Lorenzana v. Superior Court

Decision Date20 June 1973
Citation511 P.2d 33,108 Cal.Rptr. 585,9 Cal.3d 626
CourtCalifornia Supreme Court
Parties, 511 P.2d 33 Richard Carl LORENZANA, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. Humberto SALAS, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 29989, 29990.

Richard S. Buckley, Public Defender, James L. McCormick, Michael Rothschild and Harold E. Shabo, Deputy Public Defenders, and Walter C. Culpepper, Los Angeles, for petitioners.

No appearance for respondent.

Joseph P. Busch, Dist. Atty., Harry Wood and Harry B. Sondheim, Deputy Dist. Attys., for real party in interest.

TOBRINER, Justice.

The crucial question we face here is whether a citizen may properly be subjected to the peering of the policeman who, without a search warrant, walks over ground to which the public has not been invited but which has been reserved for private enjoyment, stands by a window on the side of a house and peeks through a two-inch gap between the drawn window shade and the sill, and thus manages to observe the conduct of those within the residence. We conclude that the questioned police procedure too closely resembles the process of the police state, too dangerously intrudes upon the individual's reasonable expectancy of privacy, and thus too clearly transgresses constitutional principle; the prosecution cannot introduce into evidence, and the courts cannot be tainted with, that which the intrusion yields.

We shall point out that the cases recognize the distinction between the observations of a police officer who has positioned himself upon property which has been opened to public common use, and the observations of an officer who ventures onto property which has not been so committed. A sidewalk, pathway, common entrance or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to obserations made there. The officer who walks upon such property so used by the public does not wear a blindfold; the property owner must reasonably expect him to observe all that is visible. In substance the owner has invited the public and the officer to look and to see. But, by the same reasoning, the officer who intrudes upon property not so open to the public enjoys no such prerogatives.

By separate petitions petitioners here seek writs of mandate to set aside orders of the Los Angeles Superior Court denying their motions to suppress evidence obtained as a result of police observation into petitioner Lorenzana's home. Because the petitions involve identical facts and issues of law, we consolidated them for purposes of this review. We begin with a statement of the uncontested facts of the case as drawn from the testimony of police officers adduced at the preliminary examination and the suppression hearing held pursuant to Penal Code section 1538.5.

On May 27, 1971, Sergeant Charles Myers of the Narcotics Division of the Los Angeles Police Department received information from a 'confidential reliable informant' 1 that an individual named Richard was 'dealing' in heroin at 368 North Avenue 53. The informant told Sergeant Myers that he had gone to the address with another person, and that the person had 'scored,' or bought heroin. 2 According to the informant, upon receiving an order for heroin, Richard would go somewhere else and pick it up. At approximately 10 p.m. on the day they received this information, the police proceeded to the address which the informant had given them. The officers neither attempted to, nor did, procure a search or arrest warrant.

The dwelling at the designated address, a single family house, was set back about 70 feet from the sidewalk. The front door to this dwelling did not face the public street on the north, but instead was on the west side of the building. A rear door opened on the south side. Officer Myers testified that access to the house was from the west. There were no doors or defined pathways on the east side of the house, and a strip of land covered with grass and dirt approximately six to ten feet in width separated the east side of the dwelling from an adjacent apartment driveway.

Upon arriving at the address, Sergeant Myers circled behind the apartment, walked down the adjacent driveway, crossed onto the strip of petitioner Lorenzana's property, and positioned himself at a window on the east side of the house. The window had been fully closed. The window glass was intact. The window shade had been drawn, but a gap of about two inches had been left between the window sill and the bottom of the shade. Gaps of about one inch or so had been left on each side of the shade, but a thin curtain also hung down on the sides of the window.

Sergeant Myers testified that he had trespassed onto petitioner Lorenzana's property because he could not see into the house from the adjacent driveway or from the street. In fact, he could not see into the dwelling until he was within five or six inches of the window. The officer further testified that he knew that the property onto which he trespassed was not a common-use area but belonged to the dwelling at 368 North Avenue 53. Sergeant Myers did not have permission to go upon the property.

Myers placed his face within an inch of the window on the east side of the house and stood there for approximately 15 minutes. During this time he overheard a telephone conversation in which a man inside said, 'If you want to cop, you can come over. I will have to pick the stuff up,' and, 'Someone's coming over that I am going to pick up for now, and I'll get yours when I return.' Three or four minutes later, Sergeant Myers observed, through the aperture at the bottom of the window, a man go to the front door and talk with someone in the doorway. A moment later both men left the location, and Myers notified officers in the field to follow them.

The officers followed the man who had been in the house, later identified as petitioner Lorenzana, to an apartment. They observed him knock on the door, and petitioner Salas answered. Although the officers did not see any objects actually transferred, they thought that Lorenzana and Salas might have exchanged something.

Thirty minutes after he had left the house at 368 North Avenue 53, petitioner Lorenzana returned. Police resumed their surveillance at the window on the east side of the house, and observed petitioner Lorenzana empty the powdery contents of a tied-off rubber balloon onto a newspaper. Concluding that the substance was heroin, the officers went to the door, announcing, 'You are under arrest for narcotics violations. Open the door.' Hearing running movements, the officers reasoned that evidence was being destroyed; they forced entry into the house, arresting petitioner Lorenzana and two others, and recovering a small amount of heroin.

Sergeant Myers radioed the news of the arrests and recovery of heroin to officers waiting at petitioner Salas' apartment. Upon receiving the call, the officers went to Salas' apartment, announced 'Police officers. You're under arrest for narcotics violations,' and hearing movements within, they forced their way into the apartment. The police then arrested defendant Salas and recovered nine balloons of heroin which he had attempted to throw to the floor upon their entry. The officers also recovered a can of milk sugar, often used for 'cutting' heroin before sale. Because of the amount of heroin recovered, as well as the can of milk sugar, the police concluded that petitioner Salas possessed the narcotics for sale. Contending that the search at Lorenzana's house violated constitutional precepts and that the evidence described above was obtained as a fruit of that unlawful search, petitioners seek suppression of the evidence seized in both of their homes.

With this background in view we proceed to a brief survey of the California cases. We shall show that in evaluating the reasonableness of searches under the state and federal Constitutions (Cal.Const., art. 1, § 19; U.S.Const., 4th Amend.), the decisions differentiate between the police officer, who, acting without a warrant, observes activities in a private residence while standing upon a part of the surrounding property that has been opened, expressly or impliedly, to public use, and the officer who, in such circumstances, stands upon property not so committed.

In People v. Willard (1965) 238 Cal.App.2d 292, 47 Cal.Rptr. 734, police officers without a warrant went upon the defendant's property, and from the steps leading up to a side door of defendant's house, through a screen door, observed illegal activity. In concluding that 'there was no substantial, if any, degree of privacy to the area' (Id. at p. 307, 47 Cal.Rptr. at p. 744), the court pointed out that the door appeared to have been a normal means of access to and egress from the house and that the sidewalk from the property line to this door was used by persons other than the occupants of the house; while the officer stood on the sidewalk, which enjoyed public use, he could constitutionally observe illegal activity in plain view inside the house.

People v. Berutko (1969) 71 Cal.2d 84, 77 Cal.Rptr. 217, 453 P.2d 721 involved a situation in which the officers went to a common passageway bordering defendant's apartment, and from there observed contraband through an aperture in the curtains which the defendant had drawn. Noting that the case involved 'observation by an officer from a place where he had a right to be and through an opening which defendant had provided through his arrangement of drapes covering his window' (Id. at p. 91, 77 Cal.Rptr. at p. 221, 453 P.2d at p. 725 (emphasis added and deleted)), the court held that the police had not violated constitutional limits by observations which they drew from an area in which they were ...

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