People v. Bencomo

• Citation: 171 Cal.App.3d 1005,217 Cal.Rptr. 826
• Court: California Court of Appeals Court of Appeals
• Decision Date: 03 September 1985
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert BENCOMO, Defendant and Appellant. Crim. B006628.

Page 826

217 Cal.Rptr. 826

171 Cal.App.3d 1005

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert BENCOMO, Defendant and Appellant.

Crim. B006628.

Court of Appeal, Second District, Division 3, California.

Sept. 3, 1985.

[171 Cal.App.3d 1008] Harvey E. Byron, Los Angeles, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., William R. Weisman, Supervising Deputy Atty. Gen., and Frederick Grab, Deputy Atty. Gen., for plaintiff and respondent.

LUI, Associate Justice.

PROCEDURAL BACKGROUND

In an information filed March 23, 1984, appellant Robert Bencomo was charged with conspiracy to sell and possession of cocaine for sale, in violation of Penal Code section 182, ¹ and Health and Safety Code sections 11351 and 11352, respectively, between the dates of January 17, 1984, and February 13, 1984 (count I). Appellant was also charged with the sale of cocaine, in violation of Health and Safety Code section 11352 on February 6, 1984 (count II), and with possession for sale of one kilo of cocaine on February 13, 1984, in violation of Health and Safety Code section 11351 (count III).

In connection with count II, it was further alleged that in the commission of the offense, appellant and a codefendant, Gordon Miller, possessed for sale approximately one pound (in excess of 28.5 grams) of cocaine within the meaning of section 1203.04, subdivision (b)(1). It was also further alleged in connection with count III that appellant possessed one ounce and more of cocaine (one kilo) for sale within the meaning of section 1203.04, subdivision (b)(1).

Appellant was arraigned and entered a plea of not guilty. He subsequently filed two motions to suppress evidence obtained during the search of his house. The first motion was made pursuant to section 1531, in which appellant contended that the police failed to comply with the knock-notice requirements of section 1531 in executing the search warrant. The second motion was made pursuant to section 1538.5 in which he contended that the police unlawfully obtained his unlisted name and address from the telephone company in violation of his reasonable expectation of privacy under California law.

Following the denial of appellant's motions to suppress evidence and to quash the search warrant, appellant changed his plea on count II to guilty and admitted the further allegation of possession of cocaine in excess of one pound ( § 1203.04, subd. (b)(1)). In making his plea, appellant twice stated that his guilty plea was based on the trial court's denial of his 1538.5 motion. Counts I and III were then dismissed in furtherance of justice.

The trial court denied probation, and appellant was sentenced, pursuant to a plea agreement, to the low base term of three years on count II. He received credit for 243 days in custody, which included 81 days for good time/work time. The trial court ordered the Department of Corrections to submit a report to it within 120 days pursuant to section 1170, subdivision (d).

Appellant filed a timely notice of appeal from the judgment of conviction.

FACTUAL BACKGROUND

On the evening of February 13, 1984, Detective Alan Price, who was assigned to the narcotics division of the City of Montebello Police Department, participated in the execution of a search warrant on appellant's residence in the Woodland Hills area. Nine other officers participated. ² When Price and the other officers arrived at Bencomo's residence, they encountered a five-foot concrete wall with a wrought iron padlocked gate situated in front of the house and driveway. ³ The gate extended the width of the driveway and consisted of vertical wrought iron bars spaced several inches apart. The gate was 20 or 30 feet from the front door. Because there was no buzzer, bell, or other means of contacting the occupants of the house from their vantage point outside the gate, the officers proceeded to climb over the gate.

After climbing over the gate, Price observed lights go on in the house, the front door open, and appellant emerge from the house. As the two men approached each other, appellant asked Price to identify himself, whereupon Price informed appellant that he was a police officer and that he had a search warrant authorizing the search of his person and home. Price then asked appellant to place his hands on his head so he could conduct a pat down search. Appellant again asked Price who he was. When Price repeated that he was a police officer, appellant began to struggle.

After subduing appellant, Price handcuffed him and asked if there was anyone in the house. Appellant answered that his wife was inside. Police then followed appellant as he walked through the open door of the house. As Price entered, he announced in a "somewhat loud voice" that he was a police officer. While Price stayed in the front room with appellant, the other officers went to the back of the house to locate appellant's wife. Price testified that he heard the officers knock on a door and identify themselves as police officers before entering the room where appellant's wife was located. The officers then conducted a search of appellant's home and found cocaine.

At the hearing on appellant's motion to quash the search warrant, the People stipulated that the "official departmental channel" from which they alleged to have obtained appellant's name and address in the affidavit supporting the search warrant for appellant's residence, was actually the telephone company. Appellant's telephone number, name and address were unlisted. Since appellant's motion to suppress evidence obtained during the search was based entirely on his motion to quash the search warrant, the trial court only permitted testimony which related to information contained within the "four corners of the search warrant."

CONTENTIONS ON APPEAL

Appellant's contentions may be summarized as follows:

1. Appellant's reasonable expectation of privacy in his unlisted name, address and telephone number was violated when police obtained such information from the telephone company without a search warrant, and thus the search warrant subsequently obtained for appellant's residence must be quashed pursuant to our Supreme Court's holding in People v. Chapman;

2. The police officers failed to comply with the knock-notice requirements of section 1531 when they climbed over the fence surrounding his residence, as well as when they entered his house during the service of the search warrant.

DISCUSSION

I The Trial Court Was Not Compelled to Quash the Search Warrant Pursuant to People v. Chapman

Appellant vigorously contends that because the police obtained his name and address from the telephone company and were thus able to obtain a search warrant for his residence, the search warrant must be quashed and the evidence seized during the search must be suppressed pursuant to People v. Chapman (1984) 36 Cal.3d 98, 201 Cal.Rptr. 628, 679 P.2d 62. We conclude that the Chapman decision is not retroactive.

Even if Chapman were retroactive, Proposition 8 ⁴ would preclude suppression of the evidence as a remedy for the police misconduct. Therefore, we reject appellant's contention that the trial court erred in denying his motion to quash the search warrant and his motion made pursuant to section 1538.5.

A. The California Supreme Court Decision in People v. Chapman Is Not Retroactive

In Chapman, the police obtained the name and address of a "phone spot" operator ⁵ for an illegal betting operation from the telephone company without a warrant by using an unlisted telephone number given to them by a confidential informant. The police later obtained a search warrant for the phone spot operator's (McGee) residence and car, reciting the name and address obtained from the telephone company in the affidavit. The search of McGee's residence turned up evidence of illegal betting activity against both McGee and Chapman; both were arrested and charged with conspiracy to commit bookmaking.

The trial court granted the defendants' motions to suppress and then set aside the information. Our Supreme Court affirmed, defining the sole issue presented as whether the police had "violated a constitutionally protected expectation of privacy by obtaining, without a warrant, the name and address of McGee from the telephone company although the number [was] unlisted. [Fn. omitted.]" (People v. Chapman, supra, at p. 105, 201 Cal.Rptr. 628, 679 P.2d 62.) Examining the principles it had enunciated in Burrows v. Superior Court (1974) 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590, and People v. Blair (1979) 25 Cal.3d 640, 159 Cal.Rptr. 818, 602 P.2d 738, the court concluded that an individual has a reasonable and constitutionally protected privacy interest in the subscriber information he or she must reveal to the telephone company in order to have a telephone. Thus, as in Burrows, where police must first obtain a warrant to gain access to a depositor's bank records, and in Blair, where a warrant is necessary for police to obtain a customer's telephone call records, the police must obtain a warrant prior to securing the name and address of an unlisted telephone subscriber from the telephone company. (People v. Chapman, supra, 36 Cal.3d at pp. 106-108, 201 Cal.Rptr. 628, 679 P.2d 62.)

Chapman, however, was not decided until April 26, 1984, two months after police obtained appellant's name and address from the telephone company. The question with which we are thus presented is whether Chapman may be applied retroactively to invalidate the search warrant based on the telephone subscriber information in this case.

Recently, the retroactive application of Chapman was examined in People v. Martino (1985) 166 Cal.App.3d 777, 212 Cal.Rptr. 45. In Martino, as in the instant case, the police obtained a defendant's name and address from the telephone company without a search warrant based on a telephone number they had in their possession prior to the Supreme Court's decision in C...