Cohen v. Superior Court
Citation | 85 Cal.Rptr. 354,5 Cal.App.3d 429 |
Court | California Court of Appeals |
Decision Date | 16 March 1970 |
Parties | Mary Beth COHEN, Stephen Michael Cohen and Howard Dennis Barnes, Petitioners, v. SUPERIOR COURT of the State of California, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 35688. |
Evelle J. Younger, Dist. Atty., Harry Wood and Robert J. Lord, Deputy Dist. Attys., for real party in interest.
No appearance for respondent.
*
Petitioners were charged with possession of marijuana for sale, in violation of section 11530.5 of the Health and Safety Code. They moved, pursuant to section 1538.5 of the Penal Code, to suppress certain evidence secured by the police under the circumstances hereinafter set forth. Their motion was denied, and they seek in this court a writ of mandate to require that the order of denial be vacated. For the reasons hereinafter set forth, we grant the writ with directions that they be afforded a new evidentiary hearing on their motion.
In ruling on the motion to suppress, the trial judge considered the testimony taken at the preliminary hearing pursuant to stipulation of counsel.
Officer James Maloney testified that he received an anonymous telephone call at 11:15 p.m., on February 19, 1969. He was advised that a female Caucasian, about 20 years old with long blond hair, was engaged in prostitution at 3731 Leland, apartment 402. Along with Officers Scroggins and Turner, Officer Maloney went to the above address to investigate the informer's tip. Upon arrival the officers walked to the fourth floor of the building. No activity was observed in the hallway. The police did not at this time knock on the door or identify themselves to anyone. A fire escape is located at the south end of the hallway next to apartment 402. The fire escape is made of metal and is attached to the outside of the building. To gain access to the metal fire escape it is necessary to pass through a doorway marked 'Exit.' Photographs of the fire escape, introduced into the record, indicates that the escape ladder could be reached by going directly through the exit door to the head of the descent ladder. Officer Maloney stepped out onto the fire escape (see photograph here reproduced) and stepped to his left two or three feet, which placed him in front of a window of apartment 402, through which he could observe the inside of that apartment. Looking through the window Officer Maloney observed one of the petitioners seated at a kitchen table. In front of her on the table was a clear plastic bag containing a green leafy substance which appeared to be marijuana. Another person was observed in the living room. Officer Maloney was joined on the fire escape by Officer Scroggins. Officer Scroggins also looked through the window and told Officer Maloney he believed the substance they saw in the apartment was marijuana. Officer Scroggins and Officer Turner went to the door of apartment 402 while Officer Maloney remained at the window. It was agreed that Officer Maloney would whistle if any of the occupants tried to destroy any of the evidence. Officer Maloney heard the words 'police officers' at which time a man (later identified as Stephen Michael Cohen) entered the kitchen in a 'fast movement.' Officer Maloney whistled because he thought Mr Cohen 'was going to try and destroy the evidence that was on the table.'
Officer Charles J. Turner testified that on February 19, 1969, he went to 3731 Leland, apartment 402, with Officer Maloney and Officer Scroggins. While Officer Maloney was on the outside fire escape, he and Officer Scroggins went to the door of apartment 402. Officer Scroggins knocked on the door of that apartment. The door was opened approximately two inches by Howard Dennis Barnes. The door had a chain lock. Each officer exhibited his badge, at which time Officer Turner stated, Mr. Barnes 'just stood there' and looked to his left in the direction of the kitchen. Officer Turner heard footsteps from the living room towards the kitchen. At this time he also heard a whistle. Officer Turner again told Mr. Barnes to open the door. Mr. Barnes did not move. At this time the door was forced open. The apartment was searched. In a closet off the bathroom Officer Turner found a brown bag containing 12 plastic bags filled with a green leafy substance resembling marijuana.
The petitioners' motion to suppress all the evidence seized in the apartment was denied.
The trial court summarized its analysis of the evidence and applicable law as follows:
1. The evidence should have been suppressed as the product of an unreasonable search and seizure following a major trespass.
2. The evidence was inadmissible because the entry was made in violation of Penal Code section 844.
Petitioners' contention that Penal Code section 844 was violated under these facts is without merit. The police literally complied with the requirements of section 844. The forcible opening of the door was made necessary by...
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