People v. LaJocies

• Decision Date: 30 April 1981
• Docket Number: Cr. 20580
• Citation: 174 Cal.Rptr. 100,119 Cal.App.3d 947
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Sharon LaJOCIES and Ronald LaJocies, Defendants and Appellants.

Page 100

174 Cal.Rptr. 100

119 Cal.App.3d 947

PEOPLE of the State of California, Plaintiff and Respondent, v. Sharon LaJOCIES and Ronald LaJocies, Defendants and Appellants.

Cr. 20580.

Court of Appeal, First District, Division 1, California.

April 30, 1981.

As Modified May 29, 1981.

John C. Schaller, San Jose, for defendants and appellants.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Thomas A. Brady, Kristoffer Jorstad, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

NEWSOM, Associate Justice.

This is an appeal from judgments of convictions entered upon appellants' guilty pleas: appellant Sharon LaJocies (hereinafter Sharon) of possession of a concealable weapon by a felon (Pen.Code § 12021, subd. (a)), and appellant Ron LaJocies (hereinafter Ron) of possession of a slungshot (Pen.Code, § 12020, subd. (a)).

Before entering guilty pleas, appellants challenged the search of their residence and seizure of the evidence upon which the charges against them were based at both their preliminary hearing and in superior court by way of a section 1538.5 motion to suppress and a section 995 motion to dismiss. Sharon also filed a motion to strike her prior conviction. All evidentiary objections and pretrial motions were denied, after which appellants pled guilty and took this appeal.

The facts relating to that search may be summarized as follows:

Appellant Ron was a parolee residing with his wife Sharon in San Jose and supervised by parole agent Chuck Pearce. His parole stemmed from a prior conviction for the sale of amphetamines.

On May 8, 1979, agent Pearce received positive results from a urinalysis test, which indicated that Ron had ingested amphetamines. For that reason, Pearce visited Ron's home on May 15, 1979, and, after receiving no response, left his card with a note asking Ron to "please contact" him. He returned on May 24, 1979, and found Ron at home. While discussing the results of the urinalysis test with Ron, he observed a billy club and a buck knife in the residence, the possession of which he believed to be in violation of the terms of Ron's parole.

He told Ron to report to his office on the same day for testing and further counseling. However, Ron did not report to Pearce's office until May 29, 1979, and, therefore, was arrested upon his arrival. ¹

Pearce then enlisted the assistance of other officers and went to appellants' residence to conduct a "parole search." Ron was informed of their intentions and accompanied the officers.

The officers approached the front door and knocked. Sharon answered, was shown identification, and was informed that the officers intended to make a search of the house pursuant to the conditions of her husband's parole. Sharon was asked to put her dogs in the back yard. While she was doing so, the officers opened the screen door and proceeded to search the house. They found marijuana, amphetamines, a .25 caliber pistol and several homemade weapons. After seizure of these items, Sharon was arrested.

I

Appellants contend that the search of their residence was unlawful and assert a number of grounds in support of this contention.

First, they argue that the officers did not comply with the knock and notice requirements of Penal Code section 1531 prior to entry into the residence. Specifically, they assert that the officers failed to give Sharon a reasonable opportunity to permit peaceable entry as required by the statute.

As appellants suggest, compliance with statutory knock notice requirements is not excused by the mere fact that the search was being conducted pursuant to a parole search condition. (People v. Rosales (1968) 68 Cal.2d 299, 303-304, 66 Cal.Rptr. 1, 437 P.2d 489; People v. Ford (1975) 54 Cal.App.3d 149, 154, 126 Cal.Rptr. 396.) Appellants also correctly point out that under section 1531, an officer, after giving notice of his authority and purpose, must allow an occupant a reasonable opportunity to respond before entering a residence to conduct a search. (People v. Berkeley (1978) 88 Cal.App.3d 457, 459-460, 151 Cal.Rptr. 686; People v. Vollheim (1978) 87 Cal.App.3d 538, 541, 150 Cal.Rptr. 837; People v. Abdon (1972) 30 Cal.App.3d 972, 977-978, 106 Cal.Rptr. 879.) ²

In the present case, agent Pearce properly announced his identity and purpose to Sharon, after which he asked that the dogs be taken to the rear of the residence. While Sharon was complying with agent Pearce's request, the officers opened the screen door and entered the residence. The record does not reflect that the officers were either refused admittance or allowed Sharon a reasonable time in which to admit them.

While strict compliance with statutory dictates may not be indicated by the evidence, we conclude that the entry was lawful under the recognized substantial compliance exception to the knock and notice rule. (People v. Webb (1973) 36 Cal.App.3d 460, 465, 111 Cal.Rptr. 524.) Substantial compliance will satisfy knock and notice requirements when, although attempted compliance falls short of strict literal compliance, the policies and purposes of the requirements have been satisfied. (People v. Peterson (1973) 9 Cal.3d 717, 722-723, 108 Cal.Rptr. 835, 511 P.2d 1187; People v. Turner (1976) 54 Cal.App.3d 500, 504, 126 Cal.Rptr. 652; People v. Bigham (1975) 49 Cal.App.3d 73, 80, 122 Cal.Rptr. 252.)

In our view, the underlying policies of section 1531 were not frustrated by the officer's conduct in the present case. The policy considerations behind the statute are protection of the individual's right to residential privacy, and the avoidance of situations conducive to the risk of violence to occupants or police officers which would often attend entry by an unknown intruder. (People v. Peterson, supra, at pp. 723-724, 108 Cal.Rptr. 835, 511 P.2d 1187; People v. Turner, supra, 54 Cal.App.3d 500, 504, 126 Cal.Rptr. 652; Garcia v. Superior Court (1973) 29 Cal.App.3d 977, 981, 106 Cal.Rptr. 98.) Here, neither appellant's privacy nor a violent confrontation was threatened by the officers' failure to delay their entry into the residence.

Sharon knew of the officers' purpose, and by her actions implicitly acquiesced in the entry. Moreover, the intrusion upon her privacy was not made greater because the officers entered before she returned from the rear of the residence. Ron's privacy was also not infringed upon by the manner in which the residence was entered. Ron had already been arrested, and was in custody outside the residence. Further, as a parolee, he had waived his claim to privacy in his home. (People v. Constancio (1974) 42 Cal.App.3d 533, 543, 116 Cal.Rptr. 910.)

It is equally clear that the risk of a violent confrontation was not increased by the manner of entry, as Sharon had been told of the officer's intentions, and, in fact, was in the process of making preparations for the search at the time the officers entered the residence. We thus reject any notion that failure to strictly comply with the statute resulted in a greater risk that the occupants might respond violently by reason of ignorance of the officers' identity and purpose. (People v. Peterson, supra, 9 Cal.3d 717, 723-724, 108 Cal.Rptr. 835, 511 P.2d 1187.)

We conclude that in the particular circumstances of this case there was substantial compliance with section 1531, and also that the underlying purposes and policies of the statute were served by the conduct of the officers. (People v. Brownlee (1977) 74 Cal.App.3d 921, 929, 141 Cal.Rptr. 685; People v. Murphy (1974) 42 Cal.App.3d 81, 88, 116 Cal.Rptr. 889; People v. Lamb (1972) 24 Cal.App.3d 378, 381, 101 Cal.Rptr. 25; People v. Bustamante (1971) 16 Cal.App.3d 213, 218-219, 94 Cal.Rptr. 64.)

Appellants next challenge the search by arguing that it cannot be justified as either incident to the arrest of Ron or pursuant to a condition of his parole. We find no merit in this argument.

Respondent has never attempted to justify the search as being incidental to arrest. Rather, the search was obviously based upon the following pertinent condition of Ron's parole: "You and your residence and any property under your control may be searched without a warrant." Contrary to appellants' interpretation of this condition, it authorized the search of the residence even though the property in that residence may not have been effectively under Ron's "control" at the time of his arrest.

Citing Tompkins v. Superior Court (1963) 59 Cal.2d 65, 27 Cal.Rptr. 889, 378 P.2d 113, Sharon claims that, notwithstanding Ron's parole status, her right to be free from unreasonable searches and seizures required a warrant, or her consent, prior to the search. In Tompkins, our high court concluded that "one joint occupant who is away from the premises may not authorize police officers to enter and search the premises over the objection of another joint occupant who is present at the time, at least where as in this case, no prior warning is given, no emergency exists, and the officer fails even to disclose his purpose to the occupant who is present or to inform him that he has the consent of the absent occupant to enter." (Id., at p. 69, 27 Cal.Rptr. 889, 378 P.2d 113.)

Tompkins, however, is inapplicable here for the instant search was made pursuant to a parole condition, and so Sharon's consent, as a joint occupier of the residence, was unnecessary. (People v. Icenogle (1977) 71 Cal.App.3d 576, 586, 139 Cal.Rptr. 637; People v. Thomas (1975) 45 Cal.App.3d 749, 756-757, 119 Cal.Rptr. 739; Russi v. Superior Court (1973) 33 Cal.App.3d 160, 168, 108 Cal.Rptr. 716.) The officers clearly had a right to search those portions of the house occupied by Ron and to which he had access. (People v. Johnson (1980) 105 Cal.App.3d 884, 888, 164 Cal.Rptr. 746; Russi v. Superior Court, supra, at p. 168, 108 Cal.Rptr. 716.)

Finally, appellants challenge the denial of their motion to suppress on the...