People v. Benjamin, Cr. 13188

CourtUnited States State Supreme Court (California)
Writing for the CourtSULLIVAN; TRAYNOR
Citation455 P.2d 438,78 Cal.Rptr. 510,71 Cal.2d 296
Parties, 455 P.2d 438 The PEOPLE, Plaintiff and Respondent, v. Robert Bertram BENJAMIN, Defendant and Appellant.
Docket NumberCr. 13188
Decision Date18 June 1969

Page 510

78 Cal.Rptr. 510
71 Cal.2d 296, 455 P.2d 438
The PEOPLE, Plaintiff and Respondent,
v.
Robert Bertram BENJAMIN, Defendant and Appellant.
Cr. 13188.
Supreme Court of California,
In Bank.
June 18, 1969.

Page 511

[455 P.2d 439] [71 Cal.2d 297] Arthur Lewis, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Edward Duddy, Deputy Atty. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant Robert Bertram Benjamin was charged by information with one count of bookmaking (Pen.Code, § 337a, subd. 1) and one count of keeping or occupying premises for the purpose of bookmaking (Pen.Code, § 337a, subd. 2). The information also charged him with having suffered two prior felony convictions. Defendant waived a jury trial and the matter was submitted on the transcript of the preliminary examination and points and authorities by counsel. The court found defendant guilty as charged, found that the priors were true, and sentenced defendant on each count to state prison for the term prescribed by law, the sentences to run concurrently. Execution of the sentences was suspended and probation was granted for three years subject to conditions imposed by the court. Defendant appeals from the judgment of conviction. (See Pen.Code, § 1237.)

On March 17, 1967, Joseph A. Gunn, a Los Angeles police officer assigned to a vice unit, obtained a warrant authorizing [71 Cal.2d 298] the search of a described apartment and the person of defendant Benjamin for bookmaking paraphernalia. About 2:40 p.m. on March 18, Officer Gunn and other officers undertook to execute the warrant and proceeded to the described apartment. There, according to the officer's testimony at the preliminary examination, he 'yelled 'Police Officer,' and forced entry.' Defendant Benjamin was found inside and various items of bookmaking paraphernalia were seized.

At the preliminary examination Officer Gunn was asked his reason for forced entry, and he replied: 'It has been my experience in the past if you knock on the door and demand entrance to a bookmaking location, the evidence would be destroyed. I was afraid that this time if I knocked on the door and demanded entrance, the evidence would, in fact, be destroyed.'

Defendant contends that the evidence admitted against him was illegally obtained because the officer failed to comply with section 1531 of the Penal Code, which 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.'

Although defendant did not object at trial to the admission of the subject evidence on the ground of noncompliance with section 1531, he is not thereby precluded from raising the objection at this time. (People v. De Santiago (1969) 71 A.C. 18, 23--28, 76 Cal.Rptr. 809, 453 P.2d 353.)

We conclude that defendant's contention has merit. Clearly the entry of Officer Gunn was not effected in strict compliance with the literal terms of section 1531. (Cf. Greven v. Superior Court (1969) 71 Cal.2d ---, ---, 78 Cal.Rptr. 504, 455 P.2d 432.) Moreover, it is manifest---and the People do not argue otherwise---that the entry was not effected in a manner which constituted 'substantial compliance' with the terms of the section (see Greven v. Superior Court, Supra, 71 Cal.2d ---, ---, 78 Cal.Rptr. 504, 510, 455 P.2d 432, [455 P.2d 440]

Page 512

--- and cases there cited), for even if we assume that the officer's 'yell' was an effort on his part to give 'notice of his authority and purpose,' it appears that that 'yell' was simultaneous with and a part of the entry and that the occupant of the apartment was given no opportunity to grant or refuse admittance. Finally, the record herein provides no basis for concluding that the officer was excused from eompliance with the section under the common law exceptions to the rule of announcement. 'Our decision in [71 Cal.2d 299] People v. Gastelo, Supra, 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706, clearly forecloses the propriety of noncompliance with section 844 or its counterpart section 1531 when such noncompliance is based solely upon an officer's general experience relative to the disposability of the king of evidence sought and the propensity of offenders to effect disposal.' (People v. De Santiago, Supra, 71 A.C. 18, 29, 76 Cal.Rptr. 809, 815, 453 P.2d 353, 359.)

Because the evidence obtained by means of the entry here in question was crucial to the conviction, the judgment must be reversed. However, as we recently indicated in People v. Hamilton (1969) 71 Cal.2d ---, 77 Cal.Rptr. 785, 454 P.2d 681 this disposition does not 'preclude the possibility of retrial and renewed efforts by the prosecution at that time to show specific facts known to the officers which justified their noncompliance with section 1531.' (71 Cal.2d at p. ---, 77 Cal.Rptr. at p. 786.) We therefore proceed to consider a further issue raised by defendant which might arise upon retrial, to wit, the sufficiency of the affidavit in support of the search warrant upon the authority of which the entry was undertaken. 1

The affidavit in support of the warrant was subscribed and sworn to...

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41 practice notes
  • People v. Cooks, Cr. 15402
    • United States
    • California Court of Appeals
    • 25 Marzo 1983
    ...584, 587, 21 L.Ed.2d 637; People v. Hamilton (1969) 71 Cal.2d 176, 179-180, 77 Cal.Rptr. 785, 454 P.2d 681; People v. Benjamin (1969) 71 Cal.2d 296, 301, 78 Cal.Rptr. 510, 455 P.2d 438; People v. Scoma (1969) 71 Cal.2d 332, 336-338, 78 Cal.Rptr. 491, 455 P.2d 419; Skelton v. Superior Court ......
  • People v. Buchanan, Cr. 4718
    • United States
    • California Court of Appeals
    • 22 Junio 1972
    ...the information. (People v. Superior Court (Johnson), 6 Cal.3d 704, 711--712, 100 Cal.Rptr. 319, 493 P.2d 1183; People v. Benjamin, 71 Cal.2d 296, 301--303, 78 Cal.Rptr. 510, 455 P.2d 438; People v. Scott, 259 Cal.App.2d 268, 278--279, 66 Cal.Rptr. 257; cf. United States v. Harris, 403 U.S.......
  • Halpin v. Superior Court
    • United States
    • United States State Supreme Court (California)
    • 24 Abril 1972
    ...circulating in the underworld or an accusation based merely on an individual's general reputation.' Citing People v. Benjamin (1969) 71 Cal.2d 296, 302--303, 78 Cal.Rptr. 510, 455 P.2d 438, the People alternatively argue that even if the hearsay statements of Mooney's informant were not suf......
  • People v. McDaniel, Cr. 18899
    • United States
    • United States State Supreme Court (California)
    • 11 Febrero 1976
    ...Cal.3d 171] requirement may nevertheless be satisfied if the tip is corrobrated by independent investigation. (People v. Benjamin (1969) 71 Cal.2d 296, 301--303, 78 Cal.Rptr. 510, 455 P.2d 438.) In view of the foregoing it is manifest that Aguilar did not require that the magistrate, in jud......
  • Request a trial to view additional results
41 cases
  • People v. Cooks, Cr. 15402
    • United States
    • California Court of Appeals
    • 25 Marzo 1983
    ...584, 587, 21 L.Ed.2d 637; People v. Hamilton (1969) 71 Cal.2d 176, 179-180, 77 Cal.Rptr. 785, 454 P.2d 681; People v. Benjamin (1969) 71 Cal.2d 296, 301, 78 Cal.Rptr. 510, 455 P.2d 438; People v. Scoma (1969) 71 Cal.2d 332, 336-338, 78 Cal.Rptr. 491, 455 P.2d 419; Skelton v. Superior Court ......
  • People v. Buchanan, Cr. 4718
    • United States
    • California Court of Appeals
    • 22 Junio 1972
    ...the information. (People v. Superior Court (Johnson), 6 Cal.3d 704, 711--712, 100 Cal.Rptr. 319, 493 P.2d 1183; People v. Benjamin, 71 Cal.2d 296, 301--303, 78 Cal.Rptr. 510, 455 P.2d 438; People v. Scott, 259 Cal.App.2d 268, 278--279, 66 Cal.Rptr. 257; cf. United States v. Harris, 403 U.S.......
  • Halpin v. Superior Court
    • United States
    • United States State Supreme Court (California)
    • 24 Abril 1972
    ...circulating in the underworld or an accusation based merely on an individual's general reputation.' Citing People v. Benjamin (1969) 71 Cal.2d 296, 302--303, 78 Cal.Rptr. 510, 455 P.2d 438, the People alternatively argue that even if the hearsay statements of Mooney's informant were not suf......
  • People v. McDaniel, Cr. 18899
    • United States
    • United States State Supreme Court (California)
    • 11 Febrero 1976
    ...Cal.3d 171] requirement may nevertheless be satisfied if the tip is corrobrated by independent investigation. (People v. Benjamin (1969) 71 Cal.2d 296, 301--303, 78 Cal.Rptr. 510, 455 P.2d 438.) In view of the foregoing it is manifest that Aguilar did not require that the magistrate, in jud......
  • Request a trial to view additional results

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