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

Arthur Wendell PARSLEY and Elizabeth Hale, Petitioners, v. SUPERIOR COURT, RIVERSIDE COUNTY, Respondent, PEOPLE of the State of California, Real Party in Interest.

Civ. 12111.

Decided: October 27, 1972

Herbert M. Porter, Laguna Beach, for petitioners. Byron C. Morton, Dist. Atty. of Riverside County, Howard M. Dabney, Asst. Dist. Atty., and Ronald S. Smith, Deputy Dist. Atty., for real party in interest. Joseph P. Busch, Dist. Atty., of Los Angeles County, Harry Wood, Head, Appellate Division, Los Angeles and Harry B. Sondheim and Daniel L. Bershin, Deputy Dist. Attys., amici curiae on behalf of real party in interest.


Petitioners were charged by information with possession of heroin for sale (Health & Safety Code, § 11500.5), possession of a restricted dangerous drug (Health & Safety Code, § 11910), and possession of narcotics paraphernalia (Health & Safety Code, § 11555). Petitioners' motion in superior court under Penal Code, § 995, was denied, and petitioners seek a writ of prohibition on the grounds they were not legally committed and were committed without reasonable or probable cause.

A search warrant was issued on March 15, 1972, for premises located at 6322 La Sierra Avenue, City of Riverside. Officer Waggaman's supporting affidavit for issuance of a search warrant included averments that on March 6, 1972, he conducted a ‘skin search’ upon a confidential informant, gave him recorded city money, and turned him over to the custody of an undercover police officer. He then observed the informant in the company of the undercover officer drive to the Riverside address. The informant was observed by the undercover officer making contact with a person known to reside in the residence. The undercover officer observed the confidential informant return to the officer's vehicle where he gave the officer a $10.00 balloon of heroin. Officer Waggaman then met with the confidential informant and undercover officer. The informant was searched and the serial number of the money used for the buy was recorded. The contents of the balloon were analyzed and determined to contain an opiate. On March 9, 1972, the same procedure was followed with the same results.

The affidavit further included a request for excusal of compliance with Penal Code, § 1531,1 based, in part, upon the averment that the suspect in the premises possessed a 12 gauge riot shotgun, which he kept loaded and was known to answer the door with the shotgun in his possession. The search warrant specifically excused compliance with Penal Code, § 1531, in its execution.2

At approximately 7:50 p. m. on March 17, 1972, Officer Waggaman and a number of other officers proceeded to the residence to execute the warrant. Officer Yonkers entered through the window of the bedroom with gun drawn while Officer Waggaman came in from the front. Petitioner Parsley was then lying on the bed. A search of the premises resulted in the contraband which is the subject of the offenses charged.

Petitioners contend the issuing magistrate exceeded his jurisdiction in authorizing noncompliance with Penal Code, § 1531. The rationale of the cases involving Penal Code, § 844, are equally applicable to cases arising under Penal Code, § 1531. (People v. Gastelo, 67 Cal.2d 586, 587–588, 63 Cal.Rptr. 10, 432 P.2d 706; Kinsey v. Superior Court, 263 Cal.App.2d 188, 191, 69 Cal.Rptr. 556.) It is well settled that police officers may be excused from compliance with the ‘knock-notice’ requirements of Penal Code, § 1531, where they act on a reasonable and good faith belief based upon specific information that compliance would increase their peril, frustrate the arrest or permit the destruction of evidence. (People v. Rosales, 68 Cal.2d 299, 305, 66 Cal.Rptr. 1, 437 P.2d 489; People v. Hammond, 54 Cal.2d 846, 9 Cal.Rptr. 233, 357 P.2d 289; People v. Maddox, 46 Cal.2d 301, 306, 294 P.2d 6; People v. Bryant, 5 Cal.App.3d 563, 568–569, 85 Cal.Rptr. 388; Kinsey v. Superior Court, supra, 263 Cal.App.2d 188, 191, 69 Cal.Rptr. 556; People v. Scott, 259 Cal.App.2d 268, 279, 66 Cal.Rptr. 257.) While noncompliance is usually justified by facts occurring at the time the officer approaches the house or, once at the door, begins to comply with the section, (see People v. Cooper, 17 Cal.App.3d 1112, 1121, 95 Cal.Rptr. 471; People v. Peralse, 4 Cal.App.3d 773, 780, 84 Cal.Rptr. 604) a number of cases have held noncompliance proper where the officer did not comply because of information he received prior to the time he approached the location to effect his entry. (People v. Tribble, 4 Cal.3d 826, 94 Cal.Rptr. 613, 484 P.2d 589; People v. Colvin, 19 Cal.App.3d 14, 22–23, 96 Cal.Rptr. 397; People v. Gonzales, 14 Cal.App.3d 881, 884–886, 92 Cal.Rptr. 660; People v. Stewart, 11 Cal.App.3d 242, 245–247, 89 Cal.Rptr. 707 [disapproved as to another point in People v. Beagle, 6 Cal.3d 441, 451–452, 99 Cal.Rptr. 313, 492 P.2d 1]; People v. Myers, 8 Cal.App.3d 268, 271–273, 87 Cal.Rptr. 246; People v. Kahre, 6 Cal.App.3d 680, 683–684, 86 Cal.Rptr. 291; People v. Bryant, supra, 5 Cal.App.3d 563, 569, 85 Cal.Rptr, 388: Guerrero v. Superior Court, 2 Cal.App.3d 136, 139–141, 82 Cal.Rptr. 443; People v. Vasquez, 1 Cal.App.3d 769, 775, 777, 82 Cal.Rptr. 131; People v. Newell, 272 Cal.App.2d 638, 643, 77 Cal.Rptr. 771; People v. Robinson, 269 Cal.App.2d 789, 792–793, 75 Cal.Rptr. 395.)

In People v. Hammond, supra, 54 Cal.2d 846, 9 Cal.Rptr. 233, 357 P.2d 289, compliance with Penal Code, § 844, was excused where an informer advised the officers that ‘. . . defendant was in his residence preparing some heroin for sale, was then under the influence of heroin, and had a gun; . . .’ The court held that with this information the officers were entitled in good faith ‘. . . to conclude that if they informed the defendant of their presence . . ., he . . . might attempt to obtain and use his gun.’ (People v. Hammond, supra, 54 Cal.2d 846, 849, 854, 9 Cal.Rptr. 233, 235, 238, 357 P.2d 289, 291, 294.)

In People v. Bryant, supra, 5 Cal.App.3d 563, 85 Cal.Rptr. 388, compliance with Penal Code, § 844, was excused where the informer advised the officer that defendant carried a gun at all times; it was always loaded; the informer had seen the gun; and other persons in the apartment were armed. (People v. Bryant, supra, 5 Cal.App.3d 563, 566, 567, 569, 85 Cal.Rptr. 388.)

In dealing with Fourth Amendment issues it is clearly the policy of the law to prefer initial determinations made by magistrates over independent action of the police. (Aguilar v. Texas, 378 U.S. 108, 110–111, 84 S.Ct. 1509, 12 L.Ed.2d 723, 726–727.) It would seem the better rule to hold that whenever facts are known to the police in advance of obtaining a search warrant which they reasonably believe will excuse their compliance with Penal Code, § 1531, they should submit this question to the issuing magistrate for his independent determination. Such submission will help insure that the purposes and policies of Penal Code, § 1531, are carried out and give the citizen added protection from arbitrary police intrusion.

The Supreme Court of Colorado has held that the question of waiver of ‘knock-notice’ must be submitted to the magistrate unless the facts justifying a forced entry become known to the police subsequent to obtaining the warrant. (People v. Lujan, Colo., 484 P.2d 1238, 1241.) Here, it is urged upon this court by petitioners that the issue cannot be submitted to the magistrate.

Like Penal Code, § 844, the purposes and policies underlying Penal Code, § 1531, are: ‘. . . (1) the protection of the privacy of the individual in his home [citations]; (2) the protection of innocent persons who may also be present on the premises where an arrest [or search] is made [citation]; (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice [citations]; and (4) the protection of police who might be injured by a startled and fearful householder.’ (Duke v. Superior Court, 1 Cal.3d 314, 321, 82 Cal.Rptr. 348, 352, 461 P.2d 628, 632.) The sudden invasion of a home without warning carries with it danger that through misunderstanding and misinterpretation officer and citizen alike may be seriously injured or even killed. (Duke v. Superior Court, supra, at pp. 320–322, 82 Cal.Rptr. 348, 461 P.2d 628.) Hence, it should not be the policy of the courts to treat lightly those cases where it is claimed that the facts justified noncompliance with Penal Code, § 1531.

However, despite the dangers involved in noncompliance, it cannot be demanded that an officer comply with the code section when to do so would place his safety in peril. (People v. Hammond, supra, 54 Cal.2d 846, 9 Cal.Rptr. 233, 357 P.2d 289; People v. Bryant, supra, 5 Cal.App.3d 563, 85 Cal.Rptr. 388.) It is our primary concern that no person be injured in the execution of a search warrant. We find the policy of submitting facts known in advance regarding Penal Code, § 1531, compliance to the magistrate praiseworthy. Such submission of facts creates an additional check on the dangers which this section and its exceptions attempt to obviate and takes advantage of the detached and neutral magistrate in coming to a decision. It creates a procedure whereby the judiciary can oversee the exceptions already judicially engrafted upon the statute and interposes between citizen and police the impartial judgment of a judicial officer so that an objective mind may weigh the manner to be used to invade a residence in order to enforce the law. Although the procedure has heretofore been unrecognized by the appellate courts of this state, we find it meritorious.

We are in agreement with the Supreme Court of Minnesota which held ‘. . . that where the affidavit in support of a petition for a search warrant sets forth ‘exigent circumstances' with sufficient particularity to justify dispensing with the necessity for announcing authority and purpose, and the issuing magistrate includes in the search warrant specific authority to enter the premises without such an announcement, the entry is lawful and evidence thus obtained is not inadmissible on that account.’ (State v. Parker, 283 Minn. 127, 166 N.W.2d 347, 353; see also State v. Linder, 291 Minn. 217, 190 N.W.2d 91.)3

Although we approve of the procedure of submitting facts to the magistrate for his evaluation, we ‘. . . must still insist that the magistrate perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.' (Aguilar v. Texas, supra, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.) Where, as here, the affidavit is based upon an informer's hearsay statement, ‘. . . two requirements must be met: (1) The affidavit must allege the informant's statement in language which is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in the statement; and (2) the affidavit must contain some underlying factual information from which the magistrate issuing the warrant can reasonably conclude that the informant was credible or his information reliable.’ (People v. Superior Court, 6 Cal.3d 704, 711, 100 Cal.Rptr. 319, 324, 493 P.2d 1183, 1188.)

Once a magistrate has determined that compliance with Penal Code, § 1531, is not required and so directs in the search warrant, the entry may still be challenged in subsequent court proceedings where (1) the facts before the magistrate were insufficient to justify noncompliance, or (2) at the time of entry the facts had changed to such an extent that noncompliance with Penal Code, § 1531, was not justified. If the magistrate refuses to waive compliance or waives it on insufficient facts and the police possess knowledge of sufficient facts to justify their entry without compliance at the time of entry, the entry is lawful and any evidence thus obtained is not made inadmissible because of the noncompliance with Penal Code, § 1531.

We now turn to the facts of the instant case. It is clear that the observations regarding the purchases of heroin were derived from personal knowledge. Unfortunately, the statement regarding the shotgun is not as clear. However, from the clarity of observation concerning the purchases of heroin, we believe it reasonably inferred that the information concerning the shotgun was the result of the informer's personal observation. (People v. Cain, 261 Cal.App.2d 383, 386, 67 Cal.Rptr. 922; People v. Hernandez, 255 Cal.App.2d 478, 482, 63 Cal.Rptr. 133; People v. Barthel, 231 Cal.App.2d 827, 831–832, 42 Cal.Rptr, 290; see People v. Hamilton, 71 Cal.2d 176, 181, 77 Cal.Rptr. 785, 454 P.2d 681.) This is a ‘commonsense’ inference to be drawn from reading the affidavit in a ‘commonsense’ manner. Two heroin purchases were made by the informer at the suspect residence and a commonsense interpretation of the affidavits leads to the conclusion that when making these purchases the informer not only saw the shotgun but observed it in the suspect's possession when he answered the door. As stated in People v. Aguirre, 10 Cal.App.3d 884, 891, 89 Cal.Rptr. 384, 388, ‘[t]he source aspect of the first segment of information carries over to the second.’ (See Guerrero v. Superior Court, supra, 2 Cal.App.3d 136, 141, 82 Cal.Rptr. 443.)

In United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, the prevailing opinion states at p. 108, 85 S.Ct. at p. 746:

‘. . . the Fourth Amendment's commands, like all constitutional requirements are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.’ (People v. Superior Court, supra, 6 Cal.3d 704, 711, 100 Cal.Rptr. 319, 493 P.2d 1183.)

Officer Waggaman recited in his affidavit that he ‘was told by the confidential informant and numerous other persons acquainted with the suspect . . . that the suspect is in possession of a 12 guage [sic] riot-type shotgun which he keeps loaded’ and that he ‘is known to answer his door while armed with said shotgun.’ It was further developed in the testimony of Officer Waggaman at the preliminary hearing that the confidential informant had actually seen the gun although this was not specifically stated in the affidavit. The facts known to the officers in the instant case are not reasonably distinguishable from Hammond, supra, and Bryant, supra, and were sufficient to justify noncompliance with Penal Code, § 1531, exclusive of submitting the issue of noncompliance to the issuing magistrate.

Petitioners make the rather hysterical claim that out holding will open the floodgates to abuse and that no-knock search warrants will become standard and automatic. We cannot join in the supposition that the magistrates will so completely abdicate their responsibilities. It has been our experience that magistrates are sincere, careful and meticulous in seeing that affidavits supporting search warrants comply with the law. If there is a practice on the part of magistrates to rubber stamp police actions, it is a practice with which we are unaware and we do not choose to believe that in the future magistrates will abdicate their responsibilities in dispensing with the announcement procedures set forth in Penal Code, § 1531. Such an action on the part of the magistrate is serious business. We must assume that all magistrates know this and will conduct themselves accordingly and that they will insist in every case that a proper and adequate showing under the law will be made before they will allow the announcement procedures to be excused.

However, were our faith in any particular magistrate misplaced, a new dimension in protection for the defendant has been added in Theodor v. Superior Court, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234 [filed 9/28/72]. Under Theodor, the defense may now controvert the truth of the facts contained in the affidavit upon which the search warrant is issued and test the credibility of the officer and the basis of his allegations by which he has asked the magistrate to dispense with announcement procedures.

We have addressed ourselves only to the issue that compliance with announcement procedures may be excused in situations involving peril to the officers since, as we have indicated, the allegations in this case were insufficient to excuse compliance under any other theory. We do not mean however to close the door to a similar practice in situations where compliance with statutory announcement procedures would frustrate the arrest or permit the destruction of evidence under judicially approved standards. (People v. Lee, 20 Cal.App.3d 982, 98 Cal.Rptr. 182; People v. Colvin, supra, 19 Cal.App.3d 14, 96 Cal.Rptr. 397; People v. Cooper, supra, 17 Cal.App.3d 1112, 95 Cal.Rptr. 471; People v. Gonzales, supra, 14 Cal.App.3d 881, 92 Cal.Rptr. 660; People v. De La Sierra, 13 Cal.App.3d 528, 91 Cal.Rptr. 674; Pierson v. Superior Court, 8 Cal.App.3d 510, 87 Cal.Rptr. 433.)

Petitioners also contend the information supporting the issuance of the warrant was stale. The information was obtained on March 6 and 9, 1972, and the warrant was issued March 15, 1972. The information was not stale. (People v. Scott, supra, 259 Cal.App.3d 268, 277, 66 Cal.Rptr. 257; People v. Tillman, 238 Cal.App.2d 134, 139, 47 Cal.Rptr. 614; People v. Nelson, 171 Cal.App.2d 356, 359–360, 340 P.2d 718 [disapproved as to another point in People v. Butler, 64 Cal.2d 842, 844–845, 52 Cal.Rptr. 4, 415 P.2d 819].)

Petitioners' vague attack on the exercise of the magistrate's discretion is frivolous. Sufficient facts were placed before the magistrate to justify issuance of the search warrant. (See Price v. Superior Court, 1 Cal.3d 836, 840, 83 Cal.Rptr. 369, 463 P.2d 721.)

Petitioners further argue the identities of the confidential informant and the undercover officer should have been disclosed to them at the preliminary hearing. Under the present state of the record, it does not appear either was a material witness to the crimes crimes charged and their contention is adequately answered in People v. Sewell, 3 Cal.App.3d 1035, 83 Cal.Rptr. 895. We do not intend to preclude further attempts by petitioners to obtain disclosure under a proper showing.

The alternative writ of prohibition is discharged; the petition for a peremptory writ of prohibition is denied.


1.  Penal Code, § 1531, provides: ‘The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.’

2.  The affidavit also requested waiver of Penal Code, § 1531, notice requirements on the basis of averments regarding possible destruction of evidence. ‘Your affiant further states that it has been his experience and he has been told by other officers working in the field of Vice and Narcotics that people who possess narcotics in their residences will often attempt to destroy said drugs by flushing them down the toilet.’ While this allegation is obviously accurate, it has been held insufficient under current law to justify non-compliance since it is an allegation of general propensity of a certain type of offender to effect disposal of contraband. (People v. DeSantiago, 71 Cal.2d 18, 76 Cal.Rptr. 809, 453 P.2d 353; People v. Gastelo, 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706.) Therefore, we consider the instant matter only in the light of allegations concerning the safety of the officers in executing the warrant.

3.  New York, having the benefit of the authorization of this procedure by statute (New York Code Crim.Proc., § 799 McKinney Supp. [1969]), has held that statute complies with the requirements of the Fourth Amendment. (People v. De Lago (1965) 16 N.Y.2d 289, 266 N.Y.S.2d 353, 213 N.E.2d 659, cert. den. 383 U.S. 963, 86 S.Ct. 1235, 16 L.Ed.2d 305.) Other statutes providing for prior judicial approval of a no-knock entry are the Comprehensive Drug Abuse and Control Act of 1970 (Title 21 U.S.C.A., p. 879): The District of Columbia Criminal Procedure Act (D.C.Code Ann., Crim. Proc., § 23–591). No. Dakota Cent.Code, § 29–29–08; and Nebr.Rev.Stat. § 29–411.) At the present time, De Lago is the only published case considering the constitutional validity of any of these statutes. It is a matter of more than passing interest that the Supreme Court denied certiorari in De Lago.

GARDNER, Presiding Justice.

KERRIGAN and GABBERT, JJ., concur.

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Docket No: Civ. 12111.

Decided: October 27, 1972

Court: Court of Appeal, Fourth District, Division 2, California.

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