Hart v. Superior Court

Decision Date24 November 1971
Citation98 Cal.Rptr. 565,21 Cal.App.3d 496
CourtCalifornia Court of Appeals Court of Appeals
PartiesRobert H. HART, Petitioner, v. The SUPERIOR COURT of the State of California, In and For the COUNTY OF SAN MATEO, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 30179.

Romines, Wolpman, Tooby, Eichner, Sorensen, Constantinides & Cohen, James H. Wolpman, Menlo Park, for petitioner.

Evelle J. Younger, Atty. Gen. of State of California, Robert R. Granucci, Karl J. Uebel, Deputy Attys. Gen., San Francisco, for respondent and real party in interest.

KANE, Associate Justice.

On November 2, 1970, pursuant to a search warrant secured on the same day, the house and backyard of premises located at 1827 Clarke Avenue in East Palo Alto were searched by officers of the San Mateo County Sheriff's Office. Contraband found in the living room, dining room, each of three bedrooms, and the garage, together with marijuana and peyote cactus plants growing in the backyard, were seized.

Petitioner, one of the three men who resided on the premises, was charged with violations of Health and Safety Code sections 11530 (possession of marijuana), 11530.1 (cultivation and processing of marijuana), 11530.5 (possession of marijuana for sale), and 11540 (cultivation of peyote). After a preliminary hearing, during which petitioner's motion to suppress under Penal Code section 1538.5 was denied, petitioner was held to answer to the superior court on all charges, except possession of marijuana for sale.

Following denial of his motion to dismiss the information under Penal Code section 995, petitioner initiated proceedings in this court seeking a writ of prohibition to restrain the superior court from taking any further action.

The fundamental argument by petitioner is that the incriminating evidence was obtained in the course of an unlawful search.

The specific contentions urged are: (1) the search warrant was invalid; (2) the entry made in executing the warrant failed to comply with Penal Code section 1531; 1 and (3) petitioner's right to privacy was violated.

Validity of Search Warrant

The search warrant authorizing the search of the premises was issued upon the affidavit of Sergeant Ralston Eng of the San Mateo County Sheriff's Office. The affidavit in support of the search warrant shows that petitioner's neighbor had first informed another officer that he had looked through a fence and had observed what appeared to be marijuana plants growing in petitioner's backyard. Sergeant Eng went to the neighbor's yard and 'looked through a 1/2 inch area separating the wood planks of said fence and personally observed thirty plants five to six feet in height' growing in petitioner's backyard. On the basis of his extensive training and experience in the field of narcotics, he concluded that the plants were marijuana. 2

Petitioner contends, however, that the officer's observation of the marijuana plants growing in the backyard did not furnish sufficient cause to search all the rooms in petitioner's residence.

Health and Safety Code section 11530.1 prohibits a person from planting, cultivating, harvesting, drying or processing any marijuana. Sergeant Eng alleged in his affidavit that articles and property used as a means of committing the offense and intended to be used as a means of committing the offense were located 'in and upon the premises and building,' and that these articles and property were needed as evidence in the prosecution of the offense. The articles and property were particularly described as 'Approximately thirty marijuana plants approximately five to six feet in height, planted and being cultivated in the rear yard of said premises; any processed marijuana found at said premises; any cultivation tools, watering cans, marijuana seeds, fertilizer and garden tools used for cultivation purposes, books or reading materials on the planting, cultivating, harvesting, and processing of marijuana plants and plastic translucent sheets approximately 60 feet by 30 feet.'

We conclude that it was reasonable to believe that many of the aforementioned articles would be stored within the house and consequently a search of the entire house, pursuant to the search warrant, was proper.

Did the Officers Comply with Penal Code Section 1531?

Petitioner next contends that the officers did not comply with section 1531 when they executed the search warrant.

Section 1531 reads as follows: 'The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.'

Sergeant Eng testified that he first knocked on the front door Several times drawing no response. He Then looked through an undraped window into the living room but saw no one, although he did see a partially smoked, hand-rolled cigarette and several packages of zig zag paper. He Knocked on the window several times and still received no response. He then went to the back of the house, thinking someone might be in back. After Knocking on a side door, again receiving no response except from a barking dog inside the house, he returned to the front door and Knocked again. He noticed lights were on in the house and that the dog was then in the living room. He again knocked on the front door--still no response. He then tried the front door, and when he found it opened, he went in. No one was present within the house. Approximately ten minutes later one of petitioner's cotenants, Vandagriff, arrived, was advised of the search warrant, placed under arrest and given a Miranda warning. A few minutes later petitioner arrived and was arrested.

Petitioner argues that because Sergeant Eng did not announce his authority and purpose 3 the entry to execute the search warrant was unlawful. The People contend that notice of authority and purpose would be futile until there was some indication someone was inside, and since in this particular case no one actually was inside, failure of the officer to announce his 'authority and purpose' may be excused.

In our view the position of the Attorney General is unassailable.

Despite the voluminous number of decisions in recent years covering the general subject of search and seizure we are here confronted with a question of first impression, viz.: Where no human being is present on premises to be searched, must a peace officer in executing a search warrant nevertheless announce 'his authority and purpose' before entering the premises?

Petitioner contends that we must answer this question in the affirmative. He relies primarily upon three decisions of our Supreme Court--Greven v. Superior Court (1969) 71 Cal.2d 287, 78 Cal.Rptr. 504, 455 P.2d 432; People v. Bradley (1969) 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129; and Duke v. Superior Court (1969) 1 Cal.3d 314, 82 Cal.Rptr. 348, 461 P.2d 628. Each of these cases, however, specifically dealt with section 844 4 which, although identical in fundamental principle with section 1531 (Greven v. Superior Court, supra, 71 Cal.2d p. 292, fn. 6, 78 Cal.Rptr. 504, 455 P.2d 432), has an entirely and significantly different objective. Therefore, as applied to the facts of this case, we do not believe that the holding of those cases is applicable.

Because of the general similarity of the purposes of the two sections, an initial reading of those cases directly interpreting section 844 would suggest that technical and literal compliance with the terms of section 1531 is mandatory. Careful analysis, however, dispels such an unreasonable, unworkable rule.

What must be kept in mind is accomplishment of the objective and intent of the statute rather than adherence to what Justice Mosk so aptly describes as 'ritualistic compliance' (Duke v. Superior Court, supra, 1 Cal.3d at p. 327, 82 Cal.Rptr. 348, 461 P.2d 628).

The general purposes of Penal Code section 844 (and Pen.Code § 1531) are very definitively expressed in Duke, supra, as follows: 'The purposes and policies underlying section 844 are four-fold: (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, (20 L.Ed.2d 828, 833); Miller v. United States, supra, 357 U.S. 301, 313, 78 S.Ct. 1190, (2 L.Ed.2d 1332, 1340); Greven v. Superior Court, supra, 71 Cal.2d 287, 292, 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 in made (see People v. Rosales, supra, 68 Cal.2d 299, 304, 66 Cal.Rptr. 1, 437 P.2d 489); (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice (Greven v. Superior Court, supra, 71 Cal.2d 287, 292--293, 78 Cal.Rptr. 504, 455 P.2d 432); 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, fn. 12, 78 S.Ct. 1190 (2 L.Ed.2d 1332, 1340); People v. Rosales, supra, 68 Cal.2d 299, 304, 66 Cal.Rptr. 1, 437 P.2d 489; and (4) the protection of police who might be injured by a startled and fearful householder.' (P. 321, 82 Cal.Rptr. p. 352, 461 P.2d p. 632.)

Obviously the factual situation in each case must be considered in the light of these judicially declared purposes. Thus, a body of law in this field has developed to such an extent that our state Supreme Court has recently pointed out that 'substantial compliance' can occur only when there has been some attempt to comply whereas 'excused noncompliance' can occur in situations where either the attempt falls short of substantial compliance and/or where there has been no attempt whatsoever (People v. Hall (1971) 3 Cal.3d 992, 998, fn. 3, 92 Cal.Rptr. 304, 479 P.2d 664). In short, the rule, under either section, is not...

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