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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Archie William HILL, Jr., Defendant and Appellant.

Cr. 13180.

Decided: March 28, 1968

Joseph Amato, Palos Verdes Estates, under appointment by the Court of Appeal, for appellant. Thomas C. Lynch, Atty. Gen., Elizabeth Miller and Barry H. Lawrence, Deputy Attys. Gen., for respondent.

The defendant has appealed from a judgment of conviction of the crimes of robbery (Pen.Code, § 211) and kidnaping for the purpose of robbery (Pen.Code, § 209).   The eyewitnesses to the offenses were unable to identify him, the only substantial evidence of his participation being statements contained in two pages of a diary shown to be in his handwriting and stolen property and other objects found in the bedroom of his apartment.   The question presented is whether the police obtained such evidence by means of an illegal search of the defendant's apartment in his absence.   The search immediately followed the arrest in the apartment of a man named Miller, whom the police believed to be the defendant Hill.

On June 6, 1966, Officer Gastaldo and three other officers went to the defendant's apartment.   Officer Gastaldo's purpose was to arrest the defendant, Archie Hill.   He had neither a warrant for the arrest of Hill nor a search warrant.   Officer Gastaldo had information as to Hill's address and his physical description.   He had been informed that Hill and a man named Bader occupied the apartment;  the officer knew where Mr. Bader then was.

Officer Gastaldo determined that apartment No. 4 was being occupied by Hill by checking the mail box, on which only Hill's name appeared.   One of the other officers made inquiry of children in the area.   Officer Gastaldo then knocked on the door at approximately 8:15 p.m.   Part of the officer's testimony was:  “The door was opened and a person who fit the description exactly of Archie Hill, as I had received it from both the cards and from Baum and Bader [subsequently charged with the offenses jointly with Hill], answered the door.  * * * We placed him under arrest for robbery.”   The officers then searched the premises and found, among other things, numerous rent receipts and personal correspondence in the name of Hill.

Officer Gastaldo further testified that the man arrested said that his name was Miller, that he did not live in the apartment and that he had no knowledge of what was in the apartment.   Another portion of Officer Gastaldo's testimony was:  “First I questioned him as to his identity, so as to make sure he was not Mr. Hill;  he told me his name was Miller;  that he didn't know where Archie Hill was;  that Archie Hill did in fact own the apartment there, or lived in the apartment, and that he was just sitting around waiting for him;  that to his knowledge there was no one else in the apartment but him.”   Miller did not say how he entered the apartment, but said that he just came in and was waiting for Hill.   He produced some type of identification in the name of Miller.   But, Officer Gastaldo testified, it did not “prove anything” to him.   Approximately “a day and a half later” he ascertained the true identity of the arrested man.

The pages from the diary were found in a dresser drawer in the bedroom after the questioning of Miller and after the finding of the rent receipts in the name of Hill.   The other objects were also found in the bedroom.   Miller was not asked to give permission for the search.   The officers were in the apartment “[p]robably a couple of hours.”

The evidence sustained the conclusion that Officer Gastaldo believed that the man he placed under arrest was Hill.   He subsequently found that he was mistaken.   Assuming that the police had reasonable cause for the arrest of Miller and the search of his person,1 the question presented for resolution is whether the ensuing plenary search of the apartment was lawful.   In Harris v. United States, 331 U.S. 145, at page 151, 67 S.Ct. 1098, at page 1101, 91 L.Ed. 1399, the Supreme Court stated:  “The opinions of this Court have clearly recognized that the search incident to arrest may, under appropriate circumstances, extend beyond the person of the one arrested to include the premises under his immediate control.”  (See United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653.)

The difficulty in the present case is that, aside from inferences arising from the mere presence of Miller in the apartment and based upon the officer's mistaken belief that he was Hill, the record does not show that the apartment was under the immediate control of Miller.   The constitutionally protected privacy at stake was that of Hill who was absent from his place of residence.   While the doctrine of probable cause assures a balance between the rights of the individual and those of the government with respect to the matter of arrest, the constitutional protection against unreasonable searches, particularly of a person's home, would be less than complete if a plenary search could be justified as incident to an arrest of a person mistakenly believed by an officer to be in immediate charge of the premises.   Such a case is not one where the right of privacy must reasonably yield to the right of search.   While it is true that in the present case it appears that the officers acted in good faith, the warning of Beck v. State of Ohio, 379 U.S. 89, at page 97, 85 S.Ct. 223, at page 229, 13 L.Ed.2d 142, should be heeded:  “If the subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.”

Without the illegally obtained pages of the defendant's diary and other objects noted hereinabove the evidence is insufficient to sustain the conviction.   Therefore, the judgment cannot stand.

The judgment is reversed.


1.   In People v. Yet Ning Yee, 145 Cal.App.2d 513, at pages 517–518, 302 P.2d 616, at page 619, the court stated:  In People v. Kitchens, supra, 46 Cal.2d 260, 263, 294 P.2d 17, there is an intimation that where an officer in good faith mistakes another person for one whom the officer has reasonable grounds to believe is guilty of a felony, and searches the other person, finding on him evidence of the commission of a felony, the search and the consequent arrest is legal.”  (See Collings, Toward Workable Rules of Search and Seizure—An Amicus Curiae Brief (1962) 50 Cal.L.Rev. 421, 422.)

FORD, Presiding Justice.

COBEY and MOSS, JJ., concur.

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