Pate v. Municipal Court

• Decision Date: 29 September 1970
• Citation: 89 Cal.Rptr. 893,11 Cal.App.3d 721
• Court: California Court of Appeals Court of Appeals
• Parties: Jessie C. PATE et al., Plaintiffs and Appellants, v. The MUNICIPAL COURT FOR the MODESTO JUDICIAL DISTRICT, etc., Defendant and Respondent. Civ. 1172.

Page 893

89 Cal.Rptr. 893

11 Cal.App.3d 721

Jessie C. PATE et al., Plaintiffs and Appellants, v. The MUNICIPAL COURT FOR the MODESTO JUDICIAL DISTRICT, etc., Defendant and Respondent.

Civ. 1172.

Court of Appeal, Fifth District, California.

Sept. 29, 1970.

Carlos J. Badger, Modesto, for plaintiffs and appellants.

Thomas C. Lynch, Atty. Gen., by Nelson P. Kempsky, and Russell L. Moore, Deputy Attys. Gen., for defendant and respondent.

OPINION

GARGANO, Associate Justice.

By complaint filed in the Municipal Court for the Modesto Judicial District, appellants were charged with knowingly having in their possession and exhibiting lewd and obscene motion pictures in violation of section 311.2 of the Penal Code, a misdemeanor. Appellants moved the court to suppress the evidence and exclude the press and public from the trial. The motions were denied. Appellants then petitioned the Superior Court of Stanislaus County for a writ of mandate to compel the municipal court to suppress the evidence and to exclude the press and public from the trial. ¹ The petition was denied. This appeal followed.

The essential facts are as follows: On May 10, 1967, Sergeant Sweeney of the Stanislaus County Sheriff's Office received a telephone call from a Merced police officer, informing him that the Merced police had received information from a reliable informant that lewd films were going to be shown that evening at the Divine Gardens Motel in Turlock; the informant had supplied the Merced police with similar information on other occasions, leading to several arrests. A short time later, Sweeney and Sergeant Curtis, also of the Stanislaus County Sheriff's Office, met several Merced police officers at the Turlock Police Station and were told that the suspects were appellants Jessie C. Pate and Edward Carl Woodard. Sweeney and Curtis then proceeded to the Divine Gardens Motel and learned that appellants and two women companions had registered in Room 216, after making a stop at a liquor store. This room is located on the second floor of the motel and has a window which overlooks a sun screen or trellis made of 2 6-inch timbers which jut outward from the side of the edifice.

A few minutes after arriving at the motel, the officers observed flickering lights emanating from behind the draperies of appellants' motel room window. Believing that the light came from a motion picture projector, Sergeant Sweeney, who with Curtis was standing in the patio on the floor below, climbed up the steps leading to the landing on the second floor, climbed over a small fence onto the trellis or sun screen and proceeded along the trellis for a considerable distance until he reached appellants' room window. The curtains were drawn, but were slightly parted at the point at which they met the window sill, leaving a one to one and one-half inch aperture. From his vantage point on the trellis, Sweeney looked through the aperture and observed that an obscene film was being shown. He signaled Curtis who had remained stationed in the patio. Then Curtis entered appellants' room, arrested appellants and confiscated the films.

Appellants assert that, like a man's home, a motel room is his castle (Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; People v. Rodriquez, 242 Cal.App.2d 744, 51 Cal.Rptr. 873), and that Sergeant Sweeney violated their right of privacy when he crawled out on the trellis and 'peeked' through the accidental aperture in the draperies. They contend that the officer's clandestine observation through the motel room window constituted an unreasonable search under the rationale of Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288. In that case, the California Supreme Court struck down the police practice of spying into public toilet booths to apprehend persons who used the booths for homosexual activities.

There is merit to appellants' contention. The Fourth Amendment protects a person against police invasion of his right of privacy, and when the police lack either a warrant or probable cause to conduct a search, the appropriate test is 'whether the person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable governmental intrusion.' (People v. Bradley, 1 Cal.3d 80, 84, 81 Cal.Rptr. 457, 459, 460 P.2d 129, 131.) Clearly, by drawing the curtains on the window of a motel room which was located on the second floor of the building and at a considerable distance from any public vantage point, appellants exhibited a reasonable expectation of privacy. Thus, the trespass Sweeney committed when he climbed upon the ornamental trellis to look into appellant's room through the accidental aperture was an unreasonable governmental intrusion.

Respondent subtly concedes that Sergeant Sweeney's surreptitious conduct was constitutionally impermissible; the cases upon which it relies for the contrary proposition involve relatively minor trespasses under circumstances indicating the defendant's indifference to public observation (People v. Aguilar, 232 Cal.App.2d 173, 177, 42 Cal.Rptr. 666; United States v. St. Clair, 240 F.Supp. 338.) Respondent earnestly argues, however, that Officer Curtis had reasonable cause to believe that a public offense was committed in his presence before Sweeney climbed out on the trellis, and that his right to enter appellants' room to arrest them was not vitiated by his fellow-officer's subsequent gymnastics. Respondent contends that the obscene films were properly seized by Curtis as an incident to a valid arrest (People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577.)

In this state a police officer may lawfully make a misdemeanor arrest 'whenever he has reasonable cause to believe that the...