PEOPLE v. LARSON (1987)

Gerald Carter Larson appeals from a judgment of conviction entered upon his plea of guilty to possession of a firearm by a felon (Pen.Code, § 12021 1 ) which followed the trial court's denial of his section 1538.5 motion to suppress a handgun and ammunition.   Appellant argues that because the misdemeanor bench warrant for his arrest was executed after 10 p.m., in violation of section 840,² his arrest was illegal, requiring exclusion of the evidence which was produced by the accompanying search.   We disagree and affirm the judgment.

The Suppression Hearing

At the preliminary hearing, the transcript of which, by stipulation, was admitted into evidence at the hearing on the section 995 and section 1538.5 motions, Concord Police Detective Gary Norvell of the Special Investigation Unit testified that on the evening of November 25, 1984, he and Detective Al Cruz, both dressed in plainclothes, were driving in an unmarked car on Athene Drive in Concord.   At 9:45 p.m., Detective Norvell saw appellant on the sidewalk in front of 2152 Athene Drive.   The detective knew that there was an outstanding warrant for appellant's arrest.   A computer check which the detective had run a week earlier revealed a $5,000 warrant for a violation of section 496 (receiving stolen property).   Detective Norvell asked his dispatch personnel to run the same check, and they confirmed that the arrest warrant was still outstanding.   But they did not indicate whether the violation was a misdemeanor or a felony.   Detective Norvell was aware of the bail schedule amounts for various offenses and assumed that the warrant was a felony warrant based upon the charge and amount.   He never saw a copy of the actual warrant.³

Detective Norvell observed appellant make “a couple” of trips from a vehicle parked on the street to the open, lighted garage at 2152 Athene Drive, and he saw one, and possibly two, other persons with appellant.   The detective knew that appellant had a “propensity” for carrying weapons and was concerned about his and Detective Cruz's safety should they attempt to arrest appellant while they were in plainclothes.   He therefore radioed for assistance, and Officer Norman Woehrman responded.

Officer Woehrman testified at the suppression hearing that he did not have a copy of the warrant and was unable to operate his computer to check its status.   He had been informed of the warrant and, based on the amount of bail and the offense, assumed it was a felony warrant.   When Officer Woehrman arrived at the scene a little after 10 p.m., he observed three persons inside the garage.   He knew appellant did not live at that address and that he had a history of weapons possession.   Officer Woehrman feared for his safety because of the number of people in the garage and appellant's reputation for possessing weapons;  he radioed for assistance.

When Officer Robert D'Ambrosio arrived at approximately 11 p.m., he and Officer Woehrman entered the garage and detained appellant, who attempted to flee when he saw them.   Officer Woehrman pat-searched appellant, found a .45 caliber semiautomatic pistol, and arrested appellant for being a felon in possession of a gun and on the warrant.   According to Officer Woehrman's report, the arrest was effected at 11:01 p.m.

A copy of the bench warrant was introduced into evidence.   Above the case number were the handwritten letters, “Misd.”   The warrant was not endorsed for night service.   Other than the letters, “Misd,” nothing on the warrant indicated that it was a misdemeanor warrant.

Appellant argued that the officers violated section 840 because the warrant was executed after 10 p.m. and none of the exceptions to the daytime service requirements applied.   He also maintained that if the court validated service based upon the officers' good-faith belief that the warrant was a felony warrant, the safeguards of section 840 would become meaningless.

The People contended that the arrest was valid based upon the “continuous transaction” exception recognized in People v. Zepeda (1980) 102 Cal.App.3d 1, 7–8, 162 Cal.Rptr. 143, which upheld a judgment of conviction where a search warrant was executed after 10 p.m., although the police began executing it prior thereto.   The People also argued that the “good faith” exception propounded in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 applied.

The court denied both the section 995 and section 1538.5 motions, finding:  (1) the continuous transaction exception applied;  (2) the police, knowing of arrest warrants, had probable cause to detain appellant and to pat down for weapons;  and (3) the officers acted under a good-faith belief that they were executing a felony arrest warrant which had no nighttime restriction.

Appellant subsequently pleaded guilty to possessing a firearm.   The court struck an enhancing allegation and sentenced appellant to the mitigated term of 16 months' imprisonment, with a fine of $100 pursuant to section 2085.5.

Scope of Review

“A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as a finder of fact.   [Citations.]  The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court.   On appeal all presumptions favor proper exercise of that power, and the trial court's findings—whether express or implied—must be upheld if supported by substantial evidence.  [Citations.]”  (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.)

Discussion

Appellant contends that the arrest violated section 840 and that therefore it was illegal, rendering the subsequent search and seizure invalid.   Although he does not assert any constitutional violation, he urges this court to order suppression of the evidence as remedy for the statutory violation.

 “[W]hether evidence is subject to exclusion because of an illegal search and seizure must be determined pursuant to the Fourth Amendment of the federal Constitution;  the state Constitution no longer affords independent grounds for suppression of evidence for crimes occurring after June 6, 1982, the effective date of Proposition 8.  [Citations.]”  (People v. Barbarick (1985) 168 Cal.App.3d 731, 737–738, 214 Cal.Rptr. 322.)   Thus, courts may not exclude evidence for violations of federal or state constitutional provisions, unless federally compelled to do so.  (In re Lance W. (1985) 37 Cal.3d 873, 886–887, 210 Cal.Rptr. 631, 694 P.2d 744;  People v. Swan (1986) 187 Cal.App.3d 1010, 1017, 232 Cal.Rptr. 288;  cf. People v. Neer (1986) 177 Cal.App.3d 991, 999, 223 Cal.Rptr. 555.)   In determining whether to apply the exclusionary rule to a particular set of facts, we are bound by decisions of the United States Supreme Court.  (In re Lance W., supra, 37 Cal.3d at p. 882, 210 Cal.Rptr. 631, 694 P.2d 744.)   And although decisions of lower federal courts are not binding on us, they are persuasive authority.   (People v. Neer, supra, 177 Cal.App.3d at pp. 1000–1001, 223 Cal.Rptr. 555;  9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, §§ 780–781, pp. 751–752.)

Having these principles in mind, we hold that exclusion of evidence is not required here because under the rule of People v. Zepeda, supra, 102 Cal.App.3d 1, 162 Cal.Rptr. 143, there was no violation of the statute, and because even if there were a statutory violation involved, the officers acted reasonably and therefore, under federal law, they did not violate the Fourth Amendment.  (See People v. Swan, supra, 187 Cal.App.3d at p. 1017, 232 Cal.Rptr. 288 [discussing violation of nighttime service requirements of search warrants].)

 Turning to the first ground for our holding, in People v. Zepeda, supra, 102 Cal.App.3d 1, 162 Cal.Rptr. 143, defendant contended that a search warrant was improperly executed after 10 p.m.  (Id., at p. 5, 162 Cal.Rptr. 143.)   The warrant authorized searches of the homes of defendant and his codefendant.   The officers began by searching the codefendant's home at about 8:30 p.m.   They then drove to defendant and codefendant's place of employment, where defendant was put on notice of the warrant, and later to defendant's home where the search commenced, possibly after 10 p.m.  (Id., at p. 4, 162 Cal.Rptr. 143.)   The Court of Appeal held that the warrant was executed in a single continuous transaction that began with the first search.   The statutory purpose of requiring good cause for late night intrusions into defendants' privacy was not violated because defendant was put on notice of the impending search before 10 p.m.  (Id., at pp. 7–8, 162 Cal.Rptr. 143.)

Similarly, in People v. Maita (1984) 157 Cal.App.3d 309, 203 Cal.Rptr. 685, defendant's wife became aware of the officers' presence before 10 p.m., when she saw flashing lights and heard her dogs barking.  (Id., at pp. 321–322, 203 Cal.Rptr. 685.)   Even though officers did not enter the premises before 10 p.m., the Court of Appeal upheld the trial court's denial of a motion to exclude evidence, citing Zepeda.  (Maita, supra, at pp. 321–322, 203 Cal.Rptr. 685.)   The court said, “The privacy interest guarded by [the statute] is to limit ‘ “the peculiar abrasiveness of official intrusions [after 10 p.m.].” ’  [Citation.]  The intrusion into appellant's privacy began well before 10 p.m.   Under these circumstances, [the statute] was not violated.”   (Id., at p. 322, 203 Cal.Rptr. 685.)

In both Zepeda and Maita, a party became aware of the impending search before 10 p.m.;   here, there is nothing in the record to indicate that appellant had a similar awareness.   But we find that the principle underlying those decisions is applicable here.   Detective Norvell saw appellant at 9:45 p.m. and watched him make several trips between a vehicle on the street and a lighted garage.   The die was cast at this point.   An arrest pursuant to the warrant was inevitably to follow, either by service of the warrant in the open garage, or perhaps on the public street when appellant again emerged.   There was no substantial intrusion into his privacy;  this was not his home;  his presence was openly visible to the public.   To the extent there was an intrusion, it began when the officers stationed themselves at 9:45.   Therefore, we agree with the trial court that under the rationale of Zepeda and Maita, no violation of section 840 occurred.

 Adverting to the second basis of our holding, even if we assume that a statutory violation occurred, this would not require suppression of evidence.   Although the purpose of the statutory requirements for service of warrants is the implementation of the Fourth Amendment, the particular procedures the statute mandates are not necessarily part of the Fourth Amendment.  (United States v. Searp (6th Cir.1978) 586 F.2d 1117, 1121.)   The United States Supreme Court has treated the question of nighttime service of search warrants solely as one of statutory interpretation and not as a Fourth Amendment issue.  (Gooding v. United States (1974) 416 U.S. 430, 94 S.Ct. 1780, 40 L.Ed.2d 250.)   That court has also held that the same criteria for the execution of search warrants apply to the execution of arrest warrants.   (Miller v. United States (1958) 357 U.S. 301, 306, 78 S.Ct. 1190, 1194, 2 L.Ed.2d 1332.)   Our appellate courts have held that the California statutory limitation on nighttime arrest under a misdemeanor warrant is not of constitutional origin.  (People v. Whitted (1976) 60 Cal.App.3d 569, 572, 131 Cal.Rptr. 639.)   Thus, it is necessary to differentiate between the right to be free from unreasonable intrusions by the state into citizens' homes in the middle of the night and the procedures which have been established to protect that right.  (United States v. Searp, supra, 586 F.2d at p. 1122.)   If a defendant's constitutional rights have not been affected by the officers' failure to comply fully with statutory requirements, exclusion of evidence is not warranted.  (See People v. Peterson (1973) 9 Cal.3d 717, 723, 108 Cal.Rptr. 835, 511 P.2d 1187 [court found substantial compliance with knock-notice requirements where the officers' actions, although not in strict compliance with the statute, nevertheless served the purposes of the statute].)

The Supreme Court has recognized that a nighttime intrusion into a private home is a severe invasion of privacy.  (Jones v. United States (1958) 357 U.S. 493, 498, 78 S.Ct. 1253, 1256, 2 L.Ed.2d 1514.)  “The basic principle of the limitation upon service of [misdemeanor] arrest warrants is the protection of ‘an individual's right to the security and privacy of his [or her] home, particularly during night hours' and the avoidance of the danger of violent confrontations inherent in unannounced intrusion at night [citations].”  (People v. Whitted, supra, 60 Cal.App.3d at p. 572, 131 Cal.Rptr. 639;  see Paddleford v. Biscay (1971) 22 Cal.App.3d 139, 142, 99 Cal.Rptr. 220.)  “Nevertheless, the particular procedures mandated before a night search may be conducted are not part of the fourth amendment․”  (United States v. Searp, supra, 586 F.2d at p. 1124.)

In the federal jurisdiction the intermediate appellate courts have the power to decide for themselves whether they will apply the exclusionary rule to statutory violations.  (United States v. Searp, supra, 586 F.2d at p. 1123.)   We do not have that prerogative.   As stated above, absent a Fourth Amendment violation, we cannot apply the rule.  (In re Lance W., supra, 37 Cal.3d at pp. 886–887, 210 Cal.Rptr. 631, 694 P.2d 744.)   Since it appears that the statutory provision in question is generally thought not to state a constitutional principle, we could end our inquiry here.   However, it may be that an alleged violation of section 840 constitutes a potential violation of the Fourth Amendment as well.   Therefore, we address the good-faith issue.

In Leon, the government conceded that the defendant's Fourth Amendment rights had been violated but argued that the Supreme Court should recognize a good-faith exception to the exclusionary rule.  (United States v. Leon, supra, 468 U.S. at p. 905, 104 S.Ct. at p. 3411.)   The Supreme Court concluded that the exclusionary rule “should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.”  (Id., at p. 900, 104 S.Ct. at p. 3409.)   Weighing the costs and benefits of preventing the use in the prosecution's case-in-chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective, the court stated that “when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system.  [Citation.]”  (Id., at pp. 907, 908, 104 S.Ct. at p. 3412.)

Detective Norvell's testimony at the preliminary hearing showed that when he checked the computer he found that there was a $5,000 warrant for a violation of section 496, which did not denote whether it was a felony or misdemeanor.   He made an assumption that it was a felony based on the charge and amount.   The trial court found that “basically on the warrant it seems to me that likewise the good faith of the officers involved has to be given some credence․  This bail is higher than the felony bail schedule for [section] 496 so I think that you have to assume that the officer certainly had some cause to believe a [$]5,000 bail on a [section] 496 is above and beyond the call of what you have on misdemeanors.”   Thus, the court made a finding that the officers acted reasonably and in good faith in executing the arrest warrant.

Substantial evidence supports the trial court's finding.   The officers' belief that the valid arrest warrant which they were executing was for a felony was reasonable, given the charge and amount of bail.   They spotted appellant before 10 p.m. and could have arrested him at once, but were justifiedly concerned about their safety.   They reasonably believed that if they attempted to arrest him then, there would have been a greater chance of a violent confrontation, because they were in plainclothes and had no backup.   There is no evidence of intentional or deliberate disregard for the prohibition against nighttime service of a misdemeanor arrest warrant because the police reasonably believed that they were executing a felony warrant.

In Maryland v. Garrison (1987) 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72, the Supreme Court held that police officers acted reasonably in executing a search warrant which turned out to be ambiguous in scope, and that therefore the defendant's rights under the Fourth Amendment had not been violated.   In that case, Baltimore police officers obtained and executed a warrant to search the person of one Lawrence McWebb and “ ‘the premises known as 2036 Park Avenue third floor apartment.’ ”  (Id., at p. ––––, 107 S.Ct. at p. 1015, fn. omitted.)   When the police applied for the warrant and conducted the search pursuant thereto, they reasonably believed that there was only one apartment on the third floor, because they had obtained the information from a reliable informant, had examined the exterior of the building, and had made inquiries of the utility company. (Ibid.)  When the police executed the warrant, they found McWebb in front of the building and used his key to gain entry thereto.   When the police reached the third floor, they encountered the defendant, who was in the hallway.  (Ibid.)  The doors to both McWebb's and the defendant's apartments were open.   Only after the officers entered the defendant's apartment and found heroin and other contraband did they realize that the third floor contained two apartments.  (Ibid.)  The search of the defendant's apartment was then discontinued.  (Ibid.)

Having first determined that the search warrant was valid when it issued (Maryland v. Garrison, supra, 480 U.S. at p. ––––, 107 S.Ct. at p. 1018] ), the court held that execution of the warrant did not violate the defendant's constitutional right to be secure in his home (id., at pp. –––– – ––––, 107 S.Ct. at pp. 1018–1020).   The court reasoned, “We have no difficulty concluding that the officers' entry into the third-floor common area was legal;  they carried a warrant for those premises, and they were accompanied by McWebb, who provided the key that they used to open the door giving access to the third-floor common area.   If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to McWebb's apartment.   Moreover, as the officers recognized, they were required to discontinue the search of respondent's apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant.   The officers' conduct and the limits of the search were based on the information available as the search proceeded.   While the purposes justifying a police search strictly limit the permissible extent of the search, the Court has also recognized the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants.”  (Id., at p. ––––, 107 S.Ct. at p. 1018, fn. omitted.)

Basing its decision on Hill v. California (1971) 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484, in which the court upheld the arrest of a man named Miller based on the mistaken but good-faith belief that he was Hill, the Garrison court concluded that the validity of the search of the defendant's apartment depended upon whether the officers' failure to realize the overbreadth of the warrant was objectively understandable and reasonable.   (Maryland v. Garrison, supra, 480 U.S. at pp. –––– – ––––, 107 S.Ct. at pp. 1018–1019.)   The court held that it was.  (Id., at p. ––––, 107 S.Ct. at p. 1019.)

Garrison is applicable to the instant case.   Detective Norvell testified that he had run a warrant check on appellant a week prior to spotting him and that he had made an assumption that it was a felony warrant based on the charge and amount of bail.   Officer Woehrman testified that he did not have a copy of the warrant and was unable to operate his computer to check its status.   He had been informed of the warrant and assumed it was a felony warrant.   Considering all the circumstances, we conclude that the officers' failure to realize that the valid warrant was a misdemeanor warrant was objectively understandable and reasonable.

This is a case in which it “would constitute an outrageous sacrifice of substance to technical form” to hold that the procedure followed by the officers was illegal merely because they acted without knowledge that the warrant was a misdemeanor warrant;  such a holding would violate the dictates of common sense.  (People v. Honore (1969) 2 Cal.App.3d 295, 300, 82 Cal.Rptr. 639.)   In Honore, Sergeant McKnight of the Los Angeles Police Department received information that the defendant was dealing marijuana from his residence.  (Id., at p. 298, 82 Cal.Rptr. 639.)   The officer ascertained that there was an outstanding felony warrant for the defendant's arrest.  (Ibid.)  The officer was told by a clerk in the Records and Identification Division that there was also an outstanding warrant for the defendant's arrest on a traffic violation. (Ibid.)  The defendant was arrested at his home.  (Ibid.)  Sergeant McKnight told him that he was being arrested on the felony warrant, that there was also an outstanding traffic warrant for his arrest, but that he was not arresting him on the traffic warrant. (Ibid.)  A subsequent search uncovered marijuana.  (Id., at p. 299, 82 Cal.Rptr. 639.)

Unbeknownst to Sergeant McKnight, the felony warrant had been withdrawn, and a new misdemeanor warrant had been issued for the defendant's arrest.  (Id., at p. 300, 82 Cal.Rptr. 639.)   The police Records and Identification Division had not been informed of the change at the time the officer obtained the information upon which he acted.  (Ibid.)  The appellate court concluded that the officer had acted reasonably and properly upon the official information which he had received when he arrested the defendant.  (Ibid.)

Here, too, the officers acted reasonably and in good faith upon the official information they received.   The law does not require suppression of the evidence.⁴

Conclusion

The judgment is affirmed.

I concur in the judgment because the violation of Penal Code section 840 does not present a question which is of constitutional magnitude under the United States Constitution, and therefore under Proposition 8 the evidence was admissible.   Any other statements or reasons for the admission of the evidence obtained from appellant pursuant to his arrest are pure dicta and infirm dicta at that.   I will first discuss why there was no violation of a statute which is mandated by the United States Constitution.

Proposition 8 on the June 1982 California primary election ballot added section 28, subdivision (d), to article I of the California Constitution.   That section provides in part:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, ․”  “[W]hether evidence is subject to exclusion because of an illegal search and seizure must be determined pursuant to the Fourth Amendment of the federal Constitution;  the state Constitution no longer affords independent grounds for suppression of evidence for crimes occurring after June 6, 1982, the effective date of Proposition 8.  [Citations.]”  (People v. Barbarick (1985) 168 Cal.App.3d 731, 737–738, 214 Cal.Rptr. 322.)   Thus, in California since the effective date of Proposition 8, evidence may only be excluded if the evidence was obtained in violation of the Constitution of the United States.  “[S]ection 28(d) is now part of the Constitution of the State of California, and cannot be ignored.   Moreover, not only the language of that section but also accepted canons of statutory construction and available ‘legislative’ history confirm our conclusion that the electorate intended to mandate admission of relevant evidence, even if unlawfully seized, to the extent admission of the evidence is permitted by the United States Constitution.”  (In re Lance W. (1985) 37 Cal.3d 873, 887–888, 210 Cal.Rptr. 631, 694 P.2d 744.)

In determining whether to apply the exclusionary rule to a particular set of facts, the California courts are bound by the decisions of the United States Supreme Court.  (Id., at p. 882, 210 Cal.Rptr. 631, 694 P.2d 744.)   “However, those California cases which identify a Fourth Amendment violation and conclude the exclusion of evidence is required under the Fourth Amendment, are still sound law in the absence of a contrary United States Supreme Court opinion.”  (People v. Neer (1986) 177 Cal.App.3d 991, 999, 223 Cal.Rptr. 555;  see also People v. Franco (1986) 183 Cal.App.3d 1089, 1095, 228 Cal.Rptr. 527.)   For example, the California Supreme Court has held that the knock and notice requirements of sections 1531 and 844 render any subsequent search and seizure unreasonable within the meaning of the Fourth Amendment of the Constitution of the United States and thus requires the exclusion of evidence obtained under Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.  (Duke v. Superior Court (1969) 1 Cal.3d 314, 325, 82 Cal.Rptr. 348, 461 P.2d 628;  Jeter v. Superior Court (1983) 138 Cal.App.3d 934, 938, 188 Cal.Rptr. 351.  “Thus, neither Proposition 8 nor the California Supreme Court's holding in Lance W. has nullified California cases requiring the exclusion of evidence based on a Fourth Amendment violation such as the knock-notice rule.”  (People v. Franco, supra, 183 Cal.App.3d at p. 1095, 228 Cal.Rptr. 527.)

Although the purpose of the statutory requirements for service of warrants is the implementation of the Fourth Amendment, the particular procedures a statute mandates are not necessarily required by the Fourth Amendment.  (United States v. Searp (6th Cir.1978) 586 F.2d 1117, 1121.)   The United States Supreme Court has treated the question of nighttime service of search warrants solely as one of statutory interpretation and not as a Fourth Amendment issue.  (Gooding v. United States (1974) 416 U.S. 430, 94 S.Ct. 1780, 40 L.Ed.2d 250.)   That court has also held that the same criteria for the execution of search warrants apply to the execution of arrest warrants.   (Miller v. United States (1958) 357 U.S. 301, 306, 78 S.Ct. 1190, 1194, 2 L.Ed.2d 1332.)   Our appellate courts have held that the California statutory limitation on nighttime arrest under a misdemeanor warrant is not of constitutional origin.  (People v. Whitted (1976) 60 Cal.App.3d 569, 572, 131 Cal.Rptr. 639;  see also People v. Cressey (1970) 2 Cal.3d 836, 846–847, 87 Cal.Rptr. 699, 471 P.2d 19;  People v. Swan (1986) 187 Cal.App.3d 1010, 1017, 232 Cal.Rptr. 288.)   The federal appellate courts are also of the same view.  “Nevertheless, the particular procedures mandated before a night search may be conducted are not part of the fourth amendment, ․”  (United States v. Searp, supra, 586 F.2d at p. 1124.)   Thus, it is necessary to differentiate between the right to be free from unreasonable intrusions by the state into citizens' homes in the middle of the night and the procedures which have been established to protect that right.  (United States v. Searp, supra, 586 F.2d at p. 1122.)   If a defendant's constitutional rights have not been affected by the officers' failure to comply fully with statutory requirements, exclusion of evidence is not a remedy in California since the effective date of Proposition 8.¹

Proposition 8 is now part of the California Constitution and must be applied as interpreted by the California Supreme Court in Lance W. and other pertinent decisions above mentioned.   In conclusion, the California statutory limitation on nighttime arrest under a misdemeanor warrant is not of constitutional origin.   The exclusionary rule is no longer a remedy in California for a violation of a statutory rule that is not mandated by the United States Constitution.²  Although the evidence in question was seized unlawfully under such statutory limitation, the evidence is admissible since such evidence was not seized in violation of the United States Constitution.

The majority's discussion of good-faith belief by the officers who arrested appellant that they were arresting him for a felony is pure dictum.   I do not want my concurrence in the judgment to suggest in any way that I agree with the majority's discussion of good-faith belief on the part of the officers.   As noted by the majority, in order to fall within the good-faith rule the officers must have acted in a manner that is “objectively understandable and reasonable.”   The majority appears to rely on the fact that the amount of the warrant was $5,000 for a violation of Penal Code section 496 and that the warrant would not be for such amount if the warrant was merely for a misdemeanor violation of section 496.   Detective Norvell had run a computer check a week before the arrest at which time he ascertained that there was a $5,000 warrant for appellant's arrest.   The majority states “Detective Norvell was aware of the bail schedule amounts for various offenses and assumed that the warrant was a felony warrant based upon the charge and amount.   He never saw a copy of the actual warrant.”   Since the detective never checked the actual warrant but was operating merely on his assumption that the warrant was a felony warrant, I find it difficult to say that the officer acted in a manner that is objectively understandable and reasonable.

At the time the officers first saw appellant he was on a public street by himself.   It is not a violation of Penal Code section 840 to arrest a person for a misdemeanor violation in a public place.   Furthermore, the officers first saw appellant at 9:45 p.m. and therefore no violation of Penal Code section 840 would have occurred if they had arrested appellant at this time.   I find it hard to believe that the two detectives (although dressed in plain clothes) could not safely arrest appellant on the street when they first saw appellant.   Instead, the officers called for back up and arrested appellant while he was in a garage with two other persons.   It would appear to me that an arrest at this time would place the officers in more jeopardy than if they had arrested appellant when they first saw him.   Instead, they went into the garage of a third person to arrest appellant after 10 p.m.   When the person to be arrested is in the home of a third person, the police need a search warrant for the third person's home (so as not to violate the rights of the third person) in addition to an arrest warrant for the person to be arrested.  (Steagald v. United States (1981) 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38.)   In short, the officers had an opportunity to arrest appellant in a manner that would not violate any of his rights, but instead the officers called for assistance and effectuated the arrest in a manner that not only violated Penal Code section 840 but violated the constitutional rights of a third person.   Since there is no conflict with regard to the evidence, the question of whether the officers acted reasonably is a question of law.   I do not understand how the majority can state that the officers acted in a manner that is objectively understandable and reasonable.

The majority's statement that the arrest was valid based upon the “continuous transaction” recognized in People v. Zepeda (1980) 102 Cal.App.3d 1, 162 Cal.Rptr. 143, is also dictum.   I do not want my concurrence in the judgment to suggest in any way that I agree with the majority's discussion of the “continuous transaction” exception.   In Zepeda, the defendant was on notice of the impending search before 10 p.m.  (Id., at p. 7–8, 162 Cal.Rptr. 143.)  People v. Maita (1984) 157 Cal.App.3d 309, 203 Cal.Rptr. 685, relied upon by the majority, also does not support the theory that the continuous transaction exception is applicable to the instant case.   In Maita, appellant's wife was aware of the presence of the police before the hour of 10 p.m.   Therefore, the court in Maita said:  “The intrusion into appellant's privacy began well before 10 p.m.”  (Id., at p. 322, 203 Cal.Rptr. 685.)

There is nothing in the instant record that demonstrates that appellant was aware of the presence of the officers before 10 p.m.   From these two cases the only conclusion that can be drawn is that when an intrusion into the privacy of the individual occurs prior to 10 p.m., law enforcement officers need not discontinue the intrusion after 10 p.m.   In the instant case there was no intrusion into the privacy of appellant before 10 p.m.   When he was first observed, he was walking on a public street and thereafter he was observed in a open garage.   As stated by the majority “[t]here was no substantial intrusion into his privacy;  this was not his home;  his presence was openly visible to the public.” My only disagreement with this statement is the use of the word substantial because I am of the opinion there was no intrusion at all into any privacy interest that appellant had before 10 p.m.   The majority's statement “[t]o the extent there was an intrusion, it began when the officers stationed themselves at 9:45” simply is a misstatement of the law and neglects to state what privacy rights of appellant were violated before 10 p.m.

I can only speculate on the reasons why the majority felt the need to include the continuous transaction exception and the good-faith belief theory in its opinion. Whatever the reasons, the discussions on these two issues are dicta and hopefully will be viewed as such since the majority erroneously applies these theories to the instant case.

I concur in the judgment on the sole ground that Penal Code section 840 is not a statute that is mandated by the United States Constitution and therefore under Proposition 8 the evidence seized in violation of this statute is admissible.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

2.   Section 840 provides:  “An arrest for the commission of a felony may be made on any day and at any time of the day or night.   An arrest for the commission of a misdemeanor or an infraction cannot be made between the hours of 10 o'clock p.m. of any day and 6 o'clock a.m. of the succeeding day, unless:  [¶] (1) The arrest is made without a warrant pursuant to Section 836 [arrests by peace officers] or 837 [citizens' arrests].  [¶] (2) The arrest is made in a public place.  [¶] (3) The arrest is made when the person is in custody pursuant to another lawful arrest.  [¶] (4) The arrest is made pursuant to a warrant which, for good cause shown, directs that it may be served at any time of the day or night.”   Section 978.5, subdivision (b), provides that a bench warrant may be served in the same manner as a warrant of arrest.

3.   The warrant was introduced in evidence at the suppression hearing.   The face of the warrant showed that on June 25, 1984, appellant had been charged with the crimes of violation of sections 484f, subdivision (2), 484g, 496, and Health and Safety Code section 11590 [requiring a person convicted of certain felony drug offenses to register with the local law enforcement officers], and that appellant had failed to appear in the Walnut Creek-Danville Municipal Court at a regularly scheduled hearing.

4.   Because we resolve this appeal on the bases of a single continuous transaction and the officers' good-faith belief that they were executing a felony arrest warrant, we do not address the other ground on which the arrest and search were upheld by the trial court.

1.   It should be noted that although in California the courts may not exclude evidence when statutory requirements, which are not mandated by the United States Constitution, are violated, federal courts do have the power to use the exclusionary rule and to set standards for when the exclusionary rule will be applied to remedy statutory violations.   (United States v. Searp, supra, at p. 1123.)

2.   Since California courts may no longer use the exclusionary rule to remedy statutory violations by law enforcement officers, it is up to Legislature to fashion a remedy to ensure that law enforcement officers do not violate statutory provisions.

BARRY–DEAL, Associate Justice.

MERRILL, J., concurs.