Parsley v. Superior Court

• Decision Date: 28 August 1973
• Court: California Supreme Court
• Parties: , 513 P.2d 611 Arthur Wendell PARSLEY et al., Petitioners, v. The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 30104.

Page 563

109 Cal.Rptr. 563

9 Cal.3d 934, 513 P.2d 611

Arthur Wendell PARSLEY et al., Petitioners, v. The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 30104.

Supreme Court of California In Bank.

Aug. 28, 1973.

Rehearing Denied Oct. 10, 1973.

Opinion, 104 Cal.Rptr. 643, vacated.

Herbert M. Porter, Laguna Beach, for petitioners.

No appearance for respondent.

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

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

MOSK, Justice.

Defendants, charged with violation of three sections of the Health and Safety Code, moved unsuccessfully to set aside the information pursuant to Penal Code section 995, ¹ and failed to obtain a writ of prohibition in the Court of Appeal. We granted defendants' petition for hearing in order to decide whether a magistrate who issues a search warrant may relieve police officers of the statutory duty to give notice of their authority and purpose before entering a house to serve a warrant.

On March 17, 1972, officers of the Riverside Police Department executed a search warrant for a particular dwelling house. The warrant issued by the magistrate specifically provided that the officers 'need not comply with Penal Code Section 1531.' Upon arrival at the location, one of the officers crawled through a bedroom window which had no glass or screen but over which a cloth had been tied down to exclude both light and the elements. ² The officer, before entering, gave no notice of his authority or purpose. ³ The subsequent search of the dwelling yielded various articles which appeared to the officers to be narcotics and which defendants now concede to be contraband. Defendants, who were occupants of the building, were both arrested.

Penal Code section 1531 provides: 'The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.' An equivalent provision, Penal Code section 844, governs entry without a warrant to effect an arrest. (See People v. Gastelo (1967) 67 Cal.2d 586, 588, 63 Cal.Rptr. 10, 432 P.2d 706.) The negative inference flowing from these provisions serves to bar most unannounced entries and to render inadmissible evidence seized pursuant thereto. (Greven v. Superior Court (1969) 71 Cal.2d 287, 295, 78 Cal.Rptr. 504, 455 P.2d 432; People v. Maddox (1956) 46 Cal.2d 301, 305--307, 294 P.2d 6.) We have held, however, that failure to comply with sections 1531 and 844 does not compel application of the exclusionary rule 'if the specific facts known to the officer before his entry are sufficient to support his good faith belief that compliance will increase his peril, frustrate the arrest, or permit the destruction of evidence.' (People v. Tribble (1971) 4 Cal.3d 826, 833, 94 Cal.Rptr. 613, 617, 484 P.2d 589, 593; People v. Gastelo (1967) supra, 67 Cal.2d 586, 587--588, 63 Cal.Rptr. 10, 432 P.2d 706; People v. Maddox (1956) supra, 46 Cal.2d 301, 306, 294 P.2d 6.)

We hold the superior court erred in concluding advance judicial approval may excuse compliance with statutory announcement requirements.

Sections 1531 and 844 are striking in that the Legislature failed to include in either statute any exceptions to the rule that an officer must provide notice of his authority and purpose and seek consent to admittance before resorting to forcible entry. We have construed the statutes to contain implicit exceptions for articulated exigent circumstances on the ground that 'since the demand and explanation requirements . . . are a codification of the common law, they may reasonably be interpreted as limited by the common law rules . . ..' (People v. Maddox (1956) supra, 46 Cal.2d 301, 306, 294 P.2d 6, 9.)

These common law exceptions pertain only to emergency situations existing At the time of entry. There appears to be no common law doctrine empowering courts to authorize in advance noncompliance with announcement requirements. Thus, the ground which supports excusal of compliance after the fact of entry cannot be extended to validate prior judicial authorization. This consideration appears to underlie our provision in Maddox that the existence of exigent circumstances must be determined '(w)ithout the benefit of hindsight and ordinarily on the spur of the moment, (and) The officer must decide these questions in the first instance.' (Italics added.) (46 Cal.2d at p. 307, 294 P.2d at p. 9.)

Further, evidence that the Legislature intended to preclude warrants authorizing in advance noncompliance with announcement requirements appears from a comparison of section 1531 with section 1533, which concerns nighttime entry. Section 1533 provides: 'Upon a showing of good cause, the magistrate may, in his discretion, insert a direction in a search warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant shall be served only between the hours of 7 o'clock a.m. and 10 o'clock p.m.' The fact that this section expressly provides for prior judicial authorization while section 1531 fails to do so clearly implies, under the doctrine of Inclusio unius est exclusio alterius, that the Legislature intended not to permit warrants to excuse unannounced entry.

Inasmuch as the Legislature has provided no authority for inserting directions in warrants excusing compliance with statutory announcement requirements and has in fact impliedly barred such a procedure, the courts are without power to institute a practice of issuing such warrants unless prior judicial authorization of noncompliance is constitutionally mandated. We conclude that it is not.

While the requirements of announcement before entry have been held to be compelled by the guarantees against search and seizure contained in the Fourth Amendment (Ker v. State of California (1963) 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; People v. Gastelo (1967) supra, 67 Cal.2d 586, 588--589, 63 Cal.Rptr. 10, 432 P.2d 706), police officers have no constitutional duty to obtain prior judicial authorization to enter without notice. The proposition that searches without a warrant are unreasonable per se except in a few narrowly defined circumstances does not apply to the issue of unannounced entry. The reason for this distinction is that information providing probable cause for the issuance of a search warrant is of a different nature and source than information justifying unannounced entry. While a search warrant must necessarily rest upon previously obtained information, unannounced entry is excused only on the basis of exigent circumstances existing at the time an officer approaches a site to make an arrest or execute a warrant. Facts existing at the time of obtaining a warrant may no longer exist at the time of entry. Such an emergency, therefore, can be judged only in light of circumstances of which the officer is aware at the latter moment. Previously obtained information may at that time be taken into account in determining the necessity of dispensing with ordinary announcements (People v. Dumas (1973) Cal. 109 Cal.Rptr. 304, 512 P.2d 1208, but a more significant factor in this decision is perception and knowledge the officer acquires on the scene immediately prior to effecting entry. For this reason, earlier judicial authorization would be largely inappropriate in the context of unannounced entry and, thus, clearly cannot be considered a constitutional requirement.

Statistical data submitted to us indicate the increased use of warrants providing advance excusal of compliance with statutory announcement requirements. For the year April 1, 1972, to March 31, 1973, 12 percent of all search warrants issued in Los Angeles County contained such a provision, a figure that suggests requests are not limited to true prospective emergency circumstances. Were we to approve this practice, there would be an understandable temptation for agencies to use pre-prepared request forms and to seek exemption in most cases. This would, for all practical purposes, eliminate sections 1531 and 844 from the statute books and judicially legislate in their place a de facto no-knock rule.

We conclude, for all the foregoing reasons, that the magistrate was without power to give prior authorization for violation of section 1531 and that the People may not rely on such advance excusal to justify the officers' failure to comply with that section in the present case. As discussed above, the key to permissible unannounced entry is the knowledge of exigent circumstances possessed by police officers at the time of entry. Thus, from the viewpoint of a court reviewing justification for an unannounced entry after the fact, a warrant authorizing such action adds nothing.

At defendants' preliminary hearing the judge upheld the unannounced entry into their residence solely on the basis of the purported authority to effect such entry contained in the warrant. This was error. The People contend, however, the error was harmless in that sufficient evidence was introduced at the preliminary hearing to demonstrate that the police officers who effected the unannounced entry were in fact acting in response to what they preceived to be a demonstrable emergency.

The People introduced evidence at the preliminary hearing, including the averments contained in the warrant affidavit, that police officers had, through a confidential informant, made controlled purchases of narcotics from an individual inside defendants' residence. The informant assertedly told the officers he had seen a shotgun in the possession of this individual and that the individual was 'known to' answer the door while armed...