Bowyer v. Superior Court

• Decision Date: 09 January 1974
• Citation: 37 Cal.App.3d 151,111 Cal.Rptr. 628
• Court: California Court of Appeals Court of Appeals
• Parties: Mary Christine BOWYER et al., Petitioners, v. SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 33498.

Page 628

111 Cal.Rptr. 628

37 Cal.App.3d 151

Mary Christine BOWYER et al., Petitioners, v. SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 33498.

Court of Appeal, First District, Division 4, California.

Jan. 9, 1974.

Rehearing Denied Feb. 8, 1974.

See 112 Cal.Rptr. 266.

Hearing Denied March 8, 1974.

Robert C. Selvidge, Russell E. Parsons, Sidney P. Lester, Santa Ana, for petitioners.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., Doris H. Maier, Asst. Atty. Gen., Writs Section, W. Eric Collins, Linda Ludlow, Deputy Attys. Gen., San Francisco, for real party in interest.

RATTIGAN, Associate Justice.

We hold in this proceeding that certain evidence must be suppressed because a so-called 'telephonic search warrant,' pursuant to which the evidence was seized, was wholly invalid in the absence of a writing as prescribed by statute.

A three-count information filed in respondent court jointly charged petitioners Chester and Mary Bowyer, Keith Robinson, and James Thomason with possession of two contraband substances (LSD and a methylenedioxy amphetamine) in violation of Health and Safety Code section 11350, and with possession of marijuana in violation of section 11357. The information alleges that all the offenses charged occurred on April 22, 1973, ¹ when the contraband was seized in the search of residential premises as hereinafter described.

Petitioners moved respondent court for an order suppressing the evidence pursuant to Penal Code section 1538.5, subdivision (a). ² The motion having been denied after an evidentiary hearing, they seek a 'writ of prohibition and/or mandate' as permitted by subdivision (i) of section 1538.5. We issued an appropriate alternative writ.

The record made at the hearing on petitioners' motion supports the following recital of facts: At pertinent times, Michael Barnes, a special agent of the United States Department of Justice, was working on assignment with the State Bureau of Narcotic Enforcement. In mid-April, he learned from the Federal Bureau of Investigation that petitioners Chester and Mary Bowyer were fugitives by reason of federal warrants for their arrest. ³ An informant told Barnes that Chester Bowyer was living on a ranch in Santa Cruz County and that petitioner Robinson, another 'fugitive,' might also be living there. An investigation indicated that the telephone at the ranch was listed in the name of a person who was suspected of harboring still other 'fugitives' thought to be with Robinson. Robinson.

Barnes visited the ranch twice for surveillance purposes, once by himself and once with three other law enforcement officers. On the second occasion, on April 21, the officers saw Chester and Mary Bowyer moving about the place and walking in and out of two dwellings located there. Two parked automobiles were also observed on the premises. Because of the prospect that several fugitives were living there, and because the rural terrain could permit the escape of some of them unless the ranch were surrounded by a sufficient number of officers, Barnes decided to execute the Bowyer warrants in a large-scale raid which he scheduled for an early morning hour on April 22, a Sunday.

At a briefing session conducted prior to the raid, Barnes asked Christopher C. Cottle, assistant district attorney for Santa Cruz County, what he (Barnes) should do if the raiding officers found contraband on the ranch while arresting the Bowyers. Cottle told him that a 'telephonic search warrant would be in order' in that event, and that Sergeant Asbury (a deputy sheriff and a member of the raiding party) 'was familiar with the procedure' to be followed in obtaining such 'warrant.'

Shortly before 6 a.m. on April 22, and pursuant to plan, approximately fourteen law enforcement officers converged on the ranch. None of them had a warrant to search the premises or to arrest anyone. ⁴ After the two dwellings on the ranch had been surrounded, agent Barnes knocked on a door of one ('the southern house') and called out 'Police officer; we have an arrest warrant for Chester Bowyer and demand entrance; open the door.' After thirty seconds or so, an officer called from the rear of the southern house that someone was leaving it through a window. Barnes immediately tried the door, found it locked, directed another officer to force it open, and entered the house. He saw petitioner Thomason coming away from an open window, identified himself, and ordered Thomason detained.

Barnes then went to another outer door of the southern house. Petitioner Chester Bowyer opened this door as Barnes approached it, and was placed under arrest. Barnes arrested petitioner Mary Bowyer, inside the southern house, immediately thereafter.

Simultaneously with Barnes' knock and announcement at the first door of the southern house, state narcotics agent Duncan knocked on a door of the other residence ('the northern house,' which was immediately nearby) and called 'Police officers, we have an arrest warrant for Chester Bowyer, demand entrance (sic).' The door swung open to his knock, whereupon he repeated the announcement and entered the house with Sergeant Clair. No one was inside but, between them, the officers detected a strong odor of marijuana and saw, in plain view in the living room In the course of these events, the officers made limited searches of both houses for the purpose of discovering whether other suspects were present. None were found, and the officers saw no contraband other than the items which had been observed as mentioned above. Because of the discovery of those items, Barnes decided that a thorough search of the premises was necessary and that he should obtain a 'telephonic search warrant' for that purpose as previously suggested by assistant district attorney Cottle. After conferring with Sergeant Asbury concerning the procedure, and using the ranch telephone, Barnes called Cottle in Santa Cruz, recounted the events of the morning, and described the physical layout of the ranch. The two had a 'lengthy discussion, talking in terms of probable cause.' Cottle told Barnes to have Sergeant Asbury set up a three-way 'conference call' among Barnes, Cottle, and the local magistrate. Cottle then telephoned the magistrate and alerted him to the impending call.

burning candles and cigarettes, marijuana cigarettes and roaches, and a piece of hashish. Noting an open window, Sergeant Clair went outside to look for fugitives. Shortly thereafter, he apprehended petitioner Robinson under circumstances suggesting that the latter was in flight from the northern house. ⁵ After Robinson had been returned to the dwelling area, Barnes placed all four petitioners under arrest for possession of the contraband which had been observed in the northern house.

Asbury arranged and tape-recorded the conference call. It commenced at 7:45 a.m. on April 22, approximately two hours after the officers had arrived at the ranch. According to a transcript of Asbury's tape as made later and received in evidence at the hearing, the call consisted of questions or statements by the magistrate and responses by Barnes. It commenced with the following exchange:

'(By the magistrate:) . . . (Name) . . ., Municipal Court Judge for Santa Cruz County is on this line, along with Chris Cottle, Asst. District Attorney for Santa Cruz County. I will ask you some questions Mr. Barnes, if you would try as best you can to answer the questions please.

'Mr. Barnes, do you swear that the information you've gotten together is true to the best of your knowledge?

'(By Barnes:) Yes your honor, I do.

'All right, Mr. Barnes, please state your full name and occupation.

'Yes sir, my full name is Michael Allan Barnes. I'm a Special Agent for the Department of Justice, assigned to the Bureau of Narcotic Enforcement for the State of California.

'All right, did you, in the company of some Santa Cruz County Sheriff's officers and federal officers, go to a location in Felton, Santa Cruz County, this morning?

'Yes sir.

'Would you describe where that location is?

'Yes sir . . .'

Continuing, Barnes gave the magistrate a detailed account of his previous investigation of the Bowyers and the ranch, and of everything that had occurred on the premises from the time of the officers' arrival there on that morning. His recital included a detailed description of the ranch and the dwellings, of two automobiles which had been observed on the premises, and of his qualifications to identify marijuana at sight. The conference call concluded with this exchange:

'(By the magistrate:) All right, I take it you are asking for a warrant for the '(By Barnes:) Yes sir, I'd like to search all of these premises and the outbuildings for marijuana and for items used to process marijuana for sale, or for personal use, documents that show residency, ownership, possession and markers showing sales in relationship with other subjects for the purpose of sale and the processing of marijuana.

search of all of these premises you described?

'With regard to the two vehicles that you have described, do you also wish to search those?

'Yes sir.

'Just for review, one is a white Dodge, license #ORN--116, Nevada license and the other is a blue Volkswagon station wagon, California license #TJE--374.

'Yes sir, that's correct.

'All right, You have a right to search the premises as described for the items mentioned and any other items of contraband that you find thereto.

'All right your honor, thank you.

'That includes cars too. All right, If you'll affix my name please to the search warrant, that will be filed with the court along with a transcript of this recording.' (Emphases added.)

In a thorough search of both houses and other areas on the ranch, conducted immediately after conclusion of the conference telephone call and pursuant to the magistrate's authorization to search as orally granted therein,...