legal processes. The petitioner in Lessard sought to object to evidence for the first time on habeas corpus long after the conclusion of his trial and his appeal. Obviously, he had failed to use his legal remedy to object to the admission of evidence at the time of trial and had failed to show any valid excuse for his failure. The petitioner in Shipp sought to obtain a different ruling on habeas corpus from the same court on the same evidentiary contention he had already raised on his appeal and which had been decided against him. Obviously, the point had been fully litigated in the California Supreme Court, and no cause to litigate it over again had been shown. Thus the Lessard case stands for the proposition that an objection to the use of illegally-seized evidence which could have been litigated earlier but was not, will not justify a writ of habeas corpus, and the Shipp case for the proposition that an objection to the use of illegally-seized evidence decided adversely to petitioner by the Supreme Court on appeal will not be again considered by writ of habeas corpus. In the one case petitioner is too late, in the other he has already contended and lost.

The present cases differ in critical respects from the Lessard and Shipp cases. The Lessard case specified four factors which justified the refusal to issue a writ of habeas corpus—failure to object at trial, failure to object on appeal, a final judgment, and no inherent merit to the claim. By contrast in the present cases we found:

1. Petitioners had fully objected at the trial to the use of illegally-seized evidence;

2. Petitioners had renewed their objections on appeal;

3. The judgments of conviction were still pending and not final under federal rules, in that the time to petition for certiorari in the United States Supreme Court had not expired. (United States Supreme Court Rule 22(1) allows 90 days to petition for review of state court judgments in criminal cases.);

4. Petitioners' claim of illegal search had substantial merit.

The Shipp case sought to review by habeas corpus a point of evidence which had already been determined by the same court adversely to petitioner on appeal. No such review has taken place in the present cases.

The present petitioners have brought their objection promptly before every court which has been available to them (Municipal Court and Superior Court), have exhausted all legal remedies within their grasp, and have no way to obtain a hearing on their federal constitutional claims from California's appellate courts except by extraordinary writ. Petitioners are in no sense attempting to use habeas corpus as a substitute for appeal, a practice In re Dixon, 41 Cal.2d 756, 264 P.2d 513, condemns, nor have they attempted to collaterally attack the judgments of the courts below on grounds not presented to nor considered by those courts. Rather, petitioners, having exhausted their legal remedies under our procedures, are seeking an extraordinary writ to enforce their federal and state constitutional rights in cases in which no final judgment has become effective under federal rules.

Fourth Amendment Now Fully Applicable to State Proceedings

When a federal constitutional claim of the use of illegally-seized evidence has been timely raised, when legal remedies have been exhausted, and when on initial examination the claim appears to have merit, we believe it appropriate for us to entertain a petition for an extraordinary writ. The prohibition of the Fourth Amendment against unreasonable searches and seizures is now fully applicable to the states through the medium of the Fourteenth Amendment, and the constitutional standard defining unreasonable searches and seizures is presently the same for both state and federal governments. (Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.) The United States Supreme Court has shown no hesitancy in reviewing the reasonableness of a search in state court proceedings claimed to have violated the federal Constitution. As that court said in Ker: ‘Findings of reasonableness, of course, are respected only insofar as consistent with federal constitutional guarantees. As we have stated above and in other cases involving federal constitutional rights, findings of state courts are by no means insulated against examination here. See e. g., Spano v. [People of State of] New York, 360 U.S. 315, 316, 79 S.Ct. 1202, 1203, 3 L.Ed.2d 1265 (1959); Thomas v. [State of] Arizona, 356 U.S. 390, 393, 78 S.Ct. 885, 887, 2 L.Ed.2d 863 (1958); Pierre v. State of Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 538–539, 83 L.Ed. 757 (1939). While this Court does not sit as in nisi prius to appraise contradictory factual questions, it will, where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental—i. e., constitutional—criteria established by this Court have been respected. The States are not thereby precluded from developing workable rules governing arrests, searches and seizures to meet ‘the practical demands of effective criminal investigation and law enforcement’ in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain.' (Ker pp. 33–34, 83 S.Ct. p. 1630.)

Since Ker v. State of California the rulings of the United States Supreme Court have shown that that court intends to vindicate fully all federal constitutional rights in state court proceedings (Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856), even those involving trivial misdemeanors. [Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (defacing a public building); Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (possession of gambling slips); Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (disturbing the peace).]

In the Henry case, defendant was convicted in a state court of disturbing the peace. His federal constitutional claim derived from the use of evidence obtained by a search of his automobile in violation of the Fourth Amendment. The Mississippi Supreme Court, 154 So.2d 289, affirmed his conviction on the ground he had waived his defense of illegal search by failing to object to the evidence at the time it was introduced. Thus petitioner in Henry, as in the present cases, had exhausted his legal remedies, including his right of appeal. Petitioner, however, applied to the United States Supreme Court for a writ of certiorari, and the Supreme Court in granting the writ vacated the Mississippi judgment and directed the Mississippi court to further consider whether petitioner had understandingly and knowingly waived his defense to an illegal search under federal law by failing to object to evidence at the time it was offered. In considering the relationship of state procedure to the enforcement of a federal right the court said that the validity of the state procedure was itself a federal question. It quoted Mr. Justice Holmes: ‘When as here there is a plain assertion of federal rights in the lower court, local rules as to how far it shall be reviewed on appeal do not necessarily prevail. * * * Whether the ritht was denied or not given due recognition by the [state court] * * * is a question as to which the plaintiffs are entitled to invoke our judgment.’ (Love v. Griffith, 266 U.S. 32, 33–34, 45 S.Ct. 12, 69 L.Ed. 157.) The court observed that unless state procedural rules served a legitimate state interest, they ought not to be permitted to bar vindication of important federal rights. (379 U.S. p. 448, 85 S.Ct. 564.)

The courts of Mississippi should be permitted to make the initial determination of waiver, said the Supreme Court, in order to serve the causes of efficient administration of criminal justice and of harmonious federal-state judicial relations. (p. 452, 85 S.Ct. 564) However, the court warned, even if the Mississippi courts were to rule that the federal claim had been waived, this ‘would not end this case; petitioner might still pursue vindication of his federal claim in a federal habeas corpus proceeding in which the procedural default will not alone preclude consideration of his claim, at least unless it is shown that petitioner deliberately bypassed the orderly procedure of the state courts. Fay v. Noia, supra, 372 U.S. [391] at 438, 83 S.Ct. at 848. [822, 9 L.Ed.2d 837.]’ (p. 452, 85 S.Ct. p. 570.)

In conclusion, the United States Supreme Court suggested that post-conviction use of habeas corpus in the federal courts to review federal claims in state court criminal proceedings could be reduced if the state courts themselves would decide these federal claims. ‘The Court is not blind to the fact that the federal habeas corpus jurisdiction has been a source of irritation between the federal and state judiciaries. It has been suggested that this friction might be ameliorated if the States would look upon our decisions in Fay v. Noia, supra and Townsend v. Sain, supra, [372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770,] as affording them an opportunity to provide state procedures, direct or collateral, for a full airing of federal claims. That prospect is better served by a remand than by relegating petitioner to his federal habeas remedy.’ (p. 453, 85 S.Ct. p. 570.)

If State Courts Won't Review, Federal Courts Will

If California fails to afford litigants an opportunity for a full airing of their federal claims in its appellate courts in cases not yet final under federal law, then it forces its litigants to petition for certiorari to the United States Supreme Court and ask that court to review decisions of our Superior Courts without benefit of the views of California's appellate courts, or alternatively, to apply to the federal district court for habeas corpus and allege an absence of available state corrective processes to vindicate their federal rights.1 In the face of these alternatives it seems preferable for California courts in pending California cases to exercise their full authority, when deemed appropriate, to enforce federal constitutional rights rather than to relegate petitioners to the federal courts. (Townsend v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745, 9 L.Ed.2d 770.) Such is the procedure strongly urged by the United States Supreme Court. (Henry v. State of Mississippi, supra, 379 U.S. p. 453, 85 S.Ct. 564.)

The federal courts are under a duty to act on these matters. (People of State of Cal. v. Hurst, 325 F.2d 891 (9th Cir. 1964); Davis v. People of State of California, 341 F.2d 982 (9th Cir. 1965).) In the Hurst case the court laid down the rule that one convicted by the use of illegally-seized evidence could seek habeas corpus in the federal courts to secure his discharge long after his conviction became final. ‘Since the exclusionary rule is itself a Constitutional dictate, the question of illegal search and seizure by state authorities of evidence for use in a state criminal trial is cognizable by the federal courts on application for a writ of habeas corpus, unless there is a state post-conviction conviction remedy still available to the prisoner at the time of filing the application in the federal court.’ (325 F.2d p. 894.)

While there was a difference of opinion among lower federal courts whether the ban against the use of illegally-seized evidence should be applied retroactively to vacate judgments which had become final prior to the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (June 1961), a difference since resolved against retroactive application by Linkletter v. Walker, 85 S.Ct. 1731 (June 7, 1965), and Angelet v. Fay, 85 S.Ct. 1750 (June 7, 1965), there has been no difference of opinion at all as to the application of the ban to judgments subsequent to Mapp. As to these, relief by writ of habeas corpus has been granted as a matter of course. (People of State of Cal. v. Hurst, 325 F.2d 891 (9th Cir. 1964); Davis v. People of State of California, 341 F.2d 982 (9th Cir. 1965); United States ex rel. Angelet v. Fay, 333 F.2d 12 (2nd Cir. 1964), affirmed 85 S.Ct. 1750 (June 7, 1965); United States ex rel. West v. LaVallee, 335 F.2d 230 (2nd Cir. 1964); United States ex rel. Mancini v. Rundle, 337 F.2d 268 (3rd Cir. 1964); United States ex rel. Dalton v. Myers, 342 F.2d 202 (3rd Cir. 1965); Hall v. Warden, 313 F.2d 483 (4th Cir. 1963); United States ex rel. Linkletter v. Walker, 323 F.2d 11 (5th Cir. 1963), affirmed 85 S.Ct. 1731 (June 7, 1965); Crawford v. Bannan, 336 F.2d 505 (6th Cir. 1964); Sisk v. Lane, 331 F.2d 235 (7th Cir. 1964); Witt v. Nash, 342 F.2d 791 (8th Cir. 1965); Dillon v. Peters, 341 F.2d 337 (10th Cir 1965).) The new federal practice has veen aptly summarized by Marshall, J., dissenting in United States ex rel. Angelet v. Fay, 333 F.2d 12, 27 (2nd Cir. 1964): ‘If a state court should nevertheless admit such evidence [illegally-seized evidence] in a post-Mapp trial, no one could possibly contend that federal habeas corpus would not lie.’

In view of these developments we think it appropriate for California's appellate courts to review federal claims by means of extraordinary writ when they have been timely raised, when they appear to have merit, and when ordinary legal procedures have been exhausted. The writ of habeas corpus provides a suitable remedy for use in appropriate cases. (Calif.Const., Art. VI, §§ 4, 4b.)

Relief granted on writ of habeas corpus. The observations of the police from the roof, the attic, and the upstairs office are to be excluded from evidence in any further trial of these cases.

I concur in the conclusion that our writ was properly granted in this case. It will be remembered that the police officers, using crowbars, opened a hole approximately 7.25 square feet in area in the wooden roof of a building occupied under lease by a private club. The officers took this action in order to gain access into the attic of the building where, by means of opening further holes in partitions, they could observe the activities of the occupants whom they believed to be engaged in the commission of the offense of gambling, a misdemeanor. Officer Lee testified that on an earlier occasion the police had opened a similar hole in the roof at the same location but that in the interim ‘someone else had repaired’ the damage resulting from this previous trespass. The fruits, if any, of the first forcible entry are not revealed.

It appears to be conceded by all parties that whatever the extent of the power of California courts to proscribe successful prosecutions based upon evidence obtained by means of such clearly unlawful and unconstitutional methods, the federal courts can, and will, intercede to vindicate the constitutional rights which have been violated thereby. However, I must confess that I am unable to draw much comfort from the knowledge that this federal authority exists and may be available to afford the remedies dictated by constitutional mandate.

The goad and the spur are not the most delicate of the instruments which have been invented to inspire forward movement. However, language recently emanating from the Supreme Court of the United States indicates some disposition to use them. I have in mind the rather sharp language used by Justices Clark and Brennan in Case v. State of Nebraska, 85 S.Ct. 1486.

I do not regard federal intervention as such an unmixed blessing that we should invite it by proclaiming our own impotence. If the individual states composing the federal union are to retain their historic autonomy and independence, they must not hesitate to utilize whatever effecive procedures are available to rectify errors involving violations of constitutional rights, especially in rather extreme cases such as this.

There should be accorded to the concepts of ‘final judgment’ and ‘collateral attack’ no talismanic power to thrust themselves into, and to control, situations to which they are neither realistically nor semantically applicable. This case involves no attempt to enforce rights newly conceived and created after judgment nor any failure on the part of the petitioners to assert promptly and forcefully these constitutionally guaranteed rights. This case involves no voluntary election to resort to the writ of habeas corpus ‘instead of an appeal.’

If this appellate court is indeed powerless to utilize this historic writ to vindicate the rights which were so clearly violated in the manner shown by our former unanimous opinion,1 then surely it cannot fairly be said that the federal courts are making an uninvited and unnecessary invasion in usurpation of our prerogatives.

Further, the true issue, as I view it, is not whether our procedures for reviewing municipal court decisions are so inadequate to fulfill the requirements of due process that the United States Supreme Court may ultimately hold them to be unconstitutional. (Cf. Case v. State of Nebraska, supra.) I do not believe that such a determination is likely. The mere fact that the highest state court authorized to consider a direct appeal from a trial court decision in a given case may occasionally err in the exercise of its judgment does not mean that the state's appellate procedures are in anywise inadequate. We strive for judicial progress, but we do not expect judicial perfection.

The determinative issue, as I see it, is whether or not in a case tried in the municipal court, the appellate courts of this state, other than the appellate department of the superior court, may correct these very infrequent errors by means of available existing procedures. I believe that we may do so, and that we should do so, in proper cases, by granting petitions for appropriate post-conviction writs. To the extent that such relief is clearly due, I think the petitions preferably should be directed to us rather than to the federal courts.

I dissent.

The disposition of the case at bench is settled by the concurring opinion In re Harris, 56 Cal.2d 879, 16 Cal.Rptr. 889, 366 P.2d 305, followed by In re Lessard, 62 A.C. 516, 522–523, 42 Cal.Rptr. 583, 399 P.2d 39 and In re Shipp, 62 A.C. 573, 576, 43 Cal.Rptr. 3, 399 P.2d 571.

Petitioner's position is that the record before us established as a matter of law that the arrest and search and seizure were unlawful. There is a real question on this subject, but assuming arguendo that it is sound, the concurring opinion in Harris spells out the duty of this Court unless we undertake to usurp the function of our Supreme Court to interpret the application of decisions of the United States Supreme Court, as they affect judicial administration in this state. The language in Harris applies in all respects to the facts of this case. Justice Traynor says, commencing at page 883, of 56 Cal.2d, page 891 of 16 Cal.Rptr., page 307 of 366 P.2d:

‘In the present case, however, petitioner has exhausted his remedy by appeal (see, People v. Harris [192 Cal.App.2d Supp. 887] 13 Cal.Rptr. 642), and he contends that the record establishes as amatter of law that the seizure of evidence from his bookstore was unconstitutional. Under these circumstances he asserts that the Dixon case itself indicates that habeas corpus is available, and he points out that under similar circumstances, habeas corpus would be available in a United States district court to challenge a state's use of an involuntary confession. (Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948.)

‘If the violation of a petitioner's constitutional rights by the use of illegally seized evidence had any bearing on the issue of his guilt, there should be no doubt that habeas corpus would be available. Unlike the denial of the right to counsel, the knowing use of perjured testimony or suppression of evidence, the use of an involuntary confession, or as in this case, the denial of an opportunity to present a defense, the use of illegally seized evidence carries with it no risk of convicting an innocent person. The purpose of the exclusionary rule is not to prevent the conviction of the innocent, but to deter unconstitutional methods of law enforcement. (Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669; Walder v. United States, 347 U.S. 62, 64–65, 74 S.Ct. 354, 98 L.Ed. 503; Mapp v. Ohio, supra, [367 U.S. 643] 81 S.Ct. 1684, 1688 [, 6 L.Ed.2d 1081;] People v. Cahan, supra, 44 Cal.2d 434, 443, 445, 282 P.2d 905, 50 A.L.R.2d 513; People v. Martin, 45 Cal.2d 755, 760, 290 P.2d 855.) That purpose is adequately served when a state provides an orderly procedure for raising the question of illegally obtained evidence at or before trial and on appeal. The risk that the deterrent effect of the rule will be compromised by an occasional erroneous decision refusing to apply it is far outweighed by the disruption of the orderly administration of justice that would ensue if the issue could be relitigated over and over again on collateral attack.

‘Even if we were to limit the area of collateral attack to cases in which the facts were not disputed * * * repetitious attacks on final judgments would not be eliminated. The law of search and seizure has not been static. The United States Supreme Court has only recently relaxed the requirements of standing to challenge the use of illegally obtained evidence (Jones v. United States, 362 U.S. 257, 261–267, 80 S.Ct. 725, 4 L.Ed.2d 697; cf., People v. Martin, supra, 45 Cal.2d 755, 759–761, 290 P.2d 855) and abandoned the rule that evidence illegally seized by state officers is admissible in federal courts. (Elkins v. United States, supra, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669.) If collateral attack was permissible, such changes would invite fresh attacks on final judgments affirmed on appeal under the pre-existing rules or on judgments from which appeals were excusably not taken in view of the apparent state of the law. Moreover, if such changes reflected refinements and improvements in constitutional law that went to the correct determination of guilt itself, one would indeed be reluctant to deny their benefits to persons claiming that they had been convicted of crimes they did not commit through the denial of rights now determined to be of constitutional magnitude. Such changes, however, like the exclusionary rule itself have no bearing on the issue of guilt, and it is therefore easily understandable why the lower federal courts have consistently adhered to the rule that the question of unconstitutionally seized evidence may not be raised on collateral attack. [Citations.]’ (Emphasis added.)

It is worth noting that Justice Harlan speaking in Ker v. State of California, 374 U.S. 23, 46, 83 S.Ct. 1623, 1646, 10 L.Ed.2d 726, emphasizes one of the arguments above quoted from Harris. He says speaking of the dilemma of state courts:

‘* * * also because the States, more likely than not, will be placed in an atmosphere of uncertainty since this Court's decisions in the realm of search and seizure are hardly notable for their predictability.’

Such crucial United States Supreme Court cases referred to by the majority as Townsend, Ker, Noia, and Henry were decided after Harris but prior to Lessard and Shipp.

Townsend, Ker, Noia, and Henry appear to say that irrespective of whether a procedural or substantive question of state law is involved in an action wherein a state court has rendered a final judgment, if a constitutional question is also involved, the final judgment may be collaterally attacked by the federal judiciary at its discretion when petitioned in habeas corpus. In Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770, the Supreme Court sets forth six circumstances as ‘* * * the controlling criteria for the guidance of the federal habeas corpus courts * * *.’ In the final analysis the test seems to be the discretion of the federal judge to whom the petition is addressed. If there is any doubt as to this fact, it is set at rest by Chief Justice Warren speaking in Townsend at p. 318, 83 S.Ct. at p. 760:

‘* * * Although the district judge may, where the state court has reliably found the relevant facts, defer to the state court's findings of fact, he may not defer to its findings of law. It is the district judge's duty to apply the applicable federal law to the state court fact findings independently. The state conclusions of law may not be given binding weight on habeas. That was settled in Brown v. Allen, supra, 344 U.S. [443 at 506, 73 S.Ct. 397, at 445, 97 L.Ed. 469], (opinion of Mr. Justice Frankfurter).’ (Emphasis added.)

‘* * * It rests largely with the federal district judges to give practical form to the principles announced today. We are aware that the too promiscuous grant of evidentiary hearings on habeas could both swamp the dockets of the District Courts and cause acute and unnecessary friction with state organs of criminal justice, while the too limited use of such hearings would allow many grave constitutional errors to go forever uncorrected. The accommodation of these competing factors must be made on the front line, by the district judges who are conscious of their paramount responsibility in this area.’ (Townsend at p. 319, 83 S.Ct. at p. 760.)

As I read the cases the Great Writ is now the sword of Damocles suspended over every final state judgment involving a constitutional question.

We have been told that the federal courts can inquire into state procedural standards, its substantive determinations, its findings of fact on uncontroverted or disputed evidence and to take new evidence. (Townsend, Noia, Ker, Henry.)

In these circumstances, petitioner has the right to petition for a federal writ in the case at bench, whether the stipulated record shows an invalid arrest and search as a matter of law or whether the California Court determined that each was valid after hearing conflicting evidence. The discretion of the federal judge petitioned exercised, of course, in accordance with the criteria set by the United States Supreme Court in Townsend is the test.

Our Supreme Court has put its stamp of approval on the procedure provided by this state for the decision of constitutional questions arising in Municipal Court litigation. If the State Legislature or our Supreme Court set up fair and further standards of constitutional conduct other or in addition to those now provided in the hope to escape the all-pervading embrace of the federal writ and extended the rights now available to a litigant in the Municipal Court by granting as of right a writ of review to the District Court of Appeal and/or the Supreme Court of this state, there would still be no immunity against collateral attack by federal courts when petitioned via the Great Writ.

In the language of Harris, 56 Cal.2d p. 885, 16 Cal.Rptr. p. 893, 366 P.2d p. 309: ‘* * * the conflict [here] is between the policy in favor of finality of judgments and the policy to discourage lawless enforcement of the law. Since the latter policy may be adequately protected at trial and on appeal, it need not be further promoted by destroying the finality of judgments.’

It is expected that California courts will maintain the integrity of their judgments and resist writs which, as said in Harris, p. 882, 16 Cal.Rptr. 889, 366 P.2d 305, are ‘* * * used instead of an appeal’ until such time as we are told that procedurally and/or substantively, California has not dealt with its people on the high standard required by our constitutional way of life.

FOOTNOTES

1.  28 U.S.C. § 2254: ‘An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. ‘An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.’

1.  Application of Sterling, Cal.App., 42 Cal.Rptr. 519.

FLEMING, Justice.