People v. Drews
| Decision Date | 23 March 1989 |
| Docket Number | No. D006590,D006590 |
| Citation | 208 Cal.App.3d 1317,256 Cal.Rptr. 846 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. David Carl DREWS, Defendant and Appellant. |
Wilbur F. Littlefield, Public Defender, Los Angeles, Laurence M. Sarnoff and Albert J. Menaster, Deputy Public Defenders, and Diane Campbell, as amici curiae on behalf of appellant.
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Rudolf Corona, Jr. and Patti W. Ranger, Deputy Attys. Gen., for plaintiff and respondent.
After the superior court denied his motion to suppress evidence (PEN.CODE, § 1538.51, subd. (i)), defendant David Drews pleaded guilty to possessing methamphetamine for sale. (Health & Saf.Code, § 11378.) Drews appeals, contending the court erred in denying his motion to suppress. Drews asserts the superior court should have permitted him to present additional evidence on his motion to suppress. He also asserts the court should have found the police did not comply with section 1531's "knock and notice" requirements before entering his apartment to execute a search warrant. We affirm.
At his preliminary hearing Drew moved to suppress evidence under section 1538.5. Drew's motion was denied and he was held to answer.
In the superior court Drews renewed his motion to suppress under section 1538.5, subdivision (i). 2 Drews wanted to present additional evidence he asserted could not reasonably have been presented at the preliminary hearing. The People objected. When the court asked why the evidence was not presented at the preliminary hearing, Drews requested an in camera hearing to disclose the reasons.
Counsel for Drews stated in camera he wanted to call four witnesses: Drews, Sevino, Mestes and Capone. The court found Drews and Sevino could reasonably have been presented at the preliminary hearing. The court determined Mestes and Capone could not have reasonably been presented at the preliminary hearing. The court proceeded to examine the admissibility of the proposed testimony of Mestes and Capone. The court found Mestes's testimony was collateral and surplusage on the issue of police compliance with "knock and notice" requirements. The court found Capone's testimony was merely cumulative.
The court then denied Drews's motion to suppress.
In determining the propriety of the superior court's denial of Drews's motion to suppress, we must review the evidence presented on the motion at the preliminary hearing and the facts proffered at the in camera hearing in superior court.
Police arrested Drews after searching his apartment and seizing drugs and drug-related paraphernalia. At the preliminary hearing, Drews moved to suppress the evidence under section 1538.5, asserting the arresting officers did not comply with section 1531's "knock and notice" requirements. 3 On that issue the magistrate heard testimony from two police officers and two defense witnesses.
On October 8, 1986, at 5:27 p.m., four police officers executed a search warrant at Drews's apartment. The officers climbed the stairs to the second floor of the apartment complex. The stairs ended at a small landing with two apartments, numbers 49 and 51, opening onto it. Drews lived in number 51.
People's witness Officer Heggestuen testified he knocked on the door of apartment 51, identified himself as a police officer with a warrant to serve, and in a loud voice demanded entry. There was no response. Heggestuen heard no sounds from inside the apartment. After waiting 15 seconds, Heggestuen knocked again, repeated his verbal identification and again demanded entry. After waiting another 15 seconds with no response, Officer Hines used a metal pole to break down the door. The officers did not believe there was an emergency in the apartment. Upon entry Heggestuen saw a man--Damon Sevino 4--walking toward the front door. Sevino was patted down for weapons and detained. The officers found Drews in a bathroom. Drews was arrested after drugs and drug paraphernalia were found in the apartment.
At the preliminary hearing Drews told the court he would call three witnesses on the "knock and notice" issue. Drews did not identify those three witnesses to the court. Ultimately only two defense witnesses, Leslie Brown and Tommy Enriquez, testified. Drews made no further mention of a third witness.
Defense witness Brown lived in apartment 49 directly across the landing from apartment 51. The distance between the doors of the apartments was two and one-half to three feet. Brown came home from work at 4 p.m. While sitting in his living room reading, Brown heard two loud booms, one of which knocked the door to his apartment open slightly. Brown looked out his peephole and heard a man yell, Brown did not hear any voices before that nor did he hear anyone knocking on the door of apartment 51 or demanding entry. Brown was about 15 feet from the front door when he heard the loud booms, which at first he thought were earthquakes.
Defense witness Enriquez was 13 years old and lived in apartment 50. While sitting on his balcony with friends, Enriquez saw police officers go up the stairs and start banging on the door of apartment 51. According to Enriquez, the banging did not sound like knocking. Instead, Enriquez did not hear the officers say anything.
Officer Bellizzi testified in rebuttal. Bellizzi helped serve the search warrant. According to Bellizzi, he was halfway up the stairs when he saw Heggestuen knock on the door, identify himself and demand entry. The stairway was about 15 to 20 feet long. Heggestuen knocked only once, and
after waiting 15 seconds, the officers knocked down the door.
In the superior court Drews wanted to call bystander Mestes as an additional witness. Mestes was not present when the search warrant was executed. Mestes would have testified the officers searched his backpack when they came out of Drews's apartment. According to the defense theory, if the officers denied searching Mestes, the court could determine who was telling the truth regarding the "knock and notice" issue.
In the superior court Drews also wanted to call Capone as an additional witness. Capone was discovered during the week before the superior court hearing. Drews made an offer of proof Capone would testify: Capone was outside the apartment complex and saw police arrive. Capone ran to the first floor apartment directly beneath Drews's apartment. The apartment complex's construction was flimsy. From his location Capone would have heard a knock on Drews's door. Capone does not recall any knock, but remembers a couple of loud booms. 5
Section 1538.5, subdivision (i), as amended effective January 1, 1987, removes the right of a defendant to have a de novo hearing in the superior court on a suppression motion if the motion was made at the preliminary hearing. Evidence at the superior court section 1538.5, subdivision (i) hearing is limited to the preliminary hearing transcript and evidence which could not reasonably have been presented at the preliminary hearing. Defendant is entitled to an in camera hearing on the issue whether any such new evidence could reasonably have been presented at the preliminary hearing if the People object to such new evidence on this ground. The purpose of the in camera hearing is "to protect the attorney-client privilege and to preclude prosecutorial discovery." (See Assem.Com. on Public Safety Rpt. on Assem. Bill No. 2328 (Jan. 17, 1986) p. 2 (1986 Reg.Sess.).)
We now examine whether the superior court was correct in excluding the testimony of the four witnesses proffered by Drews. We find no prejudicial error.
In the superior court defense counsel wanted to call Drews as an additional witness. Counsel stated he did not have Drews testify at the preliminary hearing because it would have constituted malpractice and would have hampered Drews's Fifth Amendment rights against self-incrimination.
The superior court ruled Drews's testimony could reasonably have been presented at the preliminary hearing. The court found no material difference between a defendant testifying in a suppression motion at a preliminary hearing and testifying in a pretrial motion in superior court. We agree.
If a defendant testifies at a suppression hearing in superior court, his testimony may not be used against him by the People in their case in chief. (Simmons v. United States (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; People v. Cornejo (1979) 92 Cal.App.3d 637, 155 Cal.Rptr. 238.) However, if a defendant's testimony at a pretrial suppression hearing is inconsistent with his testimony at trial, the People may use such pretrial testimony for impeachment. (People v. Douglas (1977) 66 Cal.App.3d 998, 136 Cal.Rptr. 358.)
In People v. Douglas, supra, 66 Cal.App.3d 998, 136 Cal.Rptr. 358, the defendant ...
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