Horack v. Superior Court

• Decision Date: 28 December 1970
• Citation: 91 Cal.Rptr. 569,3 Cal.3d 720,478 P.2d 1
• Court: California Supreme Court
• Parties: , 478 P.2d 1 David Michael HORACK, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 29767.

Page 569

91 Cal.Rptr. 569

3 Cal.3d 720, 478 P.2d 1

David Michael HORACK, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 29767.

Supreme Court of California In Bank.

Dec. 28, 1970.

Herbert M. Porter, Los Angeles, for petitioner.

Cecil Hicks, Dist. Atty., Michael R. Capizzi and Oretta D. Sears, Deputy Dist. Attys., for respondent and for real party in interest.

MOSK, Justice.

This is a petition for a writ of mandate after the respondent superior court denied petitioner's pretrial motion pursuant to Penal Code section 1538.5 to suppress evidence seized in a search of a residence. Petitioner is charged with the unlawful possession of marijuana.

On Saturday, June 28, 1969, Officer Thompson of the Newport Beach Police Department, while on patrol duty in a police vehicle, received a radio message from the dispatcher informing him that a Mrs. Hamplin of 521 Riverside, Newport Beach, had telephoned to report that she had seen two 'hippie-type' individuals with sleeping bags enter what she believed to be the vacant residence located next door at 519 Riverside. Officer Thompson proceeded to Mrs. Hamplin's address, but his knock on the door there brought no response. It was later established that she had driven away from her home as Officer Thompson approached.

Having been unable to contact the informant, or to ascertain that she was reliable and had in fact telephoned the police station, Officer Thompson next walked to the residence at 519 Riverside and, stationing another officer at the rear, went to the front door, knocked on the door and identified himself by announcing 'Police Officer.' Standing in front of the door, he could see into the living room of the house through a window in the door: the room was carpeted, but otherwise contained no furnishings with the exception of a large stereo speaker enclosure and stereo receiver. The receiver was turned on and he heard music playing 'quite loud.' There was no response to the knock or announcement and he heard no sounds from inside except the music. He tried the front door and found it locked.

Officer Thompson proceeded to the rear of the house at which time he was joined by Sergeant Petersen. The other officer who had been stationed at the back door then left. The two remaining officers approached the back door and knocked. Again, no sound was heard from the inside. They tried the door and found it unlocked. Officer Thompson opened the door and, before entering, again announced 'Police Officer.' He did not explain the purpose for which admittance was desired. Still receiving no response, both officers entered the house with their guns drawn. The entry was made at approximately 1 p.m. The officers proceeded to conduct a room-by-room and closet-by-closet search for the persons who reportedly had entered the house.

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.' Although he had heard no response to his knocking on the door or his announcements, he entered 'Looking for individuals hiding; figured that they probably heard me and were hiding if they were in there.' He also stated that he thought 'there might be possibly a burglary being committed inside the residence,' although he candidly conceded on Voir dire that he saw absolutely nothing to indicate that a burglary was in progress. He further admitted that he had never heard of a vagrant going into a house to sleep with his own expensive stereo equipment, the value of which he estimated to be approximately $300, nor had he ever heard of any persons leaving valuable stereo equipment behind when they moved out of a house. Finally, the officer indicated that the appellation 'hippie-type' had no special significance to him and that he did not know what Mrs. Hamplin meant when she used it.

The rear door of the house opened into a rear bedroom and, finding no one in the room, Officer Thompson checked the closet. The closet was also empty, and Thompson proceeded to another rear bedroom in search of the intruders. Finding no one, he then looked into the closet of that room. Although this closet, too, was devoid of human occupation, Officer Thompson made an important discovery: on the shelf of the closet, at eye level, he saw a little plastic 'Baggie' containing marijuana. He also observed some clothing hanging in the closet. Taking the contraband with him, Officer Thompson next searched a linen closet that was two and one-half to three feet wide and ran from the floor to the ceiling. It had two sets of double doors, and Officer Thompson was of the opinion that the bottom portion of the closet was big enough for a person to get into if he were crouched down; therefore, he opened the doors to the bottom portion. On the bottom shelf, just above the floor, he saw a cardboard box which contained a smaller shoe box. The shoe box was on top of a stack of papers and, because it was positioned at an angle, he could see its contents. In the shoe box he saw another 'Baggie' which was found to contain more marijuana and a bricklike piece of hashish.

Officer Thompson took the cardboard box into one of the rear bedrooms he had already searched and placed it on the floor. At this time, he saw some papers scattered on the floor, including a 'bill of sale for the house and offer for sale' which had petitioner's name on it. He left the bill of sale on the floor and, with Sergeant Petersen, checked the bathroom and a third bedroom and its closet, still seeking the elusive intruders. Having satisfied himself that no one was in the house, Officer Thompson then telephoned the station and requested that Officer Epstein of narcotics detail come to the house.

Upon his arrival, Officer Epstein examined the contraband already discovered, confirmed Thompson's identification of the substances found, and proceeded to a thorough search of everything in the house not previously searched by Officer Thompson. In clothing hanging in the closet of one of the rear bedrooms, Epstein found a small 'Baggie' of hashish and a passport, an international driver's permit, international vaccination certificate, and Hertz car rental document, all bearing petitioner's name. In the third bedroom, on the floor, he found a leather pouch containing a pipe and a small piece of hashish. He also found various documents containing the name of Michael Turkington and, apparently, $12,000 in cash. The cash was turned over to the State Board of Equalization and is not in issue on this petition. In the bedroom farthest to the rear, Officer Epstein found documents in the name of M. R. McCurdy on the floor and a small piece of hashish in a pair of boots.

At no time during the various searches or during a brief surveillance period which followed did any one of the suspects appear; nor did the police find any sleeping bags in the house. Petitioner was subsequently arrested in Laguna Beach, but the details of his arrest are not part of the record presently before us.

The sole issue is whether the police entry and subsequent searches, which turned up the marijuana and hashish sought to be suppressed, were in violation of the Fourth Amendment protection against unreasonable searches and seizures. Petitioner made out a prima facie case that the search and seizure were unlawful when he established that they were made without a warrant; the burden then rested on the prosecution to show proper justification. (People v. Haven (1963) 59 Cal.2d 713, 717, 31 Cal.Rptr. 47, 381 P.2d 927.)

With respect to the search conducted by Officer Thompson and the evidence he discovered, the People contend that the entry and search for persons believed to be in hiding were authorized by the general duty of the police to investigate, detect, and prevent crime and to protect life and property. Under the circumstances of this case we cannot agree.

The doctrine of necessity relied on by the People is applied in cases such as People v. Roberts (1956) 47 Cal.2d 374, 303 P.2d 721, People v. Clark (1968) 262 Cal.App.2d 471, 68 Cal.Rptr. 713, and People v. Gonzales (1960) 182 Cal.App.2d 276, 5 Cal.Rptr. 920, involving emergency circumstances which are simply not present in the facts of the instant case. Thus, in People v. Roberts, we stated that '(n)ecessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose.' (47 Cal.2d at p. 377, 303 P.2d at p. 723.) The 'necessity' in Roberts was that police heard a moaning sound as if from a person in distress and entered defendant's apartment to render aid; the evidence sought to be suppressed was discovered in plain sight after the valid emergency entry. Similarly, in Clark, police entered the defendant's apartment because circumstances apparent to the officers indicated the 'probability that a woman within the apartment was the unwilling victim of some criminal act.' (262 Cal.App.2d 471, 476, 68 Cal.Rptr. 713, 717.) And in Gonzales, a police officer discovered marijuana in a search for identification in the clothing of a man found seriously injured with an abdominal stabbing wound.

In the case at bench, there was no comparable emergency situation. The only property to be protected was the bare carpeted house containing a stereo system, and the police officers saw nothing to indicate any immediate threat of damage or destruction. Indeed, Officer Thompson candidly admitted that he saw nothing to indicate that a burglary was in progress or had been committed. And even the most vivid imagination would be unable to contrive imminent danger to human life in the situation apparent to Officer Thompson and Sergeant Petersen prior to their entry. Therefore, no justification for the entry and search may be found in the doctrine of...