PEOPLE v. FRIEDMAN (1980)

The People appeal, under section 1238 of the Penal Code, from an order made under section 1385 of that code after an order made under section 1538.5 suppressing evidence.

Originally, defendant was charged in a six-count indictment with various narcotic and firearm offenses. Five of those counts were dismissed under section 995 of the Penal Code and are not involved on this appeal. The remaining count (the original count I) charged possession of cocaine in violation of section 11352 of the Health and Safety Code. The suppression motion was granted on the ground that the evidence was obtained as the result of a violation of section 844 of the Penal Code. Since the trial court stated expressly that it believed the officer's version of the events, we set forth the substance of that testimony:

Two police officers, in uniform and driving a marked patrol car, observed defendant driving over a hillside street at what they regarded as an excessive speed. They “paced” defendant's car and clocked it as going 35 miles per hour in a 25-mile zone. As defendant turned into a short street leading to his residence,¹ the officers activated their flashing red lights. Defendant, having slowed to about 10-15 miles per hour, entered his driveway and drove into the open door of his two-car garage. The officers, having parked their vehicle, entered the garage, approached the defendant's car and asked for his driver's license. When defendant opened a small purse to secure the license, one of the officers saw, in plain sight in the purse, a vial of cocaine. It is that discovery which is here involved.

I

Although not argued in the trial court, defendant's written motion in that court, and his brief here, contends that the warrantless entry into the garage as a violation of the principles announced in People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333. We agree with that contention. The People argue that the entry was within an exception to the Ramey rule, in that the officers were in “fresh pursuit” and in an emergent situation. The record before us does not support that proposition. The officer's testimony is that he entertained no fear for the safety of either himself or his partner, and that the open garage doors were the only means of egress from the garage. Defendant was first alerted to the police a few yards from his own home; the officers admitted that a stop on the public street was prevented by the narrowness of that street; his driving into the garage gave no evidence of an attempt to escape. The officers, parked outside the garage, had only to wait a few seconds for defendant to leave his car and come out of the garage to serve the citation for speeding. No necessity for a warrantless entry into the garage existed.

II

The stated ground for granting of the motion was a violation of section 844 of the Penal Code. We agree that that, also, was a valid ground for suppression. The People argue that, since the officers were in full uniform and had activated their red lights, defendant had adequate notice of their capacity and of their intent at least to interrogate him. However, section 844 requires of an officer three things: identification of the officer's official status; explanation of the purpose of entry; and a demand for admittance. Assuming that defendant knew of the officer's status and had surmised their purpose in flashing their red lights, the “demand” requirement was flagrantly ignored. It is settled that a private garage, even though physically detached from a residence, is a place the privacy of which is protected by both Ramey and section 844; (People v. Bruce (1975) 49 Cal.App.3d 580, 584-587, 122 Cal.Rptr. 648) and that section 844 applies even though the entry is made through an open door. (People v. Bradley (1969) 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129.) Before the officers entered into a protected place, defendant was entitled, in lieu of such an invasion, to a chance to come out of the garage and discuss his situation with the officers outside that place. Nothing in the officer's testimony suggests that, given a demand for entry, defendant would not voluntarily have come out of the garage.²

The order appealed from is affirmed.

The seizure of the cocaine may be upheld on either of two independent grounds.

First: Penal Code section 844 states: “To make an arrest, a private person, if the offense be a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.”

Although a closed garage is sometimes treated as the equivalent of a house, and an entry through an open door of a house may be treated as a “break,” those terms are not appropriate to the facts of this case. The garage was standing open exposing the entire interior to the street which was only a few feet away. The presence of uniformed officers in a marked patrol car with red lights flashing told the defendant that the officers wanted to detain him for some official business. For the officers to have “demanded admittance” by some oral pronouncement would have served no useful purpose. The garage afforded neither privacy nor an expectation of privacy.

The purposes and policies of section 844 are stated in Duke v. Superior Court (1969) 1 Cal.3d 314, 321, 82 Cal.Rptr. 348, 352, 353, 461 P.2d 628, 632, 633, as follows: “… (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 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.”

None of these policies would have been served by the formalism which the majority opinion mandates. The defendant knew the officers wanted to talk to him and he obviously pulled into the first convenient place in which he could stop.

This incident cannot reasonably be equated with the act of breaking into a house, which was the subject of People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333.

Second: Assuming that the officers' entry into the garage was illegal, the cocaine was not “come at by exploitation of that illegality.” The vial containing cocaine was exposed to the officers' view when defendant opened his purse to remove his driver's license. As the majority opinion points out, the officers “had only to wait a few seconds for defendant to leave his car and come out ․” Whether the defendant was inside or outside the garage, he would have been required to show his driver's license. If the officers had waited for defendant to step outside, the purse, the driver's license and the cocaine would have been exposed just the same. It is not necessary to suppress evidence which would have been discovered in the normal course of lawful police procedure. (See Lockridge v. Superior Court (1970) 3 Cal.3d 166, 170, 89 Cal.Rptr. 731, 474 P.2d 683; People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 671, 145 Cal.Rptr. 795; People v. Aylwin (1973) 31 Cal.App.3d 826, 838, 107 Cal.Rptr. 824.)

I would reverse the order of dismissal.

FOOTNOTES

1.  The officer described the street as a “cul-de-sac.”

2.  According to the record, the unannounced entry was made before defendant had had even a chance to leave his automobile.

KINGSLEY, Associate Justice.

JEFFERSON (Assigned by the Chief Justice of California), J., concurs. FILES, Presiding Justice (dissenting):