People v. Jacobs

• Citation: 729 P.2d 757,43 Cal.3d 472,233 Cal.Rptr. 323
• Court: California Supreme Court
• Decision Date: 02 January 1987
• Parties: , 729 P.2d 757 The PEOPLE, Plaintiff and Respondent, v. John Albert JACOBS, Defendant and Appellant. Crim. 25366.

Page 323

233 Cal.Rptr. 323

43 Cal.3d 472, 729 P.2d 757

The PEOPLE, Plaintiff and Respondent, v. John Albert JACOBS, Defendant and Appellant.

Crim. 25366.

Supreme Court of California In Bank.

Jan. 2, 1987.

Rehearing Denied Feb. 26, 1987.

Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, and Peter R. Silten, Deputy State Public Defender, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Eugene W. Kaster and Kristofer Jorstad, Deputy Attys. Gen., for plaintiff and respondent.

BROUSSARD, Justice.

Defendant appeals from a judgment of conviction of burglary, the key evidence of which was seized by officers who entered his home with a warrant for his arrest. He contends the police failed to comply with the knock-notice statute and that his 11-year-old stepdaughter did not give valid consent to the intrusion. We hold that the seizure was unlawful because the prosecution failed to show that the police had reasonable grounds for believing defendant was in the house or that they reasonably believed the child had the authority to permit the entry and search.

I. FACTS

Defendant was employed as a janitor at an automobile dealership in San Rafael from March through September 1981. The business was burglarized on September 5 and December 20 of that year, and a specially manufactured television set was stolen on each occasion. The evidence suggested that defendant was involved in one or both of these crimes.

On the morning of New Year's Eve, 1981, Sergeant Hasser of the San Rafael Police Department obtained a valid warrant for the arrest of defendant in connection with the burglaries. About 3:20 p.m. on the same day, Hasser and Detectives Keller and Boyd, all dressed in plain clothes, went to defendant's home in an unmarked vehicle to execute the arrest warrant. They did not have a valid search warrant.

Hasser and Keller knocked on the front door while Boyd observed the back of the house. Gretchaen, defendant's 11-year-old stepdaughter, greeted the 6-foot-tall officers at the door.

There was conflicting testimony about what happened next. Hasser testified that he identified himself to Gretchaen and showed her his badge. He then asked to see defendant and inquired if he could enter the house; he was standing outside in inclement weather at the time. He did not present the warrant or explain that he intended to arrest defendant. Gretchaen admitted Hasser and Keller into the front room and, almost simultaneously, responded that defendant would return home in about an hour. Hasser "wanted to believe the young girl," but he felt he had a "responsibility to check a little bit to make sure [defendant] wasn't just standing in one of the rooms."

Hasser asked Gretchaen for a quick tour of the house to confirm defendant's absence. Gretchaen accompanied the officers through the rooms of the house. The officers discovered Gretchaen's younger brother, whom she was babysitting, but they did not find defendant. On their way out of the house, the officers noticed in plain view a specially manufactured television set matching the description of one stolen from the auto dealership. When Hasser asked Gretchaen about the set, she said defendant had brought it in just before Christmas. Hasser seized the set, both as contraband under Penal Code section 537e ¹ (serial number removed) and as evidence of burglary. He then left his card and requested that defendant call him. The officers departed without placing the house under surveillance.

Gretchaen testified as follows for the defense. She answered a knock at the door and discovered two men. When Hasser asked for defendant, she told him defendant would be back in an hour. Hasser then stated the officers "had to come in and check around ... and see if [defendant] was there." Without asking permission to enter, Hasser and Keller proceeded into the dining room, gave Gretchaen a card, and identified themselves. The officers then searched the rest of the house as Gretchaen watched from the dining room. When they returned to the front room, Detective Boyd brought them a listing of serial numbers. The officers examined the television set, removed it, and departed. About an hour later, defendant returned to the house.

On cross-examination, Gretchaen testified she was babysitting her two younger brothers, aged two and five, when the officers arrived. Her older brother and parents were not home. She admitted that Hasser asked permission to enter while he was standing on the steps, and that he used a normal tone of voice, did not show her a weapon, did not frighten her, and did not push her aside in making his entry. On redirect, Gretchaen testified that Hasser did not really ask permission but stated "they would have to come in and check if John was there."

Defendant was charged with two counts of burglary in violation of section 459. He pleaded not guilty and moved to suppress the television set pursuant to section 1538.5. The superior court denied the motion, and defendant exhausted his opportunities for review of the ruling. Defendant was convicted of the December burglary, and the Court of Appeal affirmed.

II. DISCUSSION

Both the California and the federal Constitutions prohibit police from entering a suspect's home to make a routine felony arrest unless the entry is based on an arrest warrant, exigent circumstances, or consent. (People v. Ramey (1976) 16 Cal.3d 263, 275-276, 127 Cal.Rptr. 629, 545 P.2d 1333, cert. den. 429 U.S. 929, 97 S.Ct. 335, 50 L.Ed.2d 299; Payton v. New York (1980) 445 U.S. 573, 576, 100 S.Ct. 1371, 1374-1375, 63 L.Ed.2d 639.) In this case the Attorney General contends the officers' entry was justified on two grounds: (1) they were in possession of an arrest warrant, and (2) they entered with Gretchaen's consent. Defendant maintains the warrant was not a valid ticket to enter his home because the police did not execute the warrant in compliance with section 844. He contends Gretchaen's consent neither justified the entry nor excused the statutory violation because she lacked actual and apparent authority to permit the entry and search.

Defendant asserts the entry violated section 844 because he was not inside the house when the police entered and the police lacked reasonable grounds for believing him to be there. Section 844 provides: "To make an arrest, a private person, if the offense be a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired." (Italics added.) These requirements apply when the arrest is to be made by virtue of a warrant and when officers are authorized to make an arrest without a warrant. (See People v. Bennetto (1974) 10 Cal.3d 695, 698-700, 111 Cal.Rptr. 699, 517 P.2d 1163; cf. Miller v. United States (1958) 357 U.S. 301, 309, 78 S.Ct. 1190, 1195-1196, 2 L.Ed.2d 1332.)

Sergeant Hasser testified that he believed defendant was home because the police had obtained defendant's address from an application for employment, had observed defendant at that address in October 1981, and had ascertained that defendant was not employed at a daytime job. Hasser reasoned: "[I]f I don't know ... about someone working, being employed or otherwise, being required to be away from the residence in the daytime, then my strongest suspicion is that he's going to be there."

We have previously held that "[s]ection 844 of the Penal Code requires more than a reasonable belief that the person to be arrested owns or leases the dwelling which is entered; there must be a reasonable belief that the person is inside at the time of entry." (People v. Bennetto, supra, 10 Cal.3d 695, 700, 111 Cal.Rptr. 699, 517 P.2d 1163 (italics added); accord People v. Smith (1972) 7 Cal.3d 282, 287, 101 Cal.Rptr. 893, 496 P.2d 1261; Horack v. Superior Court (1970) 3 Cal.3d 720, 726-727, 91 Cal.Rptr. 569, 478 P.2d 1; Greven v. Superior Court (1969) 71 Cal.2d 287, 293, fn. 9, 78 Cal.Rptr. 504, 455 P.2d 432.) Although Hasser's testimony supports an inference that defendant could be home at 3:20 p.m., when the officers attempted to serve the warrant, it does not, without more, support a finding that the officers had reasonable grounds to believe defendant was in fact home. ² "The term 'reasonable grounds' as used in section 844 is the substantial equivalent of the terms 'reasonable cause' and 'probable cause' as used in constitutional and statutory provisions pertaining to the issuance of a search warrant ..., an arrest without a warrant ..., a commitment by a magistrate or an indictment by a grand jury...." (People v. Pease (1966) 242 Cal.App.2d 442, 445, 51 Cal.Rptr. 448; accord Sanderson v. Superior Court (1980) 105 Cal.App.3d 264, 270, 164 Cal.Rptr. 290.) "Reasonable grounds to believe the person named in the warrant was in the house means such a state of fact as would lead a man of ordinary caution or prudence to believe, and to conscientiously entertain a strong suspicion the subject of the warrant was in the house." (People v. Cagle (1971) 21 Cal.App.3d 57, 64, 98 Cal.Rptr. 348.) The Attorney General's theory would permit arresting officers who otherwise comply with section 844 to kick down a suspect's door on any weekend or legal holiday if they have reason to believe the suspect is employed only on weekdays. We do not think the Legislature intended an exception to section 844 for intrusions into the homes of suspects when they are not working.

If the officers had a hunch or a hope defendant would be home, the evidence indicates it was dispelled before they entered the house. They arrived in plain clothes and an unmarked car, and there is no suggestion defendant perceived their arrival and fled or hid. Defendant's vehicles were nowhere in sight. When they asked Gretchaen if defendant was home, she...