Greven v. Superior Court of Santa Clara County

• Citation: 455 P.2d 432,78 Cal.Rptr. 504,71 Cal.2d 287
• Decision Date: 18 June 1969
• Docket Number: S.F. 22635
• Court: United States State Supreme Court (California)
• Parties: , 455 P.2d 432 Thomas Edward GREVEN et al., Petitioners, v. The SUPERIOR COURT OF the COUNTY OF SANTA CLARA, Respondent; The PEOPLE, Real Party in Interest.

Page 504

78 Cal.Rptr. 504

71 Cal.2d 287, 455 P.2d 432

Thomas Edward GREVEN et al., Petitioners, v. The SUPERIOR COURT OF the COUNTY OF SANTA CLARA, Respondent;

The PEOPLE, Real Party in Interest.

S.F. 22635.

Supreme Court of California,

In Bank.

June 18, 1969.

Dominic J. Sposeto, San Jose, for petitioners.

No appearance for respondent.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci, Michael Buzzell and Derald E. Granberg, Deputy Attys. Gen., for real party in interest.

SULLIVAN, Justice.

In count one of an information filed on July 26, 1968, the six petitioners (Thomas Edward Greven, John Buchanan Karigan, Benjamin Falk, Georgia Lee Otoupalik, Brooks Pride Hodapp and Candace Ann Jacobs) were charged with possession of marijuana in violation of section 11530 of the Health and Safety Code. ¹ In count two the six petitioners were charged with cultivation and growing of marijuana in violation of the same section. In count three, four of the petitioners (Falk, Hodapp, Karigan, Greven) were charged with maintaining a place for the unlawful use of narcotics in violation of section 11557. In count four petitioner Otouplik was charged with possession of amphetamine in violation of section 11910. In count five petitioners Hodapp and Karigan were charged with possession of lysergic acid diethylamide, also known as LSD, in violation of section 11910.

Petitioners (defendants below) entered pleas of not guilty on all counts and moved to suppress evidence under section 1538.5 of the Penal Code. It was stipulated that such motion be submitted on the transcript of the preliminary examination and argument by counsel. The motion was denied after a special hearing (§ 1538.5, subd. (i)) and petitioners thereupon filed the instant petition for a writ of mandate or prohibition. (Pen.Code, § 1538.5, subd. (i).) We issued an alternative writ of prohibition.

Evidence of the following facts was presented at the preliminary examination: About 1 a.m. on June 14, 1968, a group of nine officers of the San Jose Police Department assembled in the parking lot of a cannery in that city. On a previous occasion, Officer Frechette, one of the group, had purchased marijuana from defendant Falk at the latter's residence which was located near the parking lot. Earlier in the evening of June 14, Frechette had attempted to make another purchase from Falk; the attempt had failed, but the officer had been admitted to Falk's house, had seen marijuana in Falk's possession, and had seen and heard other persons on the premises. After Officer Frechette returned to the group of police at the parting lot and related the above information, all of the officers proceeded to the Falk residence to make an arrest. ² They had no warrants of any kind.

The Falk residence, which the lieutenant in charge of the group termed a 'Hippie type pad' in his testimony before the magistrate, was apparently an older house rented by the four male defendants and frequented by students and other collegeage persons. The kitchen, where earlier that evening Officer Frechette had seen marijuana in Falk's possession, was located at the rear of the house and at the end of a hall leading from the front doorway. As the officers approached they noted that lights were on in the kitchen area but that the remainder of the house, including the entire front portion, was dark.

Led by Lieutenant Hardman, the officer in charge, the group of officers went to the front door of the residence. The lieutenant knocked on the front door and, according to the undisputed testimony of one of the officers, 'We waited for ten to fifteen seconds, received no answer, heard no footsteps or activity within the residence, tried the front door which was unlocked and entered the residence.' ³ Lieutenant Hardman proceeded directly down the darkened hallway to the kitchen, where he found Falk studying at a table; on the table was a small quantity of marijuana and some cigarette papers. The other officers, using flashlights, searched the several darkened bedrooms which branched off from the hallway. Defendant Otoupalik was found in one of the bedrooms; in her purse were capsules which were later shown to be amphetamines. Defendant Greven was asleep in another bedroom; a small quantity of marijuana was found on a shelf near his bed. Defendant Karigan was found lying on a mattress in another bedroom; in a knapsack in the room were found a small quantity of marijuana and some capsules which were later shown to be LSD. Defendants Hodapp and Jacobs were discovered lying together on a mattress in another bedroom; a small quantity of marijuana was found in a dresser drawer in the bedroom, and a subsequent search of a storage room disclosed a knapsack bearing the name of defendant Hodapp and containing some capsules later shown to be LSD. Finally, on the back stairway of the house the officers found a wooden crate containing cultivated marijuana plants. All defendants were arrested.

Immediately after their arraignment in the superior court petitioners moved under section 1538.5 of the Penal Code to suppress evidence obtained at the Falk residence. As one of the grounds for this motion they urged that the seizure of this evidence and the attendant search were unreasonable and unlawful because the officers had failed to comply with the provisions of section 844 of the Penal Code. ⁴ It is upon this ground that they seek relief in the instant proceeding.

We first conclude that the issue sought to be raised is properly before us at this time. An entry effected in violation of the provisions of section 844 or its counterpart section 1531 renders any following search and seizure 'unreasonable' within the meaning of the Fourth Amendment. (People v. Rosales (1968) 68 Cal.2d 299, 304--305, 66 Cal.Rptr. 1, 437 P.2d 489; People v. Gastelo (1967) 67 Cal.2d 586, 588--589, 63 Cal.Rptr. 10, 432 P.2d 706; see Miller v. United States (1958) 357 U.S. 301, 313--314, 78 S.Ct. 1190, 2 L.Ed.2d 1332.) Section 1538.5, subdivision (a), provides that a defendant may move to suppress as evidence any thing obtained 'as a result of a search or seizure on the ground that: (1) The search or seizure without a warrant was unreasonable * * *.' The motion may be made in the first instance at a special pretrial hearing ⁵ before the superior court subsequent to the issuance of an information or the finding of an indictment. (§ 1538.5, subd. (i).) 'After the special hearing is held in the superior court, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his motion at the special hearing.' (§ 1538.5, subd. (i).) Defendants, by promptly raising the issue of noncompliance with section 844 as a ground of their motion to suppress under section 1538.5 and by seeking appropriate extraordinary relief upon denial of this motion, have properly presented the issue for determination by this court.

We turn to the merits. The Attorney General does not suggest that the entry here in question was effected in strict compliance with the literal terms of section 844. He does urge, however, that the entry was effected in a manner which constituted 'substantial compliance' with the terms of the section--and he relies upon the several cases wherein this court has upheld an entry which did not strictly comport with the statutory requirements. (See People v. Marshall (1968) 69 A.C. 46, 50--51, 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 116; People v. Carswell (1959) 51 Cal.2d 602, 607, 335 P.2d 99; People v. Martin (1955) 45 Cal.2d 755, 762--763, 290 P.2d 855.)

The reliance is misplaced. It is true that in the cited cases this court has held that the requirements of section 844 were satisfied by 'substantial compliance' which fell short of strict literal compliance. In each of these cases, however, the officers prior to entry not only gave notice of their presence through knocking or some other means But also identified themselves as police officers. It was the second requirement of section 844, to wit, that the officers explain 'the purpose for which admittance was desired,' which we undertook to apply in light of the facts and circumstances of the case in order to determine whether 'substantial compliance' had been achieved in the absence of an express announcement of purpose. In People v. Rosales, Supra, 68 Cal.2d 299 at page 302, 66 Cal.Rptr. 1, at page 3, 437 P.2d 489 at page 491, we recently restated the rationale of these cases: 'Such identification (i.e., identification as police officers without an express announcement of purpose) alone could constitute substantial compliance with section 844 only if the surrounding circumstances made the officers' purpose clear to the occupants or showed that a demand for admittance would be futile.' (See also People v. Cockrell, Supra, 63 Cal.2d 659, 665--666, 47 Cal.Rptr. 788, 408 P.2d 116; People v. Martin, Supra, 45 Cal.2d 755, 762--763, 290 P.2d 855.)

It is clear that the cases here under consideration stand for the proposition that an entry is not Necessarily unlawful because the officers fail to make an express announcement of purpose. It is equally clear that they go no further than that. Neither they nor any other decision of this court has ever held that 'substantial compliance' with section 844 can be achieved in the absence of an announcement by the officers identifying themselves as such. ⁶

There is a very good reason for this. Announcement rules such as that set forth in section 844 rest upon a doctrinal base exhibiting two related aspects. One of these reflects 'the reverence of the laws for the individual's right of privacy in his house.' (Miller v. United States, Supra, 357 U.S. 301, 313, 78 S.Ct. 1190, 1198, 2 L.Ed.2d 1332; see also Sabbath v. United States (1968) 391...