Lohman v. Superior Court

• Decision Date: 19 May 1977
• Citation: 138 Cal.Rptr. 403,69 Cal.App.3d 894
• Parties: Perry Arnold LOHMAN, Petitioner, v. The SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 16514.
• Court: California Court of Appeals

Page 403

138 Cal.Rptr. 403

69 Cal.App.3d 894

Perry Arnold LOHMAN, Petitioner, v.The SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, RespondentThe PEOPLE of the State of California, Real Party in Interest.

Civ. 16514.

Court of Appeal, Fourth District, Division 1, California.

May 19, 1977.

Goodwin & Grindle by Daniel W. Grindle, San Diego, for petitioner.

Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman and Ronald S. Prager, Deputy Dist. Attys., for real party in interest.

No appearance for respondent.

GERALD BROWN, Presiding Justice.

Perry Arnold Lohman is charged with possessing a sawed-off shotgun (Pen.Code § 12020, subd. (a)) and possessing controlled substances (Health & Saf.Code § 11377).He seeks a writ of mandate to compel suppression of the evidence which supports these charges, claiming such evidence was obtained by an illegal search and seizure.

The principal question is whether a warrant authorizing a search Of a person permits officers to search For the person at another person's residence not described in the warrant, where they reasonably believe they may find him.

In connection with a homicide investigation, police officers obtained a search warrant authorizing search of (1)'the premises known as Baron's Earth Ranch,'(2)'the person of JOHN HELDER ARNETT, JR.,' and (3)'the person of CHARLES MICHAEL LOHMAN' for enumerated objects.The places and persons to be searched, as well as the objects to be seized, were particularly described.

Possessed of this warrant, at 7 a.m. on September 25, 1976, officers went to the residence of Perry Lohman, Charles Lohman's brother.This was a small house located next to, but not on, Baron's Earth Ranch.The trial court helpfully made the following findings of fact regarding the execution of the warrant:

'Detective Apodaca and Deputy Wood, with guns drawn, approached the defendant's residence and Apodaca knocked on the door and identified himself as a police officer.The defendant answered the door and Detective Apodaca stated that he was looking for Charles Lohman, the defendant's brother and that he had a warrant.Apodaca who was in plain clothes had his badge in his hand.Wood was in uniform and carrying a shotgun and was standing a few feet away.

'Apodaca asked if he could come in and the defendant said 'yes' and stepped back.The officer entered the 10 14 foot house.Apodaca looked behind a chair and into a closet.Wood looked under a bed and into the closet.Wood observed a shotgun and picked it up to see if it was loaded.He noted the serial number.Both officers observed in plain sight marijuana in the ashtray and roach clips and pipes in plain sight on the wall.The officers were inside the house for 3 to 5 minutes and did not open any drawers.Their search was confined only to ascertaining the presence of Charles Lohman.Charles Lohman was not found.The clothes in the closet were parted when the officer looked to see if the suspect was present.The shotgun was in plain sight.

'The officers left.Deputy Wood obtained a (telephonic) search warrant for the defendant's premises.The warrant authorized a search for the shotgun and 'narcotics and drugs included but not limited to MARIJ. in manicured form . . .'The warrant was executed and the shotgun and narcotics seized.'

Although the shotgun and narcotics were seized pursuant to a second warrant, that warrant clearly issued upon information gathered in the initial search.Since a search warrant obtained upon information acquired by an illegal search is itself invalid (People v. Roberts, 47 Cal.2d 374, 377, 303 P.2d 721;Raymond v. Superior Court, 19 Cal.App.3d 321, 326, 96 Cal.Rptr. 678), the validity of the latter search depends upon the validity of the former (Burke v. Superior Court, 39 Cal.App.3d 28, 31, 113 Cal.Rptr. 801).

It should also be noted the trial court expressly found Perry Lohman did not freely and voluntarily consent to the entry by the officers.Only the original warrant could justify the search for Charles Lohman.

At the suppression hearing, the People argued in support of the validity of the search: (1) Since it is impossible to search a person without first taking him into custody, the search warrant impliedly authorized an arrest of Charles Lohman as a step in the authorized search (relying uponPeople v. Aguilar, 240 Cal.App.2d 502, 505, 49 Cal.Rptr. 584, andPeople v. Wilson, 256 Cal.App.2d 411, 418, 64 Cal.Rptr. 172); (2) where police have an arrest warrant, they may search for the arrestee wherever they have reason to believe they may find him (relying uponPeople v. Bennett, 60 Cal.App.3d 112, 119, 131 Cal.Rptr. 305); (3) the officers had a reasonable basis to believe that Charles Lohman might be at Perry Lohman's residence; (4) therefore, entry into Perry's residence to search for Charles was justified; and the shotgun and narcotics, which were observed in plain sight from a place where the officers had a lawful right to be, should not be suppressed.

The trial court adopted this reasoning in denying the suppression motion.

Perry here attacks the People's first and third premises, arguing (1)the trial court erred in applying the Aguilar and Wilson cases to these facts, and (2) there is insufficient evidence to support the trial court's finding of fact that there was a reasonable basis for the officers to believe that Charles might be at his residence.

The latter contention is without merit.Detective Apodaca testified (1)he knew Charles had given Perry's address as his own on previous contacts with the police, and (2) another officer told him 'Charles Lohman was known to stay with his brother Perry' and 'Perry Lohman had stated that his brother Charles had been staying at his house' three days before the execution (two days before the issuance) of the warrant.This testimony supports the trial court's finding there was a reasonable basis for the officers to believe Charles might be at his brother's residence.We turn, therefore, to the People's thesis.

The Fourth Amendment to the federal Constitution provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Similarly, section 13 of article I of our state Constitution requires:

'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.'

Although these provisions speak in terms of 'the place to be searched' and 'the persons and (or) things to be seized,'they permit the issuance of a warrant authorizing search of a person, so long as the person to be searched is particularly described (People v. Tenney, 25 Cal.App.3d 16, 22, 101 Cal.Rptr. 419, disapproved on other grounds inPeople v. Leib, 16 Cal.3d 869, 875, 129 Cal.Rptr. 433, 548 P.2d 1105;seeDow v. State, 207 Md. 80, 113 A.2d 423, 425;People v. Bracamonte, 15 Cal.3d 394, 400--401, 124 Cal.Rptr. 528, 540 P.2d 624;Pen.Code § 1525('A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.'))

The warrant before us conforms to constitutional standards of specificity.It would support a search of the person of Charles Lohman for the property described, providing the search was not excessive in scope (People v. Bracamonte, supra, 15 Cal.3d 394, 124 Cal.Rptr. 528, 540 P.2d 624).

However, the search before us was not of 'the person of Charles Lohman' or any other person or place particularly described in the warrant, but rather of a Different place, the residence of Perry Lohman.Moreover, the objective of the search was not to find and seize any of the things particularly described in the warrant, but rather to find Charles, who was, under the terms of the warrant, a 'place' to be searched, rather than a 'thing' to be seized.Even though the officers searched a place (Perry's residence) not described in the warrant for an object (the person of Charles) not described as one of the things to be seized, the People maintain the search was authorized by the warrant.

The People advance the proposition that a warrant authorizing a search of a person is in effect an arrest warrant, since execution necessarily includes taking the person to be searched into custody.However, cases relied upon by the People do not support the breadth of this contention.

In People v. Aguilar, supra, 240 Cal.App.2d 502, 49 Cal.Rptr. 584, a magistrate 'issued a warrant for the search of certain described premises, a described automobile, and of defendant's person.'(Id. at 504, 49 Cal.Rptr. at 585.)As the defendant was about to enter his automobile (the same vehicle described in the warrant), he was arrested and searched.The defendant contended 'the arrest was not justified by the warrant, since the warrant authorized only search and not arrest, and that there was insufficient probable cause to justify an arrest without warrant.'(Id. at 505, 49 Cal.Rptr. at 585.)

The Court of Appeal found no error in the manner of arrest, stating:

'The warrant did authorize a search of defendant's person.Since it is an obvious impossibility to search the person of an individual without first taking him into custody, the warrant impliedly authorized an arrest as a step in the authorized search.And it is the product of the search which was used against defendant and of which he complains.The search being lawful, the evidence thereby obtained was admissible.'(Id. at 505, 49 Cal.Rptr. at 585, emphasis added.)

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