PEOPLE v. WHITE (1987)

We have before us two unrelated appeals, one by the People numbered A035645, and the other by defendant Glen White numbered A034304.   We have consolidated them for hearing and determination.

The Appeal of the People Numbered A035645

Defendant Glen White was charged in the superior court with (Count I) altering the identification number of a firearm in violation of Penal Code section 12090, (Count II) possession of a concealable firearm by one previously convicted of a felony in violation of Penal Code section 12021, (Count III) possession of methamphetamine for sale in violation of Health and Safety Code section 11378, (Count IV) possession of stolen property in violation of Penal Code section 496, subdivision 1, (Count V) possession of percodan and codeine without a prescription in violation of Health and Safety Code section 11350, and (Count VI) possession of concentrated cannabis in violation of Health and Safety Code section 11357, subdivision (a).   Defendant Gale White was joined as a defendant with Glen White and also charged as to Count I only, with altering the identification number of a firearm.

Both defendants successfully moved under Penal Code section 1538.5 to suppress evidence deemed essential to their conviction.   The People have appealed from an order thereafter dismissing the action as to both defendants.

The People's sole appellate contention is stated as:  “Since the entry with a warrant into defendants' residence was reasonable, the trial court erroneously suppressed evidence obtained during the search and improperly dismissed the information.”

The superior court, on the defendants' motion to suppress, found that officers executing a here unquestioned search warrant failed to comply with the knock and notice requirements of Penal Code section 1531, and accordingly granted the motion to suppress.

We state the material uncontroverted evidence, as it was necessarily found true by the superior court.

A police officer was furnished with a search warrant commanding him and others to search the home of defendants Glen and Gale White for certain designated property.   The officer “knew” Glen White, that he was an amputee missing part of one leg, and that he ordinarily “got around” in a wheel chair.   Going to the Whites ' home, the officer found its front door open.   But there was also a screen door, closed but unlocked.   Looking through the screen door, the officer saw Glen White seated in a chair.   He called out that “I was a police officer, that I had a search warrant.”  (The officer thus gave notice of his authority as a police officer, and his purpose to execute a search warrant.)

He waited a “couple of seconds [our emphasis], a brief time,” without “any expectation that he was going to come to the door [because] he couldn't walk.”   The officer then entered the premises and executed the search warrant in accordance with a magistrate's instructions.   The search revealed the subject evidence of the charges against defendants Glen and Gale White.

As noted, the superior court necessarily found, from the uncontroverted evidence, the facts as above stated.

The statute with which we are here concerned, Penal Code section 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.”

Federal authority is now controlling in California on Fourth Amendment issues.  In re Lance W. (1985) 37 Cal.3d 873, 896, 210 Cal.Rptr. 631, 694 P.2d 744, states:  “[A]lthough section 1538.5 continues to provide the exclusive procedure by which a defendant may seek suppression of evidence obtained in a search or seizure that violates ‘state constitutional standards,’ a court may exclude the evidence on that basis only if exclusion is also mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment.”  (Our emphasis.)   And the rule of Lance W. has been expressly applied to Penal Code section 1538.5 motions.  (In re William J. (1985) 171 Cal.App.3d 72, 75, 217 Cal.Rptr. 163;  People v. Nelson (1985) 166 Cal.App.3d 1209, 1213, 212 Cal.Rptr. 799;  People v. MacAvoy (1984) 162 Cal.App.3d 746, 752–753, 209 Cal.Rptr. 34.)

Congress has enacted a statute identical in language with Penal Code section 1531.^**

Here the officers properly gave Glen White notice of their authority as policemen, and of their purpose to execute a search warrant.   The issue is whether their failure to give him a reasonable time to “refuse admittance” rendered the ensuing search invalid.

We look to federal authority for the answer.

The statutory language “if after notice of his authority and purpose, he is refused admittance ” was manifestly added to prevent the unnecessary breaking of a door or window of the house.  “[T]he statute, [using] the phrase ‘break open,’ ․ connotes some use of force.”  (Sabbath v. United States (1968) 391 U.S. 585, 589, 88 S.Ct. 1755, 1758, 20 L.Ed.2d 828.)   Here there was no reason or opportunity for “breaking” or “use of force.”  “When the reason of a rule ceases, so should the rule itself.”  (Civ.Code, § 3510.)

The leading federal case on the subject seems to be Miller v. United States (1958) 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332.   That case teaches (p. 313, 78 S.Ct. p. 1198):

“The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application.   Congress, codifying a tradition embedded in Anglo-American law, has declared in § 3109 the reverence of the law for the individual's right of privacy in his house.   Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house.   The petitioner could not be lawfully arrested in his home by officers breaking in without first giving him notice of their authority and purpose.”

It will be seen that Miller v. United States, supra, speaks only of the constitutional requirement, before entry, of “authority and purpose ” of the officer.   Nowhere does it appear that the householder has the “right ” to “refuse admittance.”  Such is logical, for surely an officer judicially commanded to search premises is not bound by the householder's “refused admittance.”

The rule relating to “refused admittance” is perhaps best stated by United States v. Bustamante-Gamez (9th Cir. 1973) 488 F.2d 4, 11, where the court said:

“[W]e upheld an entry through an open door when the announcement was made simultaneously with or just prior to entry.   We emphasized that section 3109 is primarily aimed at situations involving closed or locked doors․  The teaching of these cases is that ‘refusal of admittance’ may not be necessary ․ and that, in situations not involving closed or locked doors, it is relatively unimportant.   This view of the requirement is entirely consistent with an analysis based upon the interests purportedly served by the rule of announcement.   To the extent that the rule prevents violence, its utility is exhausted when the actual announcement is made․  The interest in preventing the unnecessary destruction of private property is clearly not present when officers enter through an unlocked door․”

Here, as noted, the door was “unlocked” and, at least debateably, it was “open.”   The front door of the premises was admittedly open;  that which was closed was the unlocked transparent screen door designed only to prevent insects from entering the premises.   A door is “open” when it is “so arranged to permit ingress, egress, or passage,” or is not “a confining barrier.”   (Webster's Seventh New Collegiate Dictionary, p. 590.)

And the purposes of section 3109 are said by United States v. Bustamante-Gamez, supra, 488 F.2d 4, 9, to be three:

“(1) it reduces the potential for violence to both the police officers and the occupants of the house into which entry is sought [This purpose was here served.];  (2) it guards against the needless destruction of private property [Such a purpose was here surely served.];  and (3) it symbolizes the respect for individual privacy summarized in the adage that ‘a man's house is his castle.’ ”  (And this purpose was fully served by the officer's announcement to Glen White of his authority and purpose to execute a search warrant.)

And:  “[A] homeowner has no right [our emphasis] to prevent officers armed with a warrant ․ from entering his home.”  (United States v. Bustamante-Gamez, supra, 488 F.2d 4, 11.)

Notable also is the California case of People v. Peterson (1973) 9 Cal.3d 717, 108 Cal.Rptr. 835, 511 P.2d 1187, where also, an officer executing a search warrant found his way “barred only by an unlocked, transparent screen door” through which he was able to see the home's occupants.   He “opened the screen door, stood at the threshold, identified himself and, after stating he had a warrant for a search of the premises entered.”  (P. 721, 108 Cal.Rptr. 835, 511 P.2d 1187.)   The court held:  “[N]o right of privacy was infringed as the opening of the screen door revealed nothing more than was already exposed to the officers' view and they did not physically intrude into the home until after the announcement.  [¶]  “It is equally clear that no greater risk of violence to any person on the premises was created, as at all times after approaching and knocking the officers could clearly observe the occupants within the interior and take precautionary measures if necessary.   Nor can it be argued successfully that there was a greater risk that the occupants might respond violently by reason of ignorance of the officers' identity and purpose, as the officers were immediately visible and announced their purpose to the occupants who were thus made aware of the situation and its demands.   Assuredly the personal safety of the officers, as in the case of the occupants, was not subjected to any increased danger.   We conclude that in the particular circumstances of this case there was substantial compliance with section 1531․” (Pp. 723–724, 108 Cal.Rptr. 835, 511 P.2d 1187.)

Likewise, in People v. Flores (1982) 128 Cal.App.3d 512, 180 Cal.Rptr. 368, a case with remarkably similar facts, the court held (as faithfully condensed by its headnote 3) as follows:  “A police officer executing a search warrant for a ․ residence did not enter the residence unlawfully when he yelled through an open front door and screen door ‘Police officer with a search warrant.   Demand an entry’ and then entered one or two seconds later [our emphasis] without giving the persons present a reasonable opportunity to permit or refuse peaceable entry (Pen.Code, §§ 1531, 844), ․ and where the yelling ․ just outside the open door could reasonably have been considered as having warned those inside of the officer's presence and purpose.”

No merit whatever is seen in Glen White's further contention that:  “The district attorney's office, at the section 1538 hearing, did not raise as an issue the theory that the evidence obtained in this court should not be suppressed.”   His motion to suppress under Penal Code section 1538.5 was vigorously opposed by the district attorney.

 Exercising our independent judgment on the uncontroverted facts of the case (see People v. Leyba (1981) 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961), we conclude under the federal authority we have related, that the trial court erroneously suppressed the subject evidence.   The order dismissing the action will be reversed.

The Appeal of Defendant Glen White Numbered A034304

In the criminal action from which this appeal emanates, defendant Glen White alone was found guilty of receiving stolen property, following his unsuccessful Penal Code section 1538.5 motion to suppress evidence of stolen automobile parts which were the subject of a charge against him.

We first consider the claim of an inaccurate description of the premises to be searched.   Among the premises' other detailed descriptions, they were described as located at 791 Myron Place, Ukiah, California.   At the hearing of Glen White's suppression motion he testified that he lived at 791 Myron, Ukiah.   The contention is frivolous;  we consider it no further.

In this case a search warrant was issued by a magistrate for the search for narcotics on the premises of defendant Glen White. As best we understand his appellate argument, it is that the officers executing the search warrant unconstitutionally seized stolen automobile parts which were not described therein.

It will be noted that Glen White had moved to suppress the stolen automobile parts under Penal Code section 1538.5.   In reviewing a ruling on such a motion we are taught by People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621, that:

“A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the [trial] court sitting as a finder of fact (citations omitted).   In such a proceeding the power to judge the credibility of the witnesses resolve any conflicts in the testimony, weigh the evidence and draw factual inferences is vested in the trial court.   On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.”  (Our emphasis.)

On a proceeding such as this, we are accordingly bound by the superior court's findings of fact whether they be express or implied.   The facts of the case to be considered by us are those “most favorable to the trial court's determination.”  (People v. Superior Court (Sosa) (1982) 31 Cal.3d 883, 887, 185 Cal.Rptr. 113, 649 P.2d 696.

So stating the facts, we note the following.

A police officer had investigated the case of a stripped green Cadillac.   Many parts, known to the officer, had been stolen from the vehicle.   By chance, the same officer had been assigned, among others, to execute a search warrant on the premises and a maroon Cadillac of Glen White, commanding a search for proscribed drugs.   He had often been so assigned to assist in the execution of such search warrants.   In the course of the search the officer, in plain sight, saw in the bed of a pick-up truck which he had “looked into,” a box containing automobile parts.   He “observed ” and “examined ” the parts, and concluded that they might have been taken from the stripped green Cadillac he had previously investigated.   The suspicious officer disengaged himself from the search party, and went to observe the stripped green Cadillac whose missing parts he believed he had seen in the bed of the pick-up truck.   They were found by him to be the missing parts from the green Cadillac.   The officer returned to the ongoing search for proscribed drugs, where he seized the green Cadillac's stolen parts, and continued with the search.

The apposite federal rule was reiterated by Harris v. United States (1968) 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, as follows:

“It has long been settled that [contraband or stolen] 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.”

It will be noted that the officer, describing his conduct in respect of the stolen Cadillac parts used the terms “looked into,” “observed” and “examined” which have been emphasized by us in our factual narration.

Glen White's principal reliance is upon the recent case of Arizona v. Hicks (1987) 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347, where in the course of a legitimate but warrantless search of a home for weapons and their user, a suspicious police officer picked up and moved stereo components, thus, from the moving, acquiring their serial number and knowledge that they were stolen;  the stolen stereo components were thereupon seized.

It was held:  “[[T]he officer's] moving of the equipment ․ did constitute a ‘search’ separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment.   Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent's privacy interest․  But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent's privacy unjustified by the exigent circumstance that validated the entry.   This is why ․ the ‘distinction between “looking” at a suspicious object in plain view and “moving” it even a few inches' is much more than trivial for purposes of the Fourth Amendment.”   (––– U.S. ––––, pp. –––– – ––––, 107 S.Ct. 1149, pp. ––––, 1152, 94 L.Ed.2d 347, pp. 353–354.)

The instant issue is narrowed to the question whether the stolen parts were moved by the officer before he had knowledge that they were stolen.

 It will be remembered that the officer testified that he “looked” into the pick-up, and he “observed” and “examined” the items at issue.  “Observe ” has the common meaning, “to take notice of.”  (Webster's Third New International Dictionary, p. 1558.)   And “examine ” is defined by the same work (p. 790) as “to look over” and to “inspect visually.”   The superior court of the case before us thus reasonably inferred that in observing and examining the Cadillac parts, the officer had not moved them.   We are bound by that implied finding.  (See People v. Lawler, supra, 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

Neither error nor abuse of discretion appears in the superior court's ruling.

We have been unpersuaded that the above noted officer's participation in the search warrant's execution somehow rendered the seizure of the parts invalid.   People v. Albritton (1982) 138 Cal.App.3d 79, 187 Cal.Rptr. 652, lends no aid to the argument.   In that case, unlike that before us, an officer joined in a warranted search for narcotics for the sole purpose of conducting an exploratory search for stolen motor vehicles;  stolen automobiles were found by him which, the appellate court held, should have been suppressed.   Here the officers were specifically commanded to search for and seize proscribed drugs;  in the course of that search one of them observed in plain sight, stolen automobile parts.   And the officer in question testified that:  “I worked partly [narcotic] task force investigations and partly my normal auto theft investigations.”

We do not reach, or consider, the People's argument that the search was also permitted by Vehicle Code section 2805, which states:  “A member of the California Highway Patrol [as was one of the officers of the case before us] may inspect any vehicle of a type required to be registered under this code on a highway or a public garage, repair shop, parking lot, used car lot, automobile dismantler's lot, or other similar establishment, for the purpose of locating stolen vehicles, investigating the title and registration of vehicles, or inspection of vehicles wrecked or dismantled.”

The order of dismissal of the appeal numbered A035645 is reversed, and the “judgment of conviction” of the appeal numbered A034304 is affirmed.

A035645

I respectfully dissent.

The majority concludes that Penal Code section 1531 was not violated.   In so holding, the majority relies primarily on federal cases interpreting a federal statute (18 U.S.C. § 3109).   Yet, as I read In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, our role is not to apply federal legislation (or case law interpreting federal legislation), but rather to apply federal constitutional standards.  “To hold [lower federal court decisions apply] here would be to say federal interpretations of a federal statute now bind California courts in interpreting sections 844 and 1531.   But Lance W. makes it clear only the remedy of exclusion has been affected.  (See In re Lance W., supra, 37 Cal.3d 873, 886–887 [210 Cal.Rptr. 631, 694 P.2d 744].)”  (People v. Neer (1986) 177 Cal.App.3d 991, 1000, 223 Cal.Rptr. 555;  emphasis in original.)

The majority seems to conclude that the officers did not effect a “breaking” because the screen door was unlocked or transparent.   I believe the law is to the contrary.  “Although the common law rule was first articulated to regulate entry by force, it is not limited to entries effected by physical violence․  [N]o more is needed ‘than the opening of a door or window, even if not locked, or not even latched.   Pulling open a screen door held closed only by a spring is sufficient.’  [Citation.]”  (People v. Rosales (1968) 68 Cal.2d 299, 303, 66 Cal.Rptr. 1, 437 P.2d 489.)  “The fact [the police officer] faced a screen door through which he could see did not excuse compliance with section 1531.”  (People v. Neer, supra, 177 Cal.App.3d 991, 995, 223 Cal.Rptr. 555.)

Nor can I agree with the majority's apparent conclusion that the officer's announcement of authority and purpose satisfied the statute.  “Even where the police duly announce their identity and purpose, forcible entry is not permitted under the statute if the occupants of the premises are not first given an opportunity to surrender the premises voluntarily.”  (Jeter v. Superior Court (1983) 138 Cal.App.3d 934, 937, 188 Cal.Rptr. 351;  see also People v. Hobbs (1987) 192 Cal.App.3d 959, 964, 237 Cal.Rptr. 742.)

The majority mistakenly relies on People v. Flores (1982) 128 Cal.App.3d 512, 521, 180 Cal.Rptr. 368, which involved a danger of imminent escape or destruction of evidence so as to excuse compliance with Penal Code section 1531.   The narrow issue herein was whether the defendant “refused admittance” to the officers by remaining in his seat for a “couple of seconds.”

In People v. Abdon (1972) 30 Cal.App.3d 972, 977–978, 106 Cal.Rptr. 879, the officers could see through the screen door that the occupant lying on the couch was just awakening.   The court held the five or six second delay prior to their entry into the house could not reasonably be understood by the officers to indicate a refusal to admit.   The present case appears factually indistinguishable.   The officer could see defendant through the screen door and knew he was an amputee.   Defendant's inaction for a “couple of seconds” cannot be reasonably construed as a refusal to admit.

Indeed, as I understand the arguments, the People do not dispute the trial court's finding that the officers did not wait long enough to be “refused admittance.”   In my view, the question on appeal is not whether Penal Code section 1531 was violated, but rather whether upon such demonstrated violation, the subsequent search is unreasonable under the Fourth Amendment mandating exclusion of the evidence seized.

I would follow the analysis in Jeter v. Superior Court, supra, 138 Cal.App.3d 934, 188 Cal.Rptr. 351, 938 and People v. Neer, supra, 177 Cal.App.3d 991, 223 Cal.Rptr. 555, and conclude that exclusion is required under the federal Constitution.  (See also People v. Franco (1986) 183 Cal.App.3d 1089, 228 Cal.Rptr. 527 [violation of Pen.Code, § 844 compels exclusion of evidence seized].)  Accordingly, I would uphold the order below.

A034304

Although I concur in the result reached by the majority, I believe the discussion in the majority opinion concerning “an inaccurate description of the premises to be searched” fails to address the pivotal issue raised by defendant.   Defendant's point is not that the police were at the wrong house, but that they exceeded the scope of the search extending into vehicles not authorized by the warrant.

Both the state and federal Constitutions require the search warrant to describe with particularity the place to be searched.  (U.S. Const., 4th Amend.;  Cal. Const., art. I, § 13;  see also Pen.Code, § 1525.)   Thus, “ ‘․ only the premises described in the warrant may be searched․’ ”  (People v. Dumas (1973) 9 Cal.3d 871, 880, 109 Cal.Rptr. 304, 512 P.2d 1208 [warrant authorizing search of apartment and garage did not include defendant's automobile which was parked on the street 100 feet away].)

The Dumas court held that “a warrant supporting the search of a motor vehicle must, at the very least, include some explicit description of a particular vehicle or of a place where a vehicle is later found.”  (People v. Dumas, supra, 9 Cal.3d at p. 881, 109 Cal.Rptr. 304, 512 P.2d 1208;  emphasis added.)   Thus, in People v. Elliott (1978) 77 Cal.App.3d 673, 144 Cal.Rptr. 137, the court upheld the search of a car parked in the garage where the warrant had authorized a search of the house and appurtenant buildings.   And in People v. Childress (1979) 99 Cal.App.3d 36, 160 Cal.Rptr. 47, the court upheld the search of an inoperable vehicle parked in the back yard.   There, the warrant authorized a search of storage areas inside and outside the house, and the court held the language could be construed to include the vehicle, which was filled with trash and seemed to be used as nothing but a storage facility.

In the present case, the warrant authorized a search of defendant's apartment “and any garage or outbuildings located on the property.”   The gray pick-up truck was parked in the front yard.   Moreover, it appeared to be inoperable;  it was littered with trash and was completely blocked in by a partially disassembled Volkswagen van.   The trial court could reasonably conclude that the police did not exceed the scope of the warrant.

FOOTNOTES

FOOTNOTE.   “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 a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.  (18 U.S.C.A. § 3109.)

ELKINGTON, Associate Justice.

HOLMDAHL, J., concurs.