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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Raymond MACK, Defendant and Appellant.

Cr. 33217.

Decided: November 30, 1979

Glen H. Schwartz, Venice, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

By information defendant Raymond Mack was charged in count I with murder, a felony, in violation of Penal Code section 187, and in counts II through VII, with various robberies, all felonies, in violation of Penal Code section 211, and in count VIII with burglary, a felony, in violation of Penal Code section 459. In addition, there were allegations that, at the time of the commission of the various offenses, this defendant was armed with deadly weapons within the meaning of Penal Code section 12022 and had used a firearm within the meaning of Penal Code section 12022.5.1

Prior to the first trial, a hearing was held pursuant to motions made by the five defendants under Penal Code section 1538.5 to suppress evidence. The trial judge granted the motion and the People sought review of his ruling by writ in this court. (Pen.Code, s 1538.5, subd. (o).) In People v. Superior Court (Bowden ) (1976) 65 Cal.App.3d 511, 524, 135 Cal.Rptr. 306, 313, the court issued a peremptory writ with directions to the trial court to “vacate its order granting the motions to suppress the evidence and thereafter conduct further proceedings for the limited purpose of making factual determinations on the other unresolved issues previously raised by defendants in their motions pursuant to Penal Code section 1538.5. Since a full de novo hearing has been had, additional evidence should be allowed only if the standards set forth in Madril v. Superior Court (1975) 15 Cal.3d 73, 123 Cal.Rptr. 465, 539 P.2d 33, are satisfied.” This opinion was rendered on December 30, 1976.

Consequently, in 1977, defendant Mack's motion to suppress evidence, made pursuant to Penal Code section 1538.5, was heard by the trial judge. No new evidence was presented to the court but the unresolved issues were fully argued orally by counsel. The trial court denied the defendant's motion.

During voir dire of prospective jury members at the second trial, in January 1978, defendant Mack, who is black, made a motion for mistrial, charging that the prosecutor was systematically employing his peremptory challenges to exclude blacks from the jury, and had in fact managed to remove all nine black potential jurors by this method from the panel. The trial court, without requiring the prosecutor to respond, denied the motion.

The jury at defendant's second trial convicted him on all eight counts, finding all of the offenses to be of the first degree. The jury also found to be true a great-bodily-injury allegation contained in count II, but the allegations charging use of a firearm set forth in counts II and III were found not to be true. On the People's motion, the allegation that Penal Code section 12022.5 was applicable in count I was ordered stricken from the information.

Probation was denied. Defendant was sentenced to state prison for the term prescribed by law. Execution of sentence as to counts II through VII was stayed pending appeal and service of sentence as to count I, said stay to become permanent upon completion of sentence as to count I. Defendant appeals from the judgment of conviction.

1 Defendant Mack presents three contentions on appeal. He contends (1) that the trial court erred in denying his motion to suppress evidence; (2) that the trial court erred in admitting his confession into evidence; and (3) that the trial court erred in denying his motion for a mistrial based on the prosecutor's use of peremptory challenges to dismiss all nine blacks as prospective jurors.


A Factual Summary

In view of these contentions, we find it unnecessary to set forth a detailed statement of the evidence presented by the prosecution. We thus set forth a short summary of the facts to provide the foundation for a discussion of defendant's contentions on appeal.

The offenses charged in the information were committed on July 24, 1975. On this date, the five defendants, all relatively young males, started cruising a freeway in a red van driven by defendant's former codefendant, Mark Bowden. The modus operandi was to select potential victims at random from among those driving in late model expensive automobiles, follow them to their destinations and rob them.

As a part of the first episode on the night of July 24, Gloria Witte was killed from a shotgun blast and money and credit cards were taken from her purse. In the second episode, two couples were robbed of jewelry and cash and the residence of one of these couples was ransacked, the robbers taking silver, jewelry, antiques and a coin collection. Among the items taken was a silver piece known as a “kiddish cup” which had the engraving “Hy Walter.” The burglarized premises was the residence of Hyman Walter.


The Illegality of the Search of the Bowden Garage and the Seizure of Stolen Items Contained Therein

On this appeal defendant Mack contends that the trial court erroneously denied his motion to suppress evidence. The evidence consisted of 57 items of stolen property, including silverware and the “Hy Walter” cup, seized by the police, without a warrant, at Mark Bowden's garage on August 29, 1975. Photographs of the silver items were admitted into evidence at defendant's trial.

As indicated previously, the Penal Code 1538.5 motion was heard in two installments. Proceedings temporarily came to a halt while the People sought a writ from the appellate court. The Bowden court was concerned with the initial issue presented at the Penal Code section 1538.5 motion the ordering out of individuals from the Bowden garage by the police. The other issues were resolved in the trial court after the Bowden court had issued its peremptory writ; those proceedings, consisting of the argument of counsel on the remaining issues, are before us in the case at bench.

We summarize the pertinent facts as developed at the suppression-of-evidence hearing. Los Angeles Police Officer Gary Zerbey testified that, at 1 p. m. on August 29, 1975, he received a telephone call from an individual who was male and sounded young but who refused to identify himself. He told Zerbey that there was stolen property, including television sets, cameras, stereo equipment, silverware and guns, in a garage at 6418 South Second Avenue in Los Angeles. The caller stated that the property had been taken in some recent burglaries on 8th Avenue between Slauson and Florence,2 and identified five persons as the burglars. One of those so identified was Mark Bowden, who lived at the Second Avenue address. The informant also told Zerbey that the five burglars were getting ready to move the stolen property from this garage.

Officer Zerbey was acquainted with Mark Bowden, who had been arrested earlier in the summer on a robbery charge but had been released; Officer Zerbey had been the investigator on that occasion. Bowden, a juvenile, had been scheduled for a pre-petition interview with the police in August but had not appeared.

After the phone call, Zerbey checked to see if any burglaries on 8th Avenue had been reported recently, and found that some had. He noted that items taken in these burglaries were similar in nature to the type of property the informant had stated was in the garage.

Zerbey testified that he decided to proceed to the Second Avenue address to conduct an investigation. He wanted to talk to Mark Bowden; he hoped that Mark's parents would consent to a search of the garage. Zerbey was accompanied on this mission by two other officers, Skiba and Ranzankas.

At approximately 2 p. m., Zerbey knocked on the front door of the Bowden home. Skiba and Ranzankas were deployed on both sides of the dwelling. At the rear of the residence, about five feet from the house, was an unattached garage, visible down a driveway from the front of the property. A young girl responded to Zerbey's knock, and informed him her mother was asleep. At that point, Zerbey heard some noise at the rear of the property and went to that location, where he saw Skiba ordering some individuals out of the garage.

Officer Skiba testified that, prior to going to the Bowden home, Zerbey had told him of the telephone call relating the storage of stolen property from burglaries in the garage. While Skiba was in the driveway, he encountered two black males who were leaving the garage by a side door, an ordinary “pedestrian” door as opposed to an overhanging garage door. The two young men had shouted: “Look out$ The cops$” and had run back inside the garage. Skiba, weapon drawn, had called out: “Hold it. Police. Come out.” Within a few seconds, five persons, including Mark Bowden, had exited from the garage.

Skiba testified that the side door to the garage was open after the exit by the five persons. He called again for anyone inside to come out. He stated that he then entered the garage to make sure that no one else was inside. He was aware that the stolen property allegedly therein included guns, and he stated he was fearful that someone with a weapon might have remained inside with intent to shoot him.

Officer Skiba searched the garage for additional persons while Officer Zerbey straddled the threshold of the open door, from which he could see both Officer Skiba and the five individuals outside being watched by Officer Ranzankas.

While inside, Skiba observed that the garage was furnished in a manner which suggested it was being used as a clubhouse. There was a bar and a makeshift loft. He noted many items of property there, including a television set and stereo equipment. In the northeast corner of the structure, Skiba saw several boxes, without lids, which contained silver.

Skiba found no one within. He came back to the garage door and advised Zerbey that there was no one there but that he had formed the opinion that there was stolen property in the garage; he specifically mentioned the silver. Zerbey, from his position at the threshold, could also see various items of property he suspected were stolen.

The five garage occupants were arrested and taken away.

Zerbey testified that he thereafter entered the garage and seized the 57 items he found there. The garage was subjected to intensive search; not only were large items like the television examined to obtain identifying numbers (and then compared to the identifying numbers on items reported stolen) but credit cards were discovered as well as a gun found hidden in a couch. It was established that many of the items were stolen property. Found with the silverware was a silver kiddish cup, engraved “Hy Walter,” and identified by Walter as the item taken from his home on the night of July 24, 1975.

Defendant asserts that his motion to suppress these items of property taken from the Bowden garage should have been granted as they were seized as a result of an illegal warrantless entry and search of the Bowden garage.

We note first of all the limited nature of the ruling made in People v. Superior Court (Bowden ), Supra. That ruling was that “we conclude from all the information known by Officer Skiba when he ordered all the occupants from the garage he possessed ‘a rational belief of criminal activity’ (citation) with which the defendants were connected and lawfully ordered all of the occupants from the garage for the purpose of temporary detention to investigate and that the trial court's determination of unlawfulness was erroneous.” (Bowden supra, 65 Cal.App.3d 511, 524, 135 Cal.Rptr. 306, 313.) The opinion goes on to state that the court was leaving unresolved the issue of the legality of the subsequent search and seizure of property within the garage.

The legality of that subsequent search and seizure is before us here. At the hearing on the suppression-of-evidence motion, the People bore the burden of proof in justifying the search and seizure without a warrant. (People v. James (1977) 19 Cal.3d 99, 106, 137 Cal.Rptr. 447, 561 P.2d 1135.) In the case before us, the People rely upon the “plain sight” rule, which provides that “ ‘objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.’ ” (People v. Sirhan (1972) 7 Cal.3d 710, 742, 102 Cal.Rptr. 385, 406, 497 P.2d 1121, 1142.) The trial court's ruling denying suppression was predicated upon the view that the objects seized in the Bowden garage had fallen in the “plain sight” of Officer Zerbey before he searched the garage and seized the property. On this appeal, the People assert the same doctrine to support the trial court's ruling.

However, as it was explained in Guidi v. Superior Court (1973) 10 Cal.3d 1, 6, 109 Cal.Rptr. 684, 687, 513 P.2d 908, 911, “(i)t is elementary that the legality of the seizure of an object falling within the plain view of an officer is Dependent upon that officer's right to be in the position from which he gained his view of the seized object.” (Emphasis added.)

Thus, in the case at bench, our inquiry narrows to the question of whether the entry by Officers Skiba and Zerbey into the Bowden garage which led to their “plain sight” observations was justified by the attendant circumstances. The garage was well within the ambit of premises protected from unreasonable search and its contents protected from unreasonable seizure, by the prohibition of such activity contained in the United States Constitution (Fourth Amendment) and the California Constitution (art. I, s 13). (People v. Hobbs (1969) 274 Cal.App.2d 402, 79 Cal.Rptr. 281.)

It has long been established that the guideline for assessing the conduct of police officers is that of reasonableness. People v. Block (1971) 6 Cal.3d 239, 244, 103 Cal.Rptr. 281, 283, 499 P.2d 961, 963, tells us that, “(a)s a general rule, the reasonableness of an officer's conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or ‘hunches,’ but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary.” (Citations omitted.)

There appears to be no question that these officers could have sought out a magistrate to obtain a search warrant for the garage after the five occupants had been ordered out and arrested. As Officer Skiba admitted, the garage could have been secured while such an effort was made to obtain a search warrant. The record indicates that Zerbey consulted with a supervising officer who came to the scene; the decision was then made to conduct the search and seizure without seeking to obtain a warrant.

At the time of entry, Skiba was generally aware of what Zerbey's anonymous caller had reported was contained in the garage, including guns; he knew also that occupants had just exited from the garage. The two young black males he first encountered who ran back inside the garage, however, were not armed and were not identified by him as being connected with any specific criminal activity. Five persons exited on his command.

The crucial question is whether Skiba was acting reasonably in entering the garage for his stated purpose, to determine whether other individuals remained there. No “hot pursuit” was involved, nor was there any suspicion of narcotic activity. We know of no rule of law which authorizes an officer who has ordered persons out of premises to make a subsequent entry upon those premises to ascertain whether anyone else is there. If such were the rule, dangerous inroads could be made upon the protection afforded to private residences by the simple mechanism of ordering out the inhabitants and then entering to make sure everyone was out. We conclude that there were no “Specific and articulable ” facts to support Skiba's first entry into the Bowden garage.

Skiba also testified that he entered the garage in order to protect himself and the other officers from physical harm. His stated fear was that someone might have remained in the garage with a weapon, and that such an armed person would present a danger to him and the other officers. In People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 637, 545 P.2d 1333, 1341, “exigent circumstances” are described as “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.”

It is understandable that a police officer may fear assault or worse at any time when he is outside of a building and does not know what is inside of it, particularly in a society where the possession of weapons is widespread, but the reasonableness of the steps he takes pursuant to such fear must be assessed in the context of the constitutional rights of citizens. There were simply no specific facts known to Skiba which supported a belief that an armed person might have remained in the garage after the exit of five occupants. An Unfounded Fear or belief of “imminent danger to life” (Ramey, supra, 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333) cannot constitute “exigent circumstances” to justify a warrantless entry into a citizens' garage.

Since Officer Skiba had no right to be where he was when he made his plain sight observations, the subsequent search and seizure by Zerbey cannot be justified. The motion to suppress evidence seized from within the garage should have been granted.


The Inadmissibility of Defendant's Confession

Defendant was initially arrested on August 29, 1975, following his detention upon exiting from the Bowden garage and the officers' search of the garage and seizure of stolen property. This arrest was predicated on the basis that defendant had received stolen property. He was given the Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) warnings. He invoked his constitutional rights and refused to talk. Defendant was released after being held for two days. He was arrested again on September 5, 1975, by the Santa Monica Police and charged with the murder, robbery and burglary offenses set forth in the charging information in the instant case.

Over appropriate objection, the jury was permitted to hear a transcription of an interview the police had with the defendant on September 5, 1975, at the Santa Monica Police Department. Defendant had been advised of his Miranda rights, had waived them and had recounted the events of July 24, 1975; he admitted participating in the crimes involved but denied that he was armed.

It is defendant Mack's position that his confession resulted from the exploitation by the police of the illegal search of the Bowden garage and the illegal seizure of property from that garage, including the “Hy Walter” silver cup taken in the burglary of the Walter premises. Hence, argues defendant, his confession is inadmissible as fruit of the poisonous tree. We agree.

Prior to making his confession, defendant was told by an officer of the Los Angeles Police Department who was at the Santa Monica Police Department that the police had everybody in custody and charged with murder, that “(w)e have witnesses; we have Property ; we have prints. We have everything. And we have all the stories. . . . And what you did and your involvement in it.” (Emphasis added.)

The inadmissibility of defendant Mack's confession appears compelled by the ruling set forth in People v. Johnson (1969) 70 Cal.2d 541, 545, 75 Cal.Rptr. 401, 403, 450 P.2d 865, 867, that “where a confession is induced by illegally seized evidence, the confession is subject to exclusion as fruit of the poisonous tree.” (See Wong Sun v. United States (1963) 371 U.S. 471, 485, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441.) In Johnson, the defendant's confession was obtained after Miranda warnings, followed by the defendant's being confronted with the confession of an accomplice which was inadmissible because it was the product of an illegal search of the accomplice's residence and an illegal arrest of the accomplice.

So, in the case before us, defendant Mack's confession was obtained only after statements of a Los Angeles police officer to defendant Mack that the police had everybody that was in on the crimes, had all of the guns in custody, had witnesses and had The property. As we have previously pointed out herein, the property, which consisted of the items taken from the Bowden garage, was illegally seized, making the initial arrest of defendant and his codefendants illegal. Defendant Mack's confession, therefore, is inadmissible by application of the fruit-of-the-poisonous-tree doctrine since the confession was induced by illegally seized evidence.

In view of our holding with respect to the errors involved in the trial court's rulings on the suppression-of-evidence motion and the admissibility of defendant's confession, we need not consider defendant's contention relative to the denial of the motion for a mistrial based on the prosecutor's exercise of peremptory challenges.

The errors of denying defendant's motion to suppress evidence and admitting defendant's confession are necessarily prejudicial and reversible errors. “(A) confession obtained from a defendant in violation of constitutional guarantees is prejudicial per se and requires reversal regardless of other evidence of guilt.” (People v. Fioritto (1968) 68 Cal.2d 714, 720, 68 Cal.Rptr. 817, 820, 441 P.2d 625, 628.) If a defendant is to be convicted, he is entitled to be convicted only on relevant, nonprejudicial evidence. (People v. Guerrero (1976) 16 Cal.3d 719, 730, 129 Cal.Rptr. 166, 548 P.2d 366.)

The judgment is reversed.


1.  . Defendant was originally charged and tried with Mark Bowden, Everett Brumfield, Carl Duckett and Maurice Duckett on all of the offenses set forth here. The first trial ended in a mistrial for defendant Mack because the jury was divided as to his guilt. We review here defendant's second trial (as well as certain other pretrial proceedings), which was severed on the People's motion from the retrial of certain other of the defendants.

2.  The victims involved in the charges against defendant Mack did not live in the 8th Avenue area.

JEFFERSON, Associate Justice.

FILES, P. J., and SWEARINGER (Assigned by the Chief Justice of California), J., concur.

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