Kinsey v. Superior Court In and For Alameda County

• Decision Date: 17 June 1968
• Citation: 69 Cal.Rptr. 556,263 Cal.App.2d 188
• Court: California Court of Appeals Court of Appeals
• Parties: Theodore KINSEY, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF ALAMEDA, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 25241.

Page 556

69 Cal.Rptr. 556

263 Cal.App.2d 188

Theodore KINSEY, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF ALAMEDA, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 25241.

Court of Appeal, First District, Division 4, California.

June 17, 1968.

Hearing Denied Aug. 14, 1968.

James H. Newhouse, Asst. Public Defender, Oakland, for appellant.

Thomas C. Lynch, Atty. Gen., by Michael J. Kelly, Deputy Atty. Gen., San Francisco, for respondent.

RATTIGAN, Associate Justice.

Pursuant to subdivision (i) of Penal Code section 1538.5, petitioner seeks review of the validity of a seizure whereby a certain quantity of heroin was obtained by the police. The heroin, which was admitted in evidence at petitioner's preliminary examination upon a charge of its possession (Health & Saf.Code, § 11500), was seized when a police officer forcibly entered petitioner's hotel room. Petitioner challenges the seizure--and unsuccessfully moved below to suppress the evidence--upon the ground that the officer, although in possession of a warrant which authorized a search of the room, did not comply with the notice requirements of Penal Code, section 1531. ¹

We issued the alternative writ in order to examine petitioner's contentions in the light of the Supreme Court's recent decision in People v. Gastelo (1967) 67 A.C. 596, 63 Cal.Rptr. 10, 432 P.2d 706. Having done so, we conclude that the circumstances hereinafter discussed were such as to excuse the officer from complying with section 1531; that the ensuing entry and seizure were therefore reasonable; and that the petition must be denied.

The search warrant was issued by a municipal court on October 5, upon an affidavit executed on the same date by Sergeant Hilliard of the Oakland Police Department. The affidavit recited Hilliard's position and experience, plus facts which established the reliability of a confidential informant described as 'X.' According to the affidavit, 'X' informed Hilliard on October 2 that he had just been present in petitioner's hotel room on that day; that he had observed eight $20 balloons of heroin there; and that petitioner had told 'X' that he could purchase such balloons at any time by contacting petitioner at the room. The affidavit also identified the hotel room as petitioner's and its location as room 306 at 2908 San Pablo Avenue. The warrant which thereupon issued authorized a search of petitioner's person and the room.

At a daylight hour ('10:00, 10:30') on the morning of October 5, Sergeant Hilliard and several other police officers went to the San Pablo Avenue address (a hotel) to serve the warrant. Officer Romero and some of the other officers went to the corridor outside room 306. Romero, the justissued search warrant in his possession, 'listened' at the closed door for about three minutes. He could hear 'a male and a female talking' in the room. Then a hotel maid came along in the corridor where Romero was standing, knocked on the door, and opened it with a key. Officer Romero had given the maid no instructions; there was no conversation between them. No one connected with the hotel had been instructed to open the door, and the maid's action was upon her own initiative.

Officer Romero could see that the door was 'held closed by a night chain' after the maid opened it, but he could not see into the room. The maid said, 'There's somebody out here to see you.' A male voice from inside the room said 'Who?' The maid replied, 'Some men.' After the maid's reply (according to Romero's unchallenged testimony at the hearing on the motion to suppress), nothing happened until at least two--and possibly five--minutes had elapsed. Then the officer heard a 'rustling, shuffling' noise in the room. Concluding that narcotics were being disposed of inside, he said 'Police' and kicked the chained door in.

Petitioner, dressed in underclothes only, was standing by the bed in room 306; a nude woman was in the bed. Officer Romero served the search warrant upon petitioner. A search of the room turned up the heroin in question.

Noncompliance with the notice requirements of Penal Code, section 1531, and the similar requirements of section 844 relative to execution of an arrest warrant, may be excused when the officer acts on a reasonable and good faith belief that compliance would increase his peril, frustrate an arrest, or permit the destruction of evidence. (People v. Rosales (1968) 68 A.C. 307, 313, 66 Cal.Rptr. 1, 437 P.2d 489; People v. Gastelo, supra, 67 A.C. 596 at pp. 598, 599, 63 Cal.Rptr. 10, 432 P.2d 706, and cases cited.) The officer's belief cannot be justified by a general assumption that certain classes of persons are more likely than others to resist arrest, attempt to escape, or destroy evidence; it must be based upon the facts of the particular case. (People v. Rosales, supra; People v. Gastelo, ...