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The PEOPLE of the State of California, Plaintiff and Respondent, v. Lavada Carole KING, Defendant and Appellant.
Mrs. King, charged with possession for sale of a restricted dangerous drug (Health & Saf.Code, § 11911), moved to suppress evidence under Penal Code section 1538.5, and after a hearing her motion was denied. She later submitted the cause on the transcript of the preliminary hearing and the testimony given at the motion to suppress, and she was found guilty of the lesser offense of possession of a restricted dangerous drug (Health & Saf.Code, § 11910). On appeal Mrs. King questions, as she is entitled to do (Pen.Code, § 1538.5(m)), the correctness of the order denying her motion to suppress evidence, and she contends the questioned evidence was obtained in violation of the search and seizure provisions of the Fourth Amendment to the Constitution.
Summary of the Facts
About 6 p. m. on 28 January 1969 Deputy Sheriff Lambe of the Los Angeles County Sheriff's office was given a photograph of a man named Gifford and told of an outstanding warrant for Gifford's arrest for failure to appear in court on a petty theft charge. This information came from Deputy Butts of the narcotic detail, who said that Gifford was living in an apartment which belonged to Mrs. King, that Mrs. King kept a large amount of dangerous drugs in her bedroom under her bed, that on one occasion Deputy Butts had been present in her apartment when a person purchased dangerous drugs from her.
Deputy Lambe verified the fact that there was a warrant dated 3 December 1968 for the arrest of Gifford, and later that night with four other deputies he went to Mrs. King's apartment. At 11:45 p. m. he knocked on the door of her apartment, and in response to an inquiry from within he identified himself as a representative of the Sheriff's Department. The apartment door was opened by a man whom he recognized as Gifford, and he told Gifford that he had a warrant for his arrest. Gifford stepped outside the apartment and was handcuffed and then taken back into the apartment and seated on the sofa. Deputy Lambe asked the whereabouts of Mrs. King, and he was told she was in the rear bedroom. Thereupon Lambe and another deputy went to the rear of the apartment, where they found the door to Mrs. King's bedroom closed. The two deputies opened the bedroom door, turned on the lights, entered the bedroom, and found Mrs. King under the covers in bed. Lambe asked if she was Lavada King, and when she said she was he said he had information she was engaged in the sale of illegal drugs. She threw back the covers, thereby disclosing that she was dressed in normal street clothes, but remained on the bed. Thereafter, according to the testimony of the officers, a deputy entered the bedroom and said he had found a bennie in the living room. At that point Lambe ordered Mrs. King out of the bed, and when he looked under the bed he found a brown paper sack which contained numerous plastic bags filled with pills subsequently identified as benzedrine. On the discovery of these items he arrested Mrs. King.
Mrs. King's two young daughters, Ricky, 13, and Randy, 11, were in bed in another bedroom of the apartment. Their bedroom was also entered by two deputies, who made a flashlight inspection of their room. Further searches in the apartment were made of the closets, the dresser drawers, a jewelry box, the rugs, and the kitchen.
At the hearing on the motion to suppress there was a conflict in the evidence whether the benzedrine pill in the living room had been discovered before or after Officer Lambe found the paper sack under the bed and placed Mrs. King under arrest. At the same hearing Deputy Lambe was asked the purpose of his visit to the apartment, and he replied: ‘I proceeded to that location in Cudahy to arrest Mr. Gifford. I also planned on conducting a narcotics investigation if the opportunity presented itself.’
Propriety of the Search
The issue presented by the motion to suppress evidence was whether the search of Mrs. King's bedroom and the seizure of dangerous drugs therein violated the Fourth Amendment to the Constitution. The learned trial judge thought not, and in denying the motion to suppress he observed that the officers went to the apartment with a proper warrant for the arrest of Gifford and therefore were lawfully situated within the apartment and entitled to find out whether there was contraband on the premises; additionally, he concluded that their advance information about a supply of dangerous drugs on the premises had been substantiated by their discovery of the benzedrine pill in the living room.
In reviewing the correctness of the trial court's ruling on the motion, we are restricted to the evidence presented to the trial court on that motion. Since the officers did not have a warrant to arrest Mrs. King or a warrant to search her apartment, that evidence, in order to justify a search and seizure without a warrant, must be sufficient to establish probable cause for Mrs. King's arrest. (Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.) It is, of course, hornbook law that the known existence of contraband on the premises would be insufficient in itself to justify a search and seizure without a warrant. (Chapman v. United States, 365 U.S. 610, 614–615, 81 S.Ct. 776, 5 L.Ed.2d 828).
We begin with an analysis of the statement of Deputy Lambe that there was a dual purpose in his visit to Mrs. King's residence at 11:45 p. m.: first, to execute the warrant for the arrest of Gifford for his failure to appear in court on a petty theft charge, and second, to conduct a narcotic investigation if the opportunity presented itself. Justification for the second purpose of the officers' visit was based on (a) Deputy Butts' statement to Deputy Lambe that he was present in the apartment on one occasion when a person purchased dangerous drugs from Mrs. King, and (b) Deputy Butts' statement that he had information that Mrs. King kept a large amount of dangerous drugs in her bedroom under her bed. As to item (a) nothing was said about the date, the time, the occasion, or the circumstances of the purchase of dangerous drugs from Mrs. King. Such a statement would have been insufficient to obtain a warrant because of its lack of specificity. As to item (b), information about the presence of a large amount of dangerous drugs under Mrs. King's bed, the source of this information was not shown. In the form in which it was presented this item amounted to nothing more than an assertion by Deputy Lambe that he had been told by Deputy Butts that the latter had been told by someone that Mrs. King kept a large amount of dangerous drugs under her bed. This is a classic instance of hearsay on hearsay, whose source and whose reliability has not been disclosed and therefore cannot be evaluated. It is clear that the information in the form in which it came to Deputy Lambe would have been insufficient to obtain a search warrant for the apartment or a warrant for the arrest of Mrs. King. (People v. Hamilton, 71 A.C. 189, 192–195, 77 Cal.Rptr. 785, 454 P.2d 681.) It is also clear that the officers themselves did not believe they had probable cause to arrest Mrs. King for possession of narcotics or probable cause to obtain a warrant to search her apartment. To bolster a claim of probable cause the Attorney General in his brief on appeal refers to testimony given at the preliminary hearing, at which Deputy Lambe testified that Deputy Butts told him he had information from a reliable informant that Mrs. King was engaged in the sale of dangerous drugs from her apartment and that she had made sales to numerous people. It is sufficient to point out, (a) the testimony at the preliminary hearing was not before the trial court on the motion to suppress evidence where its validity would have been subject to test by cross-examination, (b) the information itself would not have been sufficient to obtain a warrant for arrest in that information furnished by a reliable informant does not establish probable cause for arrest unless (1) the reliability of the informant is developed, and (2) the source of his information is revealed. (Spinelli v. United States, 393 U.S. 410, 415–416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 113–115, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); People v. West, 237 Cal.App.2d 801, 805, 47 Cal.Rptr. 341.) Information furnished by one police officer to another is insufficient to establish probable cause if the source of the information is not revealed. (Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 113–115, fn. 4, 84 S.Ct. 1509 (1964); People v. Hamilton, 71 A.C. 189, 192–195, 77 Cal.Rptr. 785, 454 P.2d 681; People v. West, 237 Cal.App.2d 801, 805–806, 47 Cal.Rptr. 341.)
The Attorney General is thus forced to justify the search by the events which occurred on the premises after 11:45 p. m. Specifically, he claims that the search of Mrs. King's bedroom was an appropriate incident of the arrest of Gifford, and in any event that the officers were authorized to address inquiries to Mrs. King as part of an investigation conducted from a location at which they had a right to be present.
The Attorney General first argues that the officers made a lawful entry into the apartment. We agree with that part of his argument, and we accept his view that the officers substantially complied with the demand-for-admittance requirement to make an arrest and properly arrested Gifford when he opened the apartment door. (Pen.Code, § 844.) While it is true that Gifford was physically outside the apartment at the time the officers put handcuffs on him, he was in his stocking feet, he lived on the premises, and it was reasonable and proper for the officers to take him back into the living room in order to perfect the physical arrangements of his arrest. But while we recognize the authority of the officers to enter the living room, their authority did not extend to a general midnight search of an apartment which contained three other persons behind closed doors in two rear bedrooms. Gifford's arrest was unrelated to drugs or contraband and was one for the offense of failure to appear in court. An arrest may not be used as a pretext to search for evidence (People v. Haven, 59 Cla.2d 713, 719–720, 31 Cal.Rptr. 47, 381 P.2d 927), and any search of the apartment which would carry some logical relationship to the charge for which Gifford was arrested would necessarily be a limited one designed primarily to secure the safety of the arresting officers. Here, it is apparent that from the time the two deputies went to Mrs. King's bedroom their activities were connected with and designed to carry out the second purpose of their visit, to conduct a narcotic investigation. With that in mind the officers infiltrated the entire apartment and without invitation, request, announcement, or demand burst into the bedrooms of Mrs. King and of her two daughters.
At that point the search became a general, exploratory search designed to uncover contraband of whose existence the officers had received previous information. Such a search is contrary to the Fourth Amendment and cannot be justified by what it later turns up. (People v. Brown, 45 Cal.2d 640, 643, 290 P.2d 528.) The factual situation here is similar to that in People v. Baca, 254 Cal.App.2d 428, 62 Cal.Rptr. 182, where a warrant had been issued for the arrest of the defendant for failure to appear in court. The police went to defendant's residence, found her in the bathroom, ordered her to come out of the bathroom, and when she did so arrested her in the adjoining bedroom. They then entered the bathroom which she had just left, searched it, and found heroin. The court considered this search an exploratory one contrary to the Fourth Amendment in that it had no connection with defendant's arrest or relationship to her failure to appear in court. At bench we find a comparable situation. Gifford's arrest for failure to appear in court did not justify a general search of the apartment in which he lived, particularly since it was not his apartment and since three other persons lived there. The exhaustive analysis of exploratory searches undertaken for this court by Mr. Justice Ashburn in People v. Mills, 148 Cal.App.2d 392, 306 P.2d 1005, is pertinent. We there said: ‘The search was wholly exploratory, a quest for evidence of other crimes. Such a procedure has been condemned repeatedly and for many years. [In] People v. Roberts, 47 Cal.2d 374, 303 P.2d 721 * * * the court said: ‘The privilege to enter to render aid does not, of couse, justify a search of the premises for some other purpose. An arrest may not be used as a pretext to conduct a general search of one's premises for incriminating evidence, and it has been repeatedly said that where the right to conduct a search is obtained ostensibly for one purpose it may not be used in reality for another. (See Harris v. United States, 331 U.S. 145, 153, 67 S.Ct. 1098, 91 L.Ed. 1399; Love v. United States, 4 Cir., 170 F.2d 32, 33.)’' (148 Cal.App.2d at p. 399, 306 P.2d at p. 1010.)
In our view the actions of the deputies from the time they entered Mrs. King's bedroom until the time they left it violated the search and seizure provisions of the Fourth Amendment. Hence the search could not be justified by the subsequent discovery of the benzedrine pill in the living room (whether discovered before or after Mrs. King's arrest) or the subsequent discovery of the supply of benzedrine under Mrs. King's bed. Such discoveries were immaterial to the validity of the search. (People v. Reeves, 61 Cal.2d 268, 38 Cal.Rptr. 1, 391 P.2d 393; People v. Brown, 45 Cal.2d 640, 290 P.2d 528.) Clearly the search of Mrs. King's bedroom would be condemned under the standards of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. But even under the standards of search and seizure which applied prior to Chimel the search was a thoroughly unreasonable one carried out in a manner which amounted to an unwarranted intrusion into the privacy of the home. Even if a search warrant could have been obtained, we doubt that any magistrate would have authorized service of the warrant during the nighttime, a specific authorization which the statute requires in order to effect nighttime service. (Pen.Code, § 1533; cf. People v. Mills, 251 Cal.App.2d 420, 59 Cal.Rptr. 489.) It seems axiomatic that absent exigent circumstances a search without a warrant is subject to the limitations which apply to a search with a warrant, and if the search does not meet the latter's standards, it is unreasonable.
The factual situation at bench closely resembles that disapproved by a unanimous decision of the California Supreme Court in Greven v. Superior Court, 71 A.C. 303, 78 Cal.Rptr. 504, 455 P.2d 432. While the issue in that case centered on the legality of the entry under Penal Code section 844, it is evidence that the court viewed with disfavor warrantless searches in connection with midnight visitations to residential premises. The court said: ‘Turning to the facts of the case at bench we meet an even more pointed example of the kind of entry which the rule of announcement is designed to avoid. Here [nine] officers having probable cause to arrest one resident of a large house jointly occupied by other persons approached the house in the early hours of the morning [1 a. m.], rapped on the door and, after waiting 10 to 15 seconds and receiving no response, broke in at the door [i.e. opened an unlocked door] and moved swiftly into the residence in the manner of night raiders. All but one of the residents of the house were, quite understandably, in their beds (perhaps accounting for the failure to respond within 10 to 15 seconds), and the only exception, the person sought to be arrested, was reading at the kitchen table. [p. 311, 78 Cal.Rptr. p. 437, 455 P.2d p. 509] * * * The other officers, using flashlights, searched the several darkened bedrooms which branched off from the hallway. [p. 306, 78 Cal.Rptr. p. 506, 455 P.2d p. 434] * * * Clearly these facts show a shocking and unjustified intrusion upon the privacy of the occupants.’ [p. 311, 78 Cal.Rptr. p. 437, 455 P.2d p. 509.] The same unjustified intrusion into privacy and the same unreasonable invasion of personal security appear in the present case. (Cf. People v. Edwards, 71 A.C. 1141, 1145, 80 Cal.Rptr. 633, 458 P.2d 713.)
Interviews with Suspects
As a second line of defense the Attorney General, citing People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852, suggrsts that ‘officers may conduct certain investigations without probable cause for arrest and may seek out suspects for questioning.’ To state the facts of this case is to refute the applicability of the rule. While officers are entitled to seek out suspects for questioning, they are not entitled to do so by unannounced midnight visitations into the suspects' bedrooms. At a minimum the right of the people to be secure in their persons, houses, papers, and effects comprehends protection against such intrusions. (U.S.Const., Fourth Amend.; Calif. Const., Art. I, sec. 19.)
We conclude that the motion to suppress evidence should have been granted. The judgment is therefore reversed.
I dissent. The record discloses evidence more than sufficient to support the trial court's finding that there was probable cause for appellant's arrest and for the search which led to the seizure of the substantial supply of dangerous drugs found in her possession. The evidence is uncontradicted that she was engaged in the sale of these drugs, as she herself expressed it, ‘for a little extra money.’
The several elements which combined to establish a solid foundation for the trial court's finding include the following:
(1) The reliable information imparted to Officer Lambe, the arresting officer, by his fellow officer, Officer Butts, that the latter, while serving as an undercover agent, had personally witnessed a sale of narcotics made by appellant in the selfsame apartment.
(2) The accidental discovery of the benzedrine tablet in the small box in appellant's living room. Officer Williams found this item, not in the course of any search, but while complying with Gifford's request that the officer look into the box to obtain his probation record. Officer Williams reported this ‘find’ to Officer Lambe before the latter commenced the search in the course of which he discovered the supply of contraband under the bed.
(3) Appellant's furtive conduct in going to bed fully dressed in her street clothes and pretending to be asleep. The inference is almost inescapable that she hurried to the bedroom when the officers knocked and announced their identity. Reason dictates that the officers very properly could regard this ‘sly’ conduct as ‘furtive.’
(4) The information which Officer Butts had received from his unidentified informant and which he had imparted to Officer Lambe, namely, that appellant kept a large supply of dangerous drugs under her bed in her apartment and that she had made numerous sales to many people. It is conceded, of course, that information of this character does not suffic to provide probable cause. It is a contributing factor only when it is supported by substantial corroborating evidence.
It is submitted that proof of the first two elements above listed, standing alone, constituted sufficient support for the trial court's finding and that the latter two elements provided additional support. The references in the majority opinion to certain conflicts in the evidence are so phrased as to indicate a disposition to depart from the ancient and accepted rules than an appellate court is enjoined to view the evidence in the light most favorable to the judgment and that the weighing of the evidence is a process which resides in the province of the trier of the facts.
The majority opinion violates one of the most basic rules of appellate review in usurping the factfinding function of the trial court. Despite the clear and consistent testimony of Officer Lambe that no search was commenced until after Officer Williams reported his finding of the benzedrine tablet, the majority opinion proceeds upon the factual premise that the officers launched their search immediately upon entering the apartment. In adopting this factual premise, the majority have accepted as true the testimony of the witnesses for the defense and have rejected the testimony of the officer which the trial court found to be truthful.
Another basic fallacy in the majority opinion is revealed by its erroneous statement that the Attorney General has asserted ‘that the search of Mrs. King's bedroom was an appropriate incident of the arrest of Gifford.’ Respondent has made no such argument. More importantly, the reported remarks of the trial judge clearly show that his ruling was not based upon any such untenable theory.
A careful reading of the testimony of appellant and of her house guest, Mr. Gifford, discloses that in practically all substantial respects, other than the sequence of events, it either corroborated the testimony of the officers or left it undisputed. Appellant frankly admitted both her possession and her dealership in drugs and Gifford admitted a long criminal record which apparently prompted the trial judge to comment that the procedures and precautions taken by the officers were justified by their reasonable apprehension that he might be dangerous.
It is self-evident that the officers went to appellant's apartment for two purposes, that is, to arrest Gifford and to conduct such investigation into appellant's narcotic activities as circumstances might permit. Both purposes were consistent with the duties of law enforcement officers. As stated in the Supreme Court's decision of the factually similar case of People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852, 854, in which four officers were admitted to a dwelling by the defendant's mother: ‘[I]t is not unreasonable for officers to seek interviews with suspects * * * or to call upon them at their homes for such purposes.’
It cannot be denied that under the described circumstances the officers gained their entrance into appellant's apartment in a lawful manner and for a reasonable and legally permissible purpose. It is a wellsettled proposition in California that circumstances short of probable cause to make an arrest may justify investigatory procedures and if the investigation then reveals probable cause to make an arrest, the investigating officers may arrest the suspect and conduct a reasonable incidental search. (People v. Mickelson, 59 Cal.2d 448, 450 et seq., 30 Cal.Rptr. 18, 380 P.2d 658; Irwin v. Superior Court, 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 462 P.2d 12.)
Not only was Deputy Lambe justified in relying upon his fellow officer's statement as to what he personally had observed with respect to appellant's previous act of selling a dangerous drug in the same apartment, but he also could regard this reliable information as corroborative of that provided by the unidentified informant. (People v. Sandoval, 65 Cal.2d 303, 308 –310, 54 Cal.Rptr. 123, 419 P.2d 187; People v. Marquez, 259 Cal.App.2d 593, 599–600, 66 Cal.Rptr. 615.)
Added to the constituent element of reliable information were the officer's personal observations of appellant's suspicious conduct and his knowledge that Deputy Williams had found the illicit benzedrine tablet in her living room while looking for a paper at Gifford's suggestion in the manner above described.
Since Deputy Lambe had probable cause to arrest appellant before he began his search by looking under appellant's bed, there is no tenable basis for the claim that the search was illegal. ‘A search that is substantially contemporaneous with arrest may precede the arrest, so long as there is probable cause to arrest at the outset of the search [citations].’ (People v. Marshall, 69 Cal.2d 51, 61, 69 Cal.Rptr. 585, 591, 442 P.2d 665, 671, and numerous decisions cited.) The following statement of the well-settled law found in People v. Talley, 65 Cal.2d 830, 835–837, 56 Cal.Rptr. 492, 497, 423 P.2d 564, 568, is particularly applicable to the facts in the case at bench:
‘A peace officer may arrest a person without a warrant ‘[w]henever he has reasonable cause to believe that the person to be arrested has committed a felony, * * *.’ (Pen.Code, § 836.) Reasonable or probable cause exists when the facts and circumstances within the knowledge of the officers at the moment of the arrest are sufficient to warrant a prudent man in believing that the defendant has committed an offense. (Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142; People v. Schader, 62 Cal.2d 716, 722, 44 Cal.Rptr. 193, 401 P.2d 665.) The question of probable cause to justify an arrest without a warrant must be tested by the facts which the record shows were known to the officers at the time the arrest was made. (People v. Privett, 55 Cal.2d 698, 701, 12 Cal.Rptr. 874, 361 P.2d 602; People v. Paul, 147 Cal.App.2d 609, 618, 305 P.2d 996.)
‘Information obtained from others may be relied upon to show probable cause. (Ker v. State of California, 374 U.S. 23, 35–36, 83 S.Ct. 1623, 10 L.Ed.2d 726; Draper v. United States, 358 U.S. 307, 311–312, 79 S.Ct. 329, 3 L.Ed.2d 327; People v. Smith, 50 Cal.2d 149, 151, 323 P.2d 435; People v. Boyles, 45 Cal.2d 652, 655–656, 290 P.2d 535.) Although information provided by a known informer of unproved reliability or by an anonymous informer is relevant on the issue of probable cause, an arrest ordinarily may not be based solely on such information, and evidence must be presented to the court that would justify the conclusion that reliance on the information was reasonable. (People v. Gallegos, 62 Cal.2d 176, 179, 41 Cal.Rptr. 590, 397 P.2d 174; People v. Reeves, 61 Cal.2d 268, 273–274, 38 Cal.Rptr. 1, 391 P.2d 393; Willson v. Superior Court, 46 Cal.2d 291, 294, 294 P.2d 36.) * * * Furtive or suspicious conduct may, of course, serve to substantiate information from an informant. (Willson v. Superior Court, supra, 46 Cal.2d 291, 295, 294 P.2d 36; People v. Melchor, 237 Cal.App.2d 685, 693, 47 Cal.Rptr. 235; People v. Currier, 232 Cal.App.2d 103, 107, 42 Cal.Rptr. 562; People v. Landry, 230 Cal.App.2d 775, 780, 41 Cal.Rptr. 202.) In our opinion the information from the first informer was sufficiently corroborated so that reliance thereon was reasonable, and the trial court's determination that the search was proper as an incident to a lawful arrest is amply supported by the record.’
This is no suitable time, I submit, for the courts to strain to reverse judgments convicting dealers in narcotics whose guilt is unquestioned and especially in cases such as this in which the law enforcement officers acted reasonably and in good faith. I definitely do not share the expressed sympathy and solicitude for the questionable sensibilities of a known and admitted dealer in narcotics who was sharing her apartment with a man whose criminality had been established by a lengthy record.
I would affirm the judgment.
FLEMING, Associate Justice.
ROTH, P. J., concurs.
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Docket No: Cr. 17301.
Decided: July 07, 1970
Court: Court of Appeal, Second District, Division 2, California.
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