Parsley v. Superior Court, Riverside County

• Decision Date: 27 October 1972
• Court: California Court of Appeals Court of Appeals
• Parties: Arthur Wendell PARSLEY and Elizabeth Hale, Petitioners, v. SUPERIOR COURT, RIVERSIDE COUNTY, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 12111.

Page 643

104 Cal.Rptr. 643

28 Cal.App.3d 372

Arthur Wendell PARSLEY and Elizabeth Hale, Petitioners, v. SUPERIOR COURT, RIVERSIDE COUNTY, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 12111.

Court of Appeal, Fourth District, Division 2, California.

Oct. 27, 1972.

Hearing Granted Jan. 11, 1973.

See 109 Cal.Rptr. 563 for rehearing.

Herbert M. Porter, Laguna Beach, for petitioners.

Byron C. Morton, Dist. Atty. of Riverside County, Howard M. Dabney, Asst. Dist. Atty., and Ronald S. Smith, Deputy Dist. Atty., for real party in interest.

Joseph P. Busch, Dist. Atty., of Los Angeles County, Harry Wood, Head, Appellate Division, Los Angeles and Harry B. Sondheim and Daniel L. Bershin, Deputy Dist. Attys., amici curiae on behalf of real party in interest.

OPINION

GARDNER, Presiding Justice.

Petitioners were charged by information with possession of heroin for sale (Health & Safety Code, § 11500.5), possession of a restricted dangerous drug (Health & Safety Code, § 11910), and possession of narcotics paraphernalia (Health & Safety Code, § 11555). Petitioners' motion in superior court under Penal Code, § 995, was denied, and petitioners seek a writ of prohibition on the grounds they were not legally committed and were committed without reasonable or probable cause.

A search warrant was issued on March 15, 1972, for premises located at 6322 La Sierra Avenue, City of Riverside. Officer Waggaman's supporting affidavit for issuance of a search warrant included averments that on March 6, 1972, he conducted a 'skin search' upon a confidential informant, gave him recorded city money, and turned him over to the custody of an undercover police officer. He then observed the informant in the company of the undercover officer drive to the Riverside address. The informant was observed by the undercover officer making contact with a person known to reside in the residence. The undercover officer observed the confidential informant return to the officer's vehicle where he gave the officer a $10.00 balloon of heroin. Officer Waggaman then met with the confidential informant and undercover officer. The informant was searched and the serial number of the money used for the buy was recorded. The contents of the balloon were analyzed and determined to contain an opiate. On March 9, 1972, the same procedure was followed with the same results.

The affidavit further included a request for excusal of compliance with Penal Code, § 1531, ¹ based, in part, upon the averment that the suspect in the premises possessed a 12 gauge riot shotgun, which he kept loaded and was known to answer the door with the shotgun in his possession. The search warrant specifically excused compliance with Penal Code, § 1531, in its execution. ²

At approximately 7:50 p. m. on March 17, 1972, Officer Waggaman and a number of other officers proceeded to the residence to execute the warrant. Officer Yonkers entered through the window of the bedroom with gun drawn while Officer Waggaman came in from the front. Petitioner Parsley was then lying on the bed. A search of the premises resulted in the contraband which is the subject of the offenses charged.

Petitioners contend the issuing magistrate exceeded his jurisdiction in authorizing noncompliance with Penal Code, § 1531. The rationale of the cases involving Penal Code, § 844, are equally applicable to cases arising under Penal Code, § 1531. (People v. Gastelo, 67 Cal.2d 586, 587-588, 63 Cal.Rptr. 10, 432 P.2d 706; Kinsey v. Superior Court, 263 Cal.App.2d 188, 191, 69 Cal.Rptr. 556.) It is well settled that police officers may be excused from compliance with the 'knock-notice' requirements of Penal Code, § 1531, where they act on a reasonable and good faith belief based upon specific information that compliance would increase their peril, frustrate the arrest or permit the destruction of evidence. (People v. Rosales, 68 Cal.2d 299, 305, 66 Cal.Rptr. 1, 437 P.2d 489; People v. Hammond, 54 Cal.2d 846, 9 Cal.Rptr. 233, 357 P.2d 289; People v. Maddox, 46 Cal.2d 301, 306, 294 P.2d 6; People v. Bryant, 5 Cal.App.3d 563, 568-569, 85 Cal.Rptr. 388; Kinsey v. Superior Court, supra, 263 Cal.App.2d 188, 191, 69 Cal.Rptr. 556; People v. Scott, 259 Cal.App.2d 268, 279, 66 Cal.Rptr. 257.) While noncompliance is usually justified by facts occurring at the time the officer approaches the house or, once at the door, begins to comply with the section, (see People v. Cooper, 17 Cal.App.3d 1112, 1121, 95 Cal.Rptr. 471; People v. Peralse, 4 Cal.App.3d 773, 780, 84 Cal.Rptr. 604) a number of cases have held noncompliance proper where the officer did not comply because of information he received prior to the time he approached the location to effect his entry. (People v. Tribble, 4 Cal.3d 826, 94 Cal.Rptr. 613, 484 P.2d 589; People v. Colvin, 19 Cal.App.3d 14, 22-23, 96 Cal.Rptr. 397; People v. Gonzales, 14 Cal.App.3d 881, 884-886, 92 Cal.Rptr. 660; People v. Stewart, 11 Cal.App.3d 242, 245-247, 89 Cal.Rptr. 707 [disapproved as to another point in People v. Beagle, 6 Cal.3d 441, 451-452, 99 Cal.Rptr. 313, 492 P.2d 1]; People v. Myers, 8 Cal.App.3d 268, 271-273, 87 Cal.Rptr. 246; People v. Kahre, 6 Cal.App.3d 680, 683-684, 86 Cal.Rptr. 291; People v. Bryant, supra, 5 Cal.App.3d 563, 569, 85 Cal.Rptr, 388: Guerrero v. Superior Court, 2 Cal.App.3d 136, 139-141, 82 Cal.Rptr. 443; People v. Vasquez, 1 Cal.App.3d 769, 775, 777, 82 Cal.Rptr. 131; People v. Newell, 272 Cal.App.2d 638, 643, 77 Cal.Rptr. 771; People v. Robinson, 269 Cal.App.2d 789, 792-793, 75 Cal.Rptr. 395.)

In People v. Hammond, supra, 54 Cal.2d 846, 9 Cal.Rptr. 233, 357 P.2d 289, compliance with Penal Code, § 844, was excused where an informer advised the officers that '. . . defendant was in his residence preparing some heroin for sale, was then under the influence of heroin, and had a gun; . . .' The court held that with this information the officers were entitled in good faith '. . . to conclude that if they informed the defendant of their presence . . ., he . . . might attempt to obtain and use his gun.' (People v. Hammond, supra, 54 Cal.2d 846, 849, 854, 9 Cal.Rptr. 233, 235, 238, 357 P.2d 289, 291, 294.)

In People v. Bryant, supra, 5 Cal.App.3d 563, 85 Cal.Rptr. 388, compliance with Penal Code, § 844, was excused where the informer advised the officer that defendant carried a gun at all times; it was always loaded; the informer had seen the gun; and other persons in the apartment were armed. (People v. Bryant, supra, 5 Cal.App.3d 563, 566, 567, 569, 85 Cal.Rptr. 388.)

In dealing with Fourth Amendment issues it is clearly the policy of the law to prefer initial determinations made by magistrates over independent action of the police. (Aguilar v. Texas, 378 U.S. 108, 110-111, 84 S.Ct. 1509, 12 L.Ed.2d 723, 726-727.) It would seem the better rule to hold that whenever facts are known to the police in advance of obtaining a search warrant which they reasonably believe will excuse their compliance with Penal Code, § 1531, they should submit this question to the issuing magistrate for his independent determination. Such submission will help insure that the purposes and policies of Penal Code, § 1531, are carried out and give the citizen added protection from arbitrary police intrusion.

The Supreme Court of Colorado has held that the question of waiver of 'knock-notice' must be submitted to the magistrate unless the facts justifying a forced entry become known to the police subsequent to obtaining the warrant. (People v. Lujan, Colo., 484 P.2d 1238, 1241.) Here, it is urged upon this court by petitioners that the issue cannot be submitted to the magistrate.

Like Penal Code, § 844, the purposes and policies underlying Penal Code, § 1531, are: '. . . (1) the protection of the privacy of the individual in his home [citations]; (2) the protection of innocent persons who may also be present on the premises where an arrest [or search] is made [citation]; (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice [citations]; and (4) the protection of police who might be injured by a startled and fearful householder.' (Duke v. Superior Court, 1 Cal.3d 314, 321, 82 Cal.Rptr. 348, 352, 461 P.2d 628, 632.) The sudden invasion of a home without warning carries with it danger that through misunderstanding and misinterpretation officer and citizen alike may be seriously injured or even killed. (Duke v. Superior Court, supra, at pp. 320-322, 82 Cal.Rptr. 348, 461 P.2d 628.) Hence, it should not be the policy of the courts to treat lightly those cases where it is claimed that the facts justified noncompliance with Penal Code, § 1531.

However, despite the dangers involved in noncompliance, it cannot be demanded that an officer comply with the code section when to do so would place his safety in peril. (People v. Hammond, supra, 54 Cal.2d 846, 9 Cal.Rptr. 233, 357 P.2d 289; People v. Bryant, supra, 5 Cal.App.3d 563, 85 Cal.Rptr. 388.) It is our primary concern that no person be injured in the execution of a search warrant. We find the policy of submitting facts known in advance regarding Penal Code, § 1531, compliance to the magistrate praiseworthy. Such submission of facts creates an additional check on the dangers which this section and its exceptions attempt to obviate and takes advantage of the detached and neutral magistrate in coming to a decision. It creates a procedure whereby the judiciary can oversee the exceptions already judicially engrafted upon the statute and interposes between citizen and police the impartial judgment of a judicial officer so that an objective mind may weigh the manner to be used to invade a residence in order to enforce the law. Although the procedure has heretofore been unrecognized by the appellate courts of this state, we find it meritorious.

We are in agreement with the Supreme Court of Minnesota which held '. . ....