Duke v. Superior Court

• Citation: 82 Cal.Rptr. 348,1 Cal.3d 314
• Court: United States State Supreme Court (California)
• Decision Date: 04 December 1969
• Parties: , 461 P.2d 628 Paul George DUKE, Jr., Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real-Party in Interest. L.A. 29657.

Page 348

82 Cal.Rptr. 348

1 Cal.3d 314, 461 P.2d 628

Paul George DUKE, Jr., Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent The PEOPLE, Real-Party in Interest.

L.A. 29657.

Supreme Court of California In Bank.

Dec. 4, 1969.

Richard S. Buckley, Public Defender, Barry Russell and James L. McCormick, Deputy Public Defenders, for petitioner.

No appearance for respondent.

Evelle J. Younger, Dist. Atty., Harry Wood and Robert J. Lord, Deputy Dist. Attys., for real party in interest.

TOBRINER, Justice.

The District Attorney of Los Angeles County filed an information against Paul George Duke, Jr., charging him with possession of sodium secobarbital, a restricted dangerous drug, in violation of section 11910 of the Health and Safety Code. Petitioner entered a plea of not guilty and moved to suppress evidence under section 1538.5 of the Penal Code. The parties stipulated to the submission of the motion on the transcript of the preliminary examination and argument by counsel. The superior court held a special hearing (§ 1538.5, subd. (i)) and denied the motion. Petitioner thereupon filed the instant petition for an alternative writ of mandate (Pen.Code, § 1538.5, subd. (i)).

We shall point out why we have ordered the issuance of a peremptory writ of mandate directing the respondent court to grant petitioner's motion to suppress the evidence obtained as a result of the search of petitioner's home on January 21, 1969. We have concluded that (1) in searching petitioner's home the police officers failed expressly to comply with the requirements as to notice and identification of section 844 of the Penal Code and failed substantially to comply with the requirements of that section as to announcement of the purpose of the officers' entry; (2) neither the consent of the petitioner's wife given when she was absent from the premises, nor the circumstances of the search excused compliance with section 844; ¹ and (3) the subsequent entry rendered the search and seizure 'unreasonable' within the meaning of the Fourth Amendment. (Greven v. Superior Court (1969) 71 A.C. 303, 78 Cal.Rptr. 504, 455 P.2d 432; People v. Rosales (1968) 68 Cal.2d 299, 66 Cal.Rptr. 1, 437 P.2d 489; People v. Gastelo (1967) 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706; Tompkins v. Superior Court (1963) 59 Cal.2d 65, 27 Cal.Rptr. 889, 378 P.2d 113.)

1. The facts presented at the preliminary examination

In the early morning hours of January 21, 1969, Raul D. Amescua, a police officer with the Los Angeles Police Department, interviewed petitioner's wife, Judith Duke, at 433 Delores Street. She complained to the officer that petitioner had slapped and beaten her, that she was afraid of him, and that she had observed a bottle of red pills in a medicine cabinet in the bathroom which she had never seen before. She gave the officer permission to enter her house at 413 McDonald Street, indicated that the front door was unlocked, and said that the petitioner was asleep in the bedroom. The officer summarized the result of the interview: 'she gave me permission to enter her house to find out what these pills were and see if I could arrest her husband for ADW.' ²

Petitioner's wife did not accompany Officer Amescua and his fellow officer to her home. The officers knocked on the front door, waited about 30 seconds, heard no response or any other noise, did not identify themselves as police officers, did not verbally demand admittance, did not explain the purpose for which they desired admittance, opened the closed but unlocked door, and walked into petitioner's bedroom where he was sleeping. The officers approached petitioner, asking him if his name was Paul Duke. Petitioner responded in the affirmative. After speaking briefly with petitioner, Officer Amescua went into the bathroom of the residence, looked into the medicine cabinet, and found a bottle containing red pills on the third shelf. The officers placed petitioner under arrest. A forensic chemist later identified the pills as capsules of sodium secobarbital, a restricted dangerous drug which induces sleep.

2. The police officers did not comply with section 844

The entry here in question did not comply with the terms of section 844, and the Attorney General does not suggest that it did so. ³ Section 844 provides: 'To make an arrest, a private person, if the offense be a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.' ⁴ (Italics added.) The police officers knocked and waited no more than 30 seconds before opening the closed but unlocked door; ⁵ they did not comply with the terms of section 844 in that they failed (1) to knock or utilize other means reasonably calculated to give adequate notice of their presence to the occupants, (2) to identify themselves as police officers, and (3) to explain the purpose of their demand for admittance. (Greven v. Superior Court, supra, 71 A.C. 303, 305, 78 Cal.Rptr. 504, 455 P.2d 432; People v. Rosales, supra, 68 Cal.2d 299, 302, 66 Cal.Rptr. 1, 437 P.2d 489.)

This court has held that the police cannot comply with the absolute minimum required by section 844 without (1) knocking or utilizing other means reasonably calculated to give adequate notice of their presence to the occupants and (2) identifying themselves as police officers. (Greven v. Superior Court, supra, 71 A.C. 303, 307--308, 78 Cal.Rptr. 504, 455 P.2d 432.) We have, however, found substantial compliance with the requirement of section 844 as to statement of purpose in some cases in which the police officers identified themselves and requested admittance before entering, but did not expressly state the purpose of their request for admittance.

In People v. Rosales, supra, 68 Cal.2d 299, 302, 66 Cal.Rptr. 1, 437 P.2d 489, we held that identification alone could constitute substantial compliance with the requirement of section 844 as to the statement of purpose only if the surrounding circumstances made the officers' purpose clear to the occupants. In Rosales, we found that the police did not comply with the section when they identified themselves but failed to request admittance or to explain their purpose. In Greven v. Superior Court, supra, 71 A.C. 303, 311, 78 Cal.Rptr. 504, 455 P.2d 432, a case in which the police rapped on the door, waited 10 to 15 seconds, received no response, opened the closed but unlocked door, and went into a house where several people were asleep and one person was reading at the kitchen table, we held that substantial compliance cannot be 'achieved in the absence of a statement of authority prior to entry.' ⁶

Hence, the police in the instant case did not comply with the absolute minimum required by section 844 in that they did not demand admittance prior to entry and state their authority. (Greven v. Superior Court, supra, 71 A.C. 303, 78 Cal.Rptr. 504, 455 P.2d 432.) Furthermore, even if the police had met these requisites, the circumstances of this case would have required an explanation of purpose. Only in a case in which an occupant of a house or apartment could reasonably be expected to know the purpose of the police visit without notification, have we found that a mere demand for admission accompanied by a statement of authority constituted substantial compliance with the explanation of purpose requirement of section 844. (See People v. Marshall (1968) 69 Cal.2d 51, 55--56, 69 Cal.Rptr. 585, 442 P.2d 665; People v. Cockrell (1965) 63 Cal.2d 659, 665--666, 47 Cal.Rptr. 788, 408 P.2d 166; People v. Martin (1955) 45 Cal.2d 755, 762--763, 290 P.2d 855.)

The present case does not indicate any justification for the failure of the police to announce their purpose as required by section 844. Although petitioner had assaulted his wife a few hours before the police arrived and petitioner possessed some sodium secobarbital, apparently for his own use, petitioner had gone to sleep long before the police arrived. Nothing indicates that he could have divined their purpose in wishing to enter even if they had announced their identity. Petitioner had not been in contact with the police during the evening before he went to sleep. (Compare People v. De Santiago (1969) 71 A.C. 18, 30--31, 76 Cal.Rptr. 809, 453 P.2d 353, with People v. Martin, supra, 45 Cal.2d 752, 762--763, 290 P.2d 855.) He was not, during that evening, engaged in dealing in drugs with a number of strangers, one of whom might be an informant. (See People v. Marshall, supra, 69 Cal.2d 51, 69 Cal.Rptr. 585, 442 P.2d 665; People v. Cockrell, supra, 63 Cal.2d 659, 47 Cal.Rptr. 788, 408 P.2d 116.)

3. Compliance with section 844 was not excused by the consent of petitioner's wife to search the premises, by the belief of the officers that compliance would have increased their peril, or by furtive conduct of the occupant of the premises

Although we have concluded that the police neither fully complied with all the requirements of section 844 nor substantially complied with the section's statement of purpose requirement, we must still consider whether the consent of petitioner's wife to the search of her home or other circumstances excused such compliance. The purposes and policies underlying section 844 are fourfold: (1) the protection of the privacy of the individual in his home (see Sabbath v. United States, supra, 391 U.S. 585, 589, 88 S.Ct. 1755; Miller v. United States, supra, 357 U.S. 301, 313, 78 S.Ct. 1190; Greven v. Superior Court, supra, 71 A.C. 303, 308, 78 Cal.Rptr. 504, 455 P.2d 432; People v. Maddox (1956) 46 Cal.2d 301, 306, 294 P.2d 6); (2) the protection of innocent persons who may also be present on the premises where an arrest is made (see People v. Rosales, supra, 68 Cal.2d 299, 304, 66 Cal.Rptr. 1, 437 P.2d 489); (3) the prevention of...