PEOPLE v. HANSEL (1991)

OPINION

A narcotics prosecution against three defendants, Vienna Rae Hansel, Kevin Jules Berlin, and Loreen Louise Goetz, was derailed when the superior court suppressed the evidence.   The district attorney challenges the court's finding that the entry into the residence where the contraband was found violated the knock-notice provisions of Penal Code section 1531 and argues he was erroneously denied the statutory right under recent amendments to Penal Code section 1538.5 to oppose the defense motion with additional testimony from an officer who previously testified at the preliminary hearing.   We affirm.

I

Defendants moved to suppress narcotics found at a home pursuant to a search warrant.   The sole issue litigated at the preliminary examination was the officers' alleged failure to comply with the knock-notice provisions of Penal Code section 1531.   The defense stipulated that the only witness, sheriff's investigator Christopher Elliott, was an expert “in all fields of narcotics.”   Elliott proved to be far more resourceful in the field than the prosecutor was in marshalling the evidence in court.

On December 23, 1988, Elliott led a raid on a residence in the City of Orange.   He testified a confidential informant (no one asked whether the individual was claimed to be reliable) told him “there was a security camera that was posted at the front door of this house allowing the occupants to see whoever would be driving up the driveway to the front door, so earlier during that day I had a female investigator call the residence ․ [and announce] that there was [sic ] some flowers that were to be delivered [that afternoon].”   A female named Vienna fielded the call.

Elliott then appeared at the appropriate time in mufti carrying a clipboard and a bouquet of flowers.¹  The officer knocked, and defendant Vienna Hansel answered the door.   He asked if she was Vienna, and she said she was.

The officer told Hansel she had to sign for the delivery.   Apparently before she could react, he set down the flowers and clipboard and “yelled at her that I was with the Sheriff's Department and that I had a search warrant and demanded entry.”   He added, “At approximately right at the same time I grabbed her by the arm as she was standing in the doorway and started to pull her out so she would be out of the way for the entry team.”

The entry team consisted of officers in raid jackets who rushed from a van parked in a driveway some 50 feet away.   While this was occurring, Elliott again yelled that he was a deputy sheriff.   The record does not reveal whether the officer produced any identification:  No one asked, and he did not volunteer the information at the preliminary hearing.

Some 15 seconds later, the other officers burst past Elliott and Hansel.   Investigator Changalla yelled, “Sheriff's Department, we have a search warrant!” as he crossed the threshold.   Defendants Goetz and Berlin were in the living room.   We do not know when any of the officers first saw them, however;  again, no one asked.   Nor did anyone inquire as to whether there were additional reasons for the unusual method selected to serve this search warrant.   Neither the warrant nor the affidavit was offered in evidence, and no one inquired as to whether the officers entertained any fear of armed resistance or the destruction of evidence.   The surveillance camera would fit part of that equation, but the prosecution failed to follow up in that area by establishing the reliability of the informant or any reports of the presence of a weapon on the premises.

After examining defense counsel's argument at the preliminary examination, we suspect it would have been quite simple to justify the police conduct:  “Interestingly enough, in the officer's affidavit in support of this warrant he mentions the Uzzi [that was found in the search], but again there is no suggestion that the householder will attempt to use it or has been known to be personally armed at the time of the arrest.”   This comment was not evidence, however, and even taken as a concession by the defense, is useless.   Just as defense counsel noted, there was no claim by Elliott that the officers reasonably feared for their safety.   No one asked.

On this wholly inadequate record, the district attorney asks us to validate the entry.   As explained in the following section, that is not possible.   Either the officers did have an exceptional concern for their safety or that evidence would be destroyed, or they have been watching too much television.   We have no way of knowing which.

II

 There is no claim the officers actually complied with Penal Code section 1531 or that their actions were excused by exigent circumstances.²  First we are told the officers substantially complied with Penal Code section 1531 because it would have been a “useless gesture” for them to wait for a refusal from the occupants of the home to deny them entry.   (People v. Uhler (1989) 208 Cal.App.3d 766, 256 Cal.Rptr. 336.)   While we agree the concepts of substantial compliance and the failure to comply because of the futility of the effort are largely interchangeable, neither applies here.

In Uhler “officers went to [a] residence to execute a search warrant.  [One officer], dressed in a marked police raid jacket, approached the front entry and displayed his badge through a closed screen door.   Three people were seated on a couch inside, and [the officer] believed at least two made eye contact with him as he announced his identity and possession of the warrant.   He demanded entry;  but without waiting for a response, the officer opened the screen door, entered, and ordered everyone to remain seated.”  (Id. at p. 768, 256 Cal.Rptr. 336.)   On these facts, we agreed with the trial court's conclusion that it would have been a useless gesture for the officer to await a refusal to allow an entry the occupants had no legal right to resist.

Uhler could be our case, but not on the record developed at this preliminary examination.   We do not know whether Elliott saw, much less made eye contact with, the two defendants in the living room.   Moreover, we do not know whether he displayed a badge.   He was not in uniform and had masqueraded as a florist's deliveryman—uncommon police activity in our experience.   Rather than wait for a response from Hansel, he assaulted her.   Occupants viewing this scenario from within could have been skeptical of his claim to be a police officer and drawn another plausible impression, that a robbery was in progress.   In Uhler we said, “[T]here was virtually no chance of mistaking [the officer] in his police raid jacket for an unofficial intruder.”   (People v. Uhler, supra, 208 Cal.App.3d at p. 770, 256 Cal.Rptr. 336.)   That danger was very real here.

Although the entry team was attired in raid gear, there could have been little or no opportunity for the occupants to appreciate that because the officers burst into the home without a request to enter.   We cannot find that compliance with Penal Code section 1531 would have been a useless gesture under these circumstances or that there was substantial compliance.³

III

The district attorney sought to recall Deputy Elliott to clear up an undisclosed ambiguity he perceived in the transcript when the defense renewed the motion to suppress in the superior court per Penal Code section 1538.5, subdivision (i).   That subdivision provides in part, “[I]f the offense was initiated by complaint ⁴ and no motion [to suppress]was made at the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing.   If the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence which could not reasonably have been presented at the preliminary hearing, except that the [P]eople may recall witnesses who testified at the preliminary hearing.”  (Italics added.)

The defense objected, positing an argument based on statutory interpretation and another on constitutional grounds.   The judge adopted a view expressed by the Second District:  “Respondent ․ argues the amendment is unfair because it allows the prosecution to ‘recall witnesses who testified at the preliminary hearing.’   We view this provision as merely allowing the prosecution to recall witnesses who testified at the preliminary hearing in opposition to evidence which a defendant presents in the superior court.   We see nothing improper in this.”  (People v. Anderson (1989) 210 Cal.App.3d 24, 28, 258 Cal.Rptr. 125.)

 Nor do we.  Anderson appears to be soundly based on the Legislature's intent.  Penal Code section 1538.5, subdivision (i) was amended via Assembly Bill 2328.   The language in question relating to the prosecution's right to recall witnesses was added in amendments to the bill on January 17, 1986.   It was explained in an Assembly Committee on Public Safety memorandum of the same date as follows:  “This bill would allow the prosecution to recall witnesses it presented at the preliminary hearing.   The purpose would be to allow the prosecution to rebut new evidence presented by the defense.”  (See Legis. Intent Service, Pen.Code, § 1538.5, subd. (i), Assem. Com. on Public Safety, hg. Jan. 27, 1986;  italics added.)

The defense did not present any new evidence in the superior court in support of the suppression motion.   Accordingly, there was no basis to permit the prosecution to recall the officer.   For the same reason, it is not necessary to reach the defense constitutional challenge to subdivision (i) of Penal Code section 1538.5.   Interpreted narrowly, the statute has the potential for mischief only where a defendant presents new evidence to bolster a suppression motion and the prosecution is allowed to recall a witness who testified at the preliminary hearing in rebuttal and defendant seeks, but is not allowed, to recall another previous witness to counter the district attorney's witness.   That, of course, is not this case;  and we are confident the superior court will reach a fitting resolution when that one arises.

Judgment affirmed.

FOOTNOTES

1.    “The flowers that bloom in the spring,Tra la,Have nothing to do with the case․”The Mikado, Act II.   Sir William S. Gilbert.  (See In re Moss (1985) 175 Cal.App.3d 913, 920, fn. 2, 221 Cal.Rptr. 645.)

2.   That section 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.”

3.   The dismissal came before trial when the deputy district attorney announced he could not proceed in the wake of the court's ruling on the suppression motion.   We were somewhat surprised the prosecution did not simply refile the case and develop a more thorough record at the new preliminary hearing.   We were further surprised when the deputy district attorney explained at oral argument that he rejected that course because the narcotics, having been suppressed in the superior court, were suppressed for all time, rendering futile any attempt to revive the charges.Nothing in Penal Code section 1387 or 1538.5 supports that notion.   (People v. Methey (1991) 227 Cal.App.3d 349, 277 Cal.Rptr. 777.)   The prosecution of this ill-advised appeal is, however, fatal to initiating new charges.  (Pen.Code, § 1238.)

4.   We thought “offenses were initiated” by criminals and the district attorney initiated prosecutions.   Part of our task in this opinion involves the interpretation of this particular subdivision, a daunting assignment given the obvious lack of care devoted to its drafting.

CROSBY, Acting Presiding Justice.

WALLIN and MOORE, JJ., concur.