LONDON v. PEOPLE (1978)

We issued an alternative writ of mandate on the petition of Richard London, for the purpose of testing the constitutional validity of a police search of a “zipper bag” owned by him.

In San Francisco, June 8, 1975, a notorious homicide was committed in which one “Popeye” Jackson and a female companion were slain by gunfire. An eyewitness described the crimes' perpetrator as a black male with a hairstyle that looked “like a short natural.”

On July 5, 1975, London was arrested in Napa County, on an arrest warrant emanating from Santa Clara County, on charges of robbery. From a notebook in his possession a police officer and a Federal Bureau of Investigation agent were led to the home of one Lorna in which, she told them, London had been residing. Lorna consented to a search of a room used by London, and of the contents of his zipper bag found therein. In the bag, among other things, were found a .45 caliber automatic pistol and a “natural” “black Afro wig.”

Thereafter, in the Santa Clara County proceedings where, we are informed, the automatic pistol was vital evidence, London moved under Penal Code section 1538.5 to suppress evidence of the zipper bag's contents. The contention of the People in resisting the motion was that the search of the bag was with the authoritative consent of Lorna. At the hearing, a Napa County police officer testified in respect to the consent, and the search. Also at the hearing was a Federal Bureau of Investigation (F.B.I.) agent who had been subpoenaed by London as support for a theory of “invidious discrimination” (see Murgia v. Municipal Court, 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44) “because he's an alleged participant in a (terrorist) group known as The Tribal Thumb or . . . The New World Liberation Front.” The agent declined to testify concerning such matters under direction of his superiors and according to Evidence Code section 1040, subdivision (b). Such testimony was thus unavailable to London and to the People.

The superior court denied the motion to suppress, whereupon London sought relief by way of mandamus from this court. Here also, of course, the only issue presented was that of Lorna's consent. On the authority of People v. Cruz, 61 Cal.2d 861, 40 Cal.Rptr. 841, 395 P.2d 889, we found the search invalid and, by an unpublished written opinion, ordered the Santa Clara County Superior Court to grant London's motion to suppress. Our decision became final, and we assume it was complied with.

London became a suspect in the San Francisco shooting of “Popeye” Jackson and his companion. Finding probable cause to believe him guilty of those crimes, the grand jury of that county returned an indictment charging him with two counts of murder. In the superior court London, a white man, again moved to suppress the zipper bag's contents as evidence; this time, we are informed, the natural black Afro wig was the item of concern. At the San Francisco hearing the People relied upon the theory of “emergency,” or “exigent circumstances,” in their opposition to the motion to suppress.

Evidence adduced at the San Francisco hearing follows.

London's July 5, 1975, arrest in Napa County occurred while he was driving a van. Under the vehicle's front seat a dagger was found. Elsewhere in it, the police officers found a .12-gauge shotgun with a sawed-off barrel loaded with 5 rounds of 00 buckshot, a fully loaded .380 caliber automatic pistol, a loaded .30 caliber carbine, and an abundant supply of ammunition. The F.B.I. was notified of the arrest, and the next day one of its agents visited the Napa County officers. (This time, at the San Francisco hearing, the bureau's agent was permitted to give testimony, relevant portions of which we now set forth.)

“(I)n a raid that was conducted on the Tribal Thumb in Menlo Park on April 4th, 1975, a couple of months prior to this, (law enforcement officers) had found several blasting caps and explosive paraphernalia such as diagrams and et cetera normally used by people trying to make explosives. . . . That they were a dangerous group, . . . they had been involved with weapons and that they their full danger potential was unknown because of the type people they associated with, because of the weapons and explosives that they were involved in. . . . (A brother agent had) said that if I had any connection with them, since Mr. London was apparently a member of this group and since they were in Napa, if I did any further investigating in the Napa region into anybody connected with the group that I should be extremely alert for the danger potential not only to myself, fellow officers, children, but anyone else that might be around.” In Napa County, the agent was shown a paper which had been found in London's vehicle; it appeared to him as “some sort of electrical circuitry diagram” having “something to do with a vehicle.” He was aware of “a possibility that it could be the electrical wiring needed to detonate some type of an explosive device.”

It was the next day that the agent and a Napa County police officer visited the above mentioned Lorna, whereupon, according to the agent, the following events ensued:

“She answered the door, at which time both Sergeant Land and myself identified ourselves as a member of the Napa Police Department and I as a Special Agent, Federal Bureau of Investigation, at which time she invited us into the apartment. . . . We told her that an individual by the name of London had been arrested. . . . (S)he did know a fellow by the name of Richard London, at which time I asked her in what connection. . . . She said that . . . she had met a Richard London and others in connection with her college course. And then, apparently, she subsequently corresponded, how frequently I don't know, until he had contacted her just prior to this date. Q. Okay. While there did you ask her whether or not Mr. London left any property or things there? A. Yes, I did. Q. And what was her response to that? A. She said that he had stayed in the other bedroom and that he had left some stuff behind. Q. Okay. Now, did you speak to her regarding that stuff? A. Yes, I did. Q. What did you say? A. I asked her what he had left behind. She said she wasn't certain and but she didn't want it in there because if he had been in trouble and been arrested she no longer wanted the items there. So with this in mind, I asked her if she would be willing to sign a consent to search, particularly that room, because I wondered if there was anything in there which I was primarily concerned that there might be some explosives or weapons or whatever. . . . And so prior to going in there I asked her if she would sign the consent, which she did. We explained to her that she had a right not to sign it but she signed it. Sergeant Land and I both witnessed it. At that time we then went into the bedroom, took it out of the closet very gently out to the kitchen table where we laid it on the floor. Q. And what was that that you took out of the closet? A. There was one duffel bag and some other miscellaneous items. . . . I set it down by the table . . ., carefully removing each one. And we looked at them, the three of us together. We listed them, one, two, three. And then, as gently, opened the zipper bag and took out the items one at a time. Q. In the zipper bag did you find any weapons? A. Yes, I did. Q. What did you find? A. I found a .45 caliber. . . . Q. . . . Did you also find a wig in that? A. Yes. I'm not sure if the wig was separate or in the duffel bag. . . . Q. Okay. Now, did you actually though find any explosives in that particular duffel bag? A. No. We found just items pertaining to weapons, ammunition, that type of thing. Q. Now, once Lorna . . . told you she didn't want that material in her apartment any longer, were you going to leave it there? A. No. She told me that, that before I actually went, before she even signed the consent, that she wanted all this stuff out of there because of his being arrested. She wanted absolutely nothing to do with anything he may have left behind. . . . Q. Okay. Now, were you going to in taking that bag, were you going to put those bags in your patrol car before you searched them? A. Not before I searched them. Absolutely not. . . . Q. You didn't want to take that chance? A. I wasn't going to do that, no, sir. Q. Did you feel there could have been electric blasting caps in that? A. Definitely. They found blasting caps, as I understand, in the Menlo Park raid, which was the same group. Q. Okay. Now, you weren't going to leave the bag with Lorna . . .? Were you going to allow the bag to be thrown out? A. No, sir. Q. Why is that? A. Well, because I thought I should take it. She no longer wanted it. And at that particular point, which is it was in an apartment complex, I was afraid maybe she would throw it in the garbage, or whatever. If there should be blasting caps in there this was a huge complex with maybe 200 or 300 apartments, with all the kids and such, and I was afraid that some child would get a hold of it or whatever. I didn't think it was good common sense to leave something like that around. Q. So you weren't going to leave it? A. Right. Q. You were going to take it out of there, is that correct? A. Definitely, particularly since she wanted to get rid of it.”

It is now settled Fourth Amendment law that a police search in the absence of a search warrant will be validated, upon a proper showing “by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.” (McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153.) And since there is no formula for the determination of reasonableness “(e)ach case is to be decided on its own facts and circumstances.” (Go-Bart Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374.)

In respect of this rule the high court has held that: “The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.” (Warden v. Hayden, 387 U.S. 294, 298-299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782.)

The state's Supreme Court has similarly ruled. Elaborating the rule of Warden v. Hayden, supra, the court in People v. Sirhan, 7 Cal.3d 710, 738-739, 102 Cal.Rptr. 385, 404, 497 P.2d 1121, 1140, cert. den., 410 U.S. 947, 93 S.Ct. 1382, 35 L.Ed.2d 613, stated: “The emergency or exigency theory has also been applied in cases where the officers' conduct was prompted by the motive of preserving life and reasonably appeared to be necessary for that purpose” such as where there are “circumstances suggesting the possibility of an unexploded bomb in an apartment . . . .” In such a situation “the mere possibility that there might be such evidence in the house” (emphasis added) will ordinarily support a warrantless search.

Other applications of the theory of emergency, or exigent circumstances, will be found in People v. Terry, 70 Cal.2d 410, 424, 77 Cal.Rptr. 460, 454 P.2d 36, cert. den., 399 U.S. 911, 90 S.Ct. 2205, 26 L.Ed.2d 566; People v. Smith, 63 Cal.2d 779, 797, 48 Cal.Rptr. 382, 409 P.2d 222, cert. den., 388 U.S. 913, 87 S.Ct. 2119, 18 L.Ed.2d 1353; People v. Grubb, 63 Cal.2d 614, 618-619, 47 Cal.Rptr. 772, 408 P.2d 100; People v. Burke, 61 Cal.2d 575, 578-579, 39 Cal.Rptr. 531, 394 P.2d 67; People v. Bradford, 28 Cal.App.3d 695, 702, 104 Cal.Rptr. 852; Romero v. Superior Court, 266 Cal.App.2d 714, 718-719, 72 Cal.Rptr. 430.

We are of the opinion that the superior court in the case, and on the evidence, presently before us could and did reasonably conclude that “exigent circumstances” constitutionally justified the search of London's zipper bag. Under such circumstances its ruling must be upheld by us. (People v. Lawler, 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

We have considered London's insistent contention that, exigent circumstances or not, we are bound under principles of res judicata and collateral estoppel, by our above noted earlier ruling in the Santa Clara County case, that the same search was constitutionally invalid. The contention is found to be without merit for the reasons we now state.

As pointed out, in the Santa Clara proceedings the evidence was addressed to the only issue and theory there presented, that of the consent of Lorna. Neither the issue of, nor evidence relating to, emergency or exigent circumstances was then before the superior court or this court. Such evidence was reasonably available only through the F.B.I. which, as above stated, did not allow its agents to testify. In the case now before us the latter theories were urged, supported by evidence, argued, considered, and determined.

It will be remembered that London's Santa Clara County motion to suppress evidence under Penal Code section 1538.5 was finally granted, under our mandate, by the superior court. Subdivision (j) of section 1538.5 provides: “If defendant's (s 1538.5) motion is granted at a special hearing in the superior court, the people, if they have additional evidence relating to the motion and not presented at the special hearing, shall have the right to show good cause at the trial why such evidence was not presented at the special hearing and why the prior ruling at the special hearing should not be binding, . . . .” The statute thus makes it clear that there was absent any legislative intent that the suppression ruling would be binding thereafter upon the People under principles of res judicata or collateral estoppel. For if the People could later establish good cause why the new theory and evidence were not earlier presented, they were permitted to relitigate the issue of constitutional validity at the trial. And of course the determination of such good cause is confided to the sound discretion of the superior court.

The state's high court addressed itself to the subject in Stapleton v. Superior Court, 70 Cal.2d 97, 104-105, 73 Cal.Rptr. 575, 580, 447 P.2d 967, 972. There also, the reviewing court had mandated the superior court to suppress evidence. It then stated: “Since we are ordering that the motion to suppress be granted, the People may raise this question at trial under the quoted portion of section 1538.5, (j), provided that, as they apparently claim, they have ‘additional evidence’ concerning the reasonableness of the search which is not contained in the record before us, and provided that they can show good cause why that evidence was not presented at the special hearing.” Thus it appears that a reviewing court's final decision in mandate, such as ours in the Santa Clara County proceeding, does not alter the statutory rule that in a proper case the suppression issue may again be litigated. And no reasonable distinction may be made between such relitigation “at the trial,” and in a case like that before us in a suppression hearing in another county, before trial in that county.

Also of assistance in our problem is People v. Medina, 6 Cal.3d 484, 492, 99 Cal.Rptr. 630, 635, 492 P.2d 686, 691, where the court found no implications of res judicata, or collateral estoppel, to attend a reviewing court's “written opinion which decides the merits of a search and seizure contention.” Instead the court concluded that such a written opinion was controlling according to the doctrine of “law of the case.” (Pp. 491, fn. 7, 492, 99 Cal.Rptr. 630, 492 P.2d 686.) And it was said: “In determining whether the law of the case will control the decision on the subsequent appeal, however, the appellate court should keep in mind that ‘the doctrine of the law of the case, which is merely a rule of procedure and does not go to the power of the court, has been recognized as being harsh, and it will not be adhered to where its application will result in an unjust decision.’ ” (P. 492, 99 Cal.Rptr. p. 635, 492 P.2d p. 691.) It reasonably follows that where “good cause” is shown why a theory and evidence were not earlier presented, the law of the case will not prevent relitigation of a motion to suppress.

We have of course considered also this question of good cause. Such a determination, of necessity, must be confided to the sound discretion of the superior court.

We observe first that the F.B.I. agent, on whose testimony proof of exigent circumstances necessarily depended, was unavailable at the earlier Santa Clara County proceedings, through no fault of the People, or of the Santa Clara County prosecutor. Further, London appears to have suffered no substantial prejudice from the related procedural incidents. Indeed he seems to have benefited instead, for despite existent but then unavailable evidence to the contrary, the search of his zipper bag was found invalid, and the .45 caliber automatic pistol could not be used against him at the Santa Clara County trial. And, of course, it is in the interest of justice that in the search for truth, all constitutionally and legally valid, competent, and available evidence be placed before the trier of fact.

Under these several circumstances we may not reasonably hold that the superior court abused its discretion in denying London's motion to suppress evidence in the San Francisco County proceedings.

The peremptory writ is denied, and the alternative writ hereinbefore issued is discharged.

ELKINGTON, Associate Justice.

RACANELLI, P. J., and LOW (Assigned by the Chairperson of the Judicial Council), J., concur.