Badillo v. Superior Court In and For City and County ofSan Francisco

Decision Date24 February 1956
Citation46 Cal.2d 269,294 P.2d 23
CourtCalifornia Supreme Court
PartiesVictor BADILLO, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent. S. F. 19346.

MacInnis, Alaga & Glassman and Harry P. Glassman, San Francisco, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., and Arlo E. Smith, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

By information petitioner was charged with possessing heroin in violation of Health and Safety Code section 11500. His motion to set aside the information on the ground that the evidence against him was obtained by an illegal search and seizure was denied, and he now seeks a writ of prohibition to prevent his trial.

Evidence was presented at the preliminary hearing of the following facts: At approximately 6 p. m. on January 6, 1955, federal narcotics Agents Hipkins and Casey and Officers Getchell and McKinley of the San Francisco Police Department went to a house on Sycamore Street in San Francisco. Agent Hipkins remained in front of the house, and the three other officers went to the rear. Officer Getchell knocked at the back door, which was locked, and received no response. He then forced the door open and entered the house followed by Agent Casey. Shortly thereafter, petitioner, followed closely by Officer Getchell, ran out the front door and threw a package of heroin toward Agent Hipkins, who recovered it. None of the officers had a search warrant.

In Rogers v. Superior Court, 46 Cal.2d 3, 291 P.2d 929, 931, we held that a 'defendant has been held to answer without reasonable or probable cause if his commitment is based entirely on incompetent evidence', and accordingly, in such a case the trial court should grant a motion to set aside the information, Penal Code § 995, and if it does not do so, a peremptory writ of prohibition will issue to prohibit further proceedings. Penal Code § 999a. No problem is presented in applying this rule in cases involving searches and seizures in which the facts bearing on the legality of the search or seizure are undisputed and establish as a matter of law that the evidence is or is not admissible. In many cases, however, the evidence before the magistrate bearing on this issue may be in conflict or susceptible of conflicting inferences or consist only of the testimony of prosecution witnesses, and under these circumstances the court in ruling on a motion to set aside the information will frequently not be in a position to make a final determination as to the admissibility of the evidence. Accordingly, the information should not be set aside on the ground that essential evidence was illegally obtained if there is any substantial evidence or applicable presumption to support a contrary conclusion, see, People v. Michael, 45 Cal.2d 751, 290 P.2d 852; People v. Martin, 45 Cal.2d 755, 290 P.2d 855, and in such cases the ultimate decision on admissibility can be made at the trial on the basis of all of the evidence bearing on the issue. See, People v. Gorg, 45 Cal.2d 776, 291 P.2d 469; People v. Berger, 44 Cal.2d 459, 464, 282 P.2d 509. In the absence of evidence to the contrary, it is presumed that the officers acted legally, see, People v. Farrara, Cal.Sup., 294 P.2d 21, and if the issue is raised for the first time on a motion to set aside the information, the motion should be denied unless the evidence before the committing magistrate establishes that essential evidence was illegally obtained. When, however, the question of the legality of an arrest or of a search and seizure is raised either at the preliminary hearing or at the trial, the defendant makes a prima facie case when he establishes that an arrest was made without a warrant or that private premises were entered or a search made without a search warant, and the burden then rests on the prosecution to show proper justification. Dragna v. White, 45 Cal.2d 469, 289 P.2d 428; Coverstone v. Davies, 38 Cal.2d 315, 319, 239 P.2d 876; Hughes v. Oreb, 36 Cal.2d 854, 858, 228 P.2d 550; People v. Boyles, 45 Cal.2d 652, 290 P.2d 535; People v. Gorg, supra, 45 Cal.2d 776, 291 P.2d 469.

In the present case defendant made a prima facie showing of illegal entry by establishing that the officers broke into the house without a search warrant, and the burden then rested on the prosecution to introduce evidence that the officers had reasonable cause to break and enter to make an arrest. See Penal Code § 844. Since no such evidence was presented, it must be taken as established for the purposes of this proceeding that the entry into the house was unlawful, 1 and it is immaterial whether or not it was defendant's house. People v. Martin, supra, 45 Cal.2d 755, 290 P.2d 855.

The Attorney General contends that defendant abandoned the evidence when he threw it toward Agent Hipkins and that therefore he may not object to its use against him. It clearly appears, however, that defendant's flight out the front door and attempted disposal of the evidence was the direct result of Officer Getchell's illegal entry, and accordingly, the evidence was obtained in violation of constitutional guarantees. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319; People v. Berger, 44 Cal.2d 459, 462, 282 P.2d 509; People v. Stewart, 232 Mich. 670, 206 N.W. 337, 338.

Let the peremptory writ of prohibition issue as prayed.

GIBSON, C. J., and SCHAUER and McCOMB, JJ., concur.

CARTER, Justice.

I concur in the judgment and generally in the reasoning in the majority opinion but I wish to point out that under a recent decision of the Supreme Court of the United States, Rea v. United States, 76 S.Ct. 292, it would seem that evidence illegally obtained by federal agents would not be admissible in a state court notwithstanding the rule announced by this court in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905.

SPENCE, Justice.

I dissent.

Petitioner was charged with the possession of heroin in violation of section 11500 of the Health and Safety Code. Possession of narcotics is in the nature of a continuing offense, and the evidence shows that petitioner had committed and was committing the offense at the time of the arrest and search. I am therefore of the opinion that this case presents two material questions: (1) whether the arrest without a warrant was a lawful arrest; and (2) if so, whether the search was reasonable as an incident to such lawful arrest.

Heretofore this court has deemed it unnecessary to determine whether an arrest without a warrant under the circumstances presented here is a lawful arrest under subdivision 2 of section 836 of the Penal Code. It was so declared in People v. Brown, 45 Cal.2d 640, at page 643, 290 P.2d 528, at page 530, where it was held that 'the legality of an arrest is not necessarily determinative of the lawfulness of a search incident thereto.' This court further said: 'Moreover, whether or not the arrest of a guilty defendant is lawful, it is clearly unreasonable if the officer has no 'reasonable cause' to believe the defendant guilty, and a search incident thereto can be no more reasonable than the arrest itself.' 45 Cal.2d at page 644, 290 P.2d at page 530. Thus it appears that this court has made a distinction between a lawful arrest and a reasonable arrest. I had doubt concerning the validity of any such distinction, and it was for this reason that I voted for a rehearing in People v. Brown, supra, 45 Cal.2d 640, 290 P.2d 528, and People v. Simon, 45 Cal.2d 645, 290 P.2d 531. I have concluded that the question of the lawfulness of the arrest is a material one in the determination of the present case and of other pending cases, and that it should be decided here.

Section 836 of the Penal Code provides: 'A peace officer may * * * without a warrant, arrest a person:

'1. For a public offense committed or attempted in his presence.

'2. When a person arrested has committed a felony, although not in his presence.

'3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.

'4. On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested.

'5. At night, when there is reasonable cause to believe that he has committed a felony.'

In my opinion, the arrest without a warant in the present case was lawful under the above-quoted subdivision 2. An analysis of section 836 shows that there is a marked difference between the provisions of subdivision 2 and those of subdivisions 3, 4, and 5. The three last-mentioned subdvisions specify the circumstances under which 'reasonable cause' is required in order to make lawful an arrest without a warrant, but subdivision 2 makes no mention of 'reasonable cause' and makes lawful an arrest without a warrant 'when a person arrested has committed a felony.'

In determining the lawfulness of an arrest, all subdivisions of section 836 must be considered together, and subdivision 2 must be given its obvious meaning. If we depart from the clear language of that subdivision by engrafting thereon an additional requirement of 'reasonable cause,' we do violence to the terms of the subdivision and also render it meaningless and purposeless. The remaining subdivisions cover those lawful arrests which require 'reasonable cause' and cover every arrest which might be made under subdivision 2 if an arrest under subdivision 2 is held to be conditioned upon an unexpressed requirement of 'reasonable cause.' We cannot assume that the Legislature intended to enact a purposeless provision when it included subdivision 2 in that section, but that conclusion is inevitable if we fail to give effect to its plain and unambiguous terms. I therefore conclude that an arrest without a warrant is a lawful arrest if the person arrested has committed a felony, regardless of whether the...

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