Horack v. Superior Court of Orange County
| Citation | 6 Cal.App.3d 638,86 Cal.Rptr. 137 |
| Court | California Court of Appeals |
| Decision Date | 16 April 1970 |
| Parties | David Michael HORACK, Petitioner, v. SUPERIOR COURT OF the COUNTY OF ORANGE, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 10077. |
Herbert M. Porter, Los Angeles, for petitioner.
Cecil Hicks, Dist. Atty., Michael R. Capizzi, and Oretta D. Sears, Deputy Dist. Attys., for respondent and real party in interest.
Petitioner seeks a writ of mandate to compel the suppression of evidence after an order dated November 4, 1969 denying his motion to suppress evidence pursuant to Penal Code, section 1538.5.
The motion to suppress was submitted to the trial court on the transcript of the preliminary hearing, supplemented by additional testimony taken at the time of the hearing on the motion. 1
Petitioner contends that the evidence sought to be suppressed resulted from an unlawful search and seizure and from a forcible entry by the police without compliance with section 844 of the Penal Code; that the municipal court in which the preliminary hearing was had and which held petitioner to answer was without subject matter jurisdiction and that the prosecution engaged in unlawful forum shopping, thereby depriving petitioner of due process of law.
On Saturday, June 28, 1969, Officer Thompson of the Newport Beach Police Department, while on patrol duty in a police vehicle, received a message on his two-way radio from the dispatcher informing him that a Mrs. Hamplin, whose address was 521 Riverside, Newport Beach, had called and reported that she had seen two 'hippie-type' individuals with sleeping bags enter into the residence located next door to her at 519 Riverside, which residence was known to Mrs. Hamplin to be 'vacant.' Officer Thompson proceeded to Mrs. Hamplin's residence and attempted to contact Mrs. Hamplin by knocking on the door, but received no answer. 2
Having been unable to contact the informant, Officer Thompson went over to the residence at 519 Riverside and, stationing another officer at the rear of the residence, Officer Thompson went up to the front door. He knocked on the door, announced his presence and identified himself by announcing 'Police Officer.' Standing in front of the door, he could see into the front room of the house through a window in the upper portion of the door. The room was carpeted, but otherwise contained no furniture or furnishings of any kind with the exception of a stereo speaker enclosure approximately three feet high, 15 inches wide and 15 inches deep, on top of which there was a stereo amplifier about five feet deep, 20 inches wide and 20 inches high. 3 The stereo was turned on and emitting music 'quite loud.' Receiving no response, Officer Thompson tried the door and found it locked.
Officer Thompson then proceeded to the rear of the house, at which time he was joined by another officer, Sergeant Petersen. The other officer who had been stationed at the back door then left. Officer Thompson and Sergeant Petersen approached the rear door and knocked. They received no response. They then tried the door and found it unlocked. Officer Thompson opened the door, and before entering, again announced 'Police Officer.' Still receiving no response, Officer Thompson and Sergeant Petersen entered the house with guns drawn for their protection and conducted a room-by-room, and closet-by-closet search for the persons who had reportedly entered the house and whom the officers believed to be hiding in the house. The entry was made at approximately 1:00 p.m.
Officer Thompson testified that the reason he sought entry was to 'ascertain if there were people in the dwelling that did not have the authority to be inside.' He said that he thought 'there might be possibly a burglary being committed inside the residence.' However, he admitted on voir dire that he saw nothing to indicate that a burglary was going on at the time. He also testified that he interpreted the original report of Mrs. Hamplin as indicating a 'possible illegal entry.' He further candidly stated that, prior to entry, except for the unsuccessful attempt to communicate with Mrs. Hamplin, he made no attempt to ascertain the true ownership of the residence nor to ascertain whether the utilities or telephone had been turned on and that he had never heard of a vagrant just going into a house to sleep, having expensive stereo equipment, nor had he ever heard of anybody leaving equipment that valuable when they moned out of a house leaving it vacant. He also testified that the appellation 'hippie-type' had no special significance to him and that he did not know what Mrs. Hamplin meant by 'hippie-type.' Additionally, he testified that when he knocked at the front door and announced that he was a police officer, he did not see or hear any indication that anybody heard him and that the same was true with respect to his knock and announcement at the back door. He further testified, however, that he entered 'Looking for individuals hiding; figured that they probably heard me and were hiding if they were in there.'
The room-by-room, closet-by-closet search for persons in hiding by Officer Thompson and Sergeant Petersen disclosed no one in the house but did reveal certain contraband, papers and other evidence. The facts surrounding the discovery of this evidence are hereinafter detailed. At a point when the search for persons in hiding was about concluded, the other officer who had originally been stationed at the rear door returned and joined Officer Thompson and Sergeant Petersen, and, after the search for persons in hiding was concluded, Offecer Thompson, using the telephone in the living room, telephoned the police station and requested that Officer Epstein come to the residence. Upon Officer Epstein's arrival, accompanied by Investigator Spears, Officer Epstein and the other officers present conducted a further search of the residence disclosing additional contraband, papers and items. The circumstances of this additional search are more particularly detailed hereinafter.
The residence at 519 Riverside is not in an isolated area, but is located in a well-populated portion of Newport Beach. The judge who heard the 1538.5 motion took judicial notice of the facts that Newport Beach is a resort area in which the owners and rightful occupants of residences are often absent for substantial parts of the year and that it is not uncommon for the owners, upon leaving their resort homes, to take some of their furniture and leave some in their resort residence. 4
Officer Thompson testified that the rear door of the house opened into a rear bedroom and that upon entering and finding no one in the room, he checked the closet wherein people might be hiding. Finding no one, he then entered another rear bedroom, and finding no one there, he looked into the closet of that room, which was about six feet across and five and one-half feet high, had sliding doors and could, in the officer's opinion, hide three or four persons. On a shelf directly at eye level, Officer Thompson observed a little plastic 'Baggie' containing a green, leafy vegetable material that, in his opinion based on his past experience, was marijuana. He also observed some clothing hanging in the closet. Officer Thompson then left the bedroom, taking the contraband with him. He next looked into a 'linen type closet' that was two and a half to three feet wide and ran all the way from the floor to the ceiling. It had two sets of double doors. It was Officer Thompson's opinion that the bottom portion was big enough for a person to get into if he were crouched down. He opened the doors to the bottom portion, and, on the bottom shelf four or five inches from the floor he saw a cardboard box which, in turn, contained a shoe box. The shoe box was sitting on top of a stack of papers and was positioned at an angle so that he could see its content. In the shoe box he saw another 'Baggie' which was wrapped in red paper that had been torn open. The officer could see that the 'Baggie' was quite full and that it contained green, vegetable material that he identified as more marijuana. He could also see a large, brick-shaped object, dark gray or black in color, that appeared to be 'sort of a porous, pumice effect that was compressed together.' From its appearance and from its strong, distinct smell upon his opening the 'Baggie' Officer Thompson believed the substance to be hashish. Officer Thompson took the cardboard box containing the shoe box and the contraband into one of the bedrooms he had previously been in and set it down in the middle of the floor. He observed on the floor some papers, loosely scattered around, including a 'bill of sale for the house and offer for sale' which had petitioner's name on it. Officer Thompson left the bill of sale on the floor where he found it.
About this time, the officer who had originally been stationed at the rear door returned, and Officer Thompson and Sergeant Petersen checked the bathroom and a third bedroom and its closet, still looking for persons in hiding. Officer Thompson testified that the closet in the third bedroom 'was about the last place there would be anybody hiding.' Officer Thompson then telephoned the station and requested that Officer Epstein come to the house.
Officer Epstein, assigned to the narcotics detail, testified that he came to the house along with Investigator Spears in response to Officer Thompson's call. Upon entering the back door of the house, the two officers were met by Officer Thompson and Sergeant Petersen. Officer Epstein first examined the contraband found by Officer Thompson. He confirmed Officer Thompson's identification of the contraband as marijuana and hashish and stated his opinion, based on his experience, that the quantities thereof indicated that it was...
To continue reading
Request your trial