People v. Larry A.

• Citation: 154 Cal.App.3d 929,201 Cal.Rptr. 696
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. LARRY A., a Minor, Defendant and Appellant. A019979.
• Decision Date: 24 April 1984
• Court: California Court of Appeals

Page 696

201 Cal.Rptr. 696

154 Cal.App.3d 929

The PEOPLE of the State of California, Plaintiff and Respondent, v. LARRY A., a Minor, Defendant and Appellant.

A019979.

Court of Appeal, First District, Division 2, California.

April 24, 1984.

John K. Van de Kamp, Atty. Gen., Kristofer Jorstad, Mary A. Roth, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Nancy L. Siegel, San Leandro, for defendant and appellant.

KLINE, Presiding Justice.

By a petition filed on August 4, 1982, Larry A., the minor appellant herein, was charged with burglary, petty theft and misdemeanor possession of marijuana. (Pen.Code, §§ 459, 484; Health & Saf.Code, § 11357, subd. (b).) On August 26, the petition was sustained with respect to the counts charging petty theft and possession of marijuana. The burglary count and a motion to suppress under Welfare and Institutions Code section 700.1 related to that count were dismissed without prejudice.

On August 27, a supplemental petition was filed recharging appellant with burglary, receipt of stolen property, and with being an accessory to a felony. (Pen.Code, §§ 459, 496.32.) On September 21, after denying appellant's motion to suppress evidence, the court found the burglary charge to be true and made no findings with respect to the remaining two charges. Appellant was continued a ward of the court and committed to the Youth Authority for a maximum period of 38 months with appropriate predisposition credits. Notice of appeal was timely filed on October 22, 1982.

I ^**

II. Burglary.

Facts.

Ruben Vargas testified that at 8:00 a.m. on August 2, 1982, he locked and left his home at 1522 Munson Way in Oakland. When he returned at 6:00 p.m., he found his stereo, two speakers and two television sets missing. Entrance to the house had obviously been obtained through a rear window, which had been removed.

At about 3:00 p.m. that day Alfredo Becerra saw a person dressed in red, whom he later identified as appellant, come out of a residence at 1522 Munson Way carrying two television sets. He then saw appellant hand the larger of the two television sets to a man in a blue El Dorado, who gave him "something" in return and put the set in the trunk of the car. Appellant took the other set to a nearby apartment house, from which he soon emerged without the set but with another person. The two then went back into 1522 Munson Way through the front door. Shortly appellant came out of the house carrying two speakers; his companion was carrying a stereo receiver. Becerra testified that at that point Bernado Delgado and some companions who were walking down Munson saw the two and yelled at them. Appellant dropped the speakers and fled. Becerra, who followed on his bike, watched appellant re-enter the apartment house and re-emerge with the small television set he earlier brought in and walk up 15th Street. When Becerra later saw appellant he had changed his clothes and did not have the television set. Delgado told Becerra to call the police, who arrived in about five or 10 minutes.

At the time of the foregoing events Rafael Alvarez was at 15th and Munson trying to start his motorcycle. He testified that he also saw a "dude" dressed in an all-burgundy outfit walking down Munson with two television sets. He saw this person give the larger of the two sets to a man in an El Dorado and then put the smaller set by an apartment house. Alvarez then went into the house from which he believed the sets had originally been taken and yelled "anybody home?" No one responded. When he went back onto the street he and his friends, one of whom had written down the license number of the El Dorado, saw the person in the burgundy outfit and another person come out from the apartments. The two, who were then empty handed, entered an alley adjacent to the house on Munson from which the television sets had been taken and soon re-appeared carrying a stereo and speakers. When Alvarez' companion, Benny, yelled at them, they dropped the goods and started to run. Alvarez and Benny grabbed one and held him for the police. The other, who was wearing the burgundy outfit and who Alvarez later identified in court as appellant, escaped. However, later that day Alvarez and Benny saw him again a few blocks away wearing different clothing. With the help of others, they restrained him until the police arrived. When the police came to the scene Alvarez heard Benny tell them that appellant was one of those who had taken the television sets, that he had changed his clothes, that he lived in a specified house (later identified as 1529--24th Street) and that the clothes he was originally wearing and a television set would probably be there.

The testimony of Becerra and Alvarez was corroborated in numerous particulars by other witnesses.

Oakland Police Officer James Mari arrested appellant, who was being restrained by three or four juveniles, and then proceeded to appellant's house at 1529--24th Avenue, to which he had been directed by one of the juveniles. Before Officer Mari went to appellant's house, which was close to the house on Munson that had been burglarized, he handcuffed appellant and put him in his police car. Officer Mari testified that he went to appellant's house to recover evidence, i.e., the television set and the distinctive burgundy clothing appellant was wearing at the time of the crime, which the juveniles in the street told him were probably there. When he knocked on the door a boy appeared who told him that his mother was not home. Although the officer had his foot in the door, the boy resisted his entry. A young woman then came to the door, but she also would not permit the officer to enter. At some point a large man came from within the house and argued with the officer and told him "you're not coming in the house." Then another woman who lived at the house came to the door and also refused to let the officer enter. Officer Mari testified that "... I told her that I got this guy [i.e., appellant] and I know there's evidence. I have reason to believe there's evidence in that house and that I was in fresh pursuit of the suspect, I caught him, and I don't know where else the evidence could be.... I have information that [the suspect] went in there so I am holding my ground. [p] And I told her I wasn't going to give up that door and that was it. And I called for cover units. And I called for my sergeant, also." When Sergeant Clark arrived and was briefed on the situation by Officer Mari, the sergeant agreed that the officers should enter and they did so despite the protestations of the inhabitants of the house, and despite the fact that no search warrant had been obtained.

When asked why he did not obtain a warrant, Officer Mari responded, in effect, that to do so would in his opinion have been logistically infeasible. ¹

In the process of entering the house the police arrested the young woman and the large man for interfering with the investigation. During their search of the premises the police located the television set and burgundy clothes appellant was earlier wearing, which were in plain view within an interior room not visible from the front door.

Appellant's trial counsel objected to the receipt in evidence of the television set and clothing on the ground that it was the product of an illegal search and seizure. Counsel specifically contended that there was an insufficient showing of exigent circumstances to permit a warrantless search.

The trial court disagreed, and the television set and clothing was admitted into evidence. ²

Discussion.

"The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable ....' " (Mincey v. Arizona (1978) 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290.) Only a few "specifically established and well-delineated exceptions" (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576) have been judicially engrafted upon this general proscription and the counterpart set forth in article I, section 13, of the California Constitution. (People v. Cook (1978) 22 Cal.3d 67, 97, 148 Cal.Rptr. 605, 583 P.2d 130.)

The question whether the search in question was reasonable within the meaning of the constitution presents a question of law. For this reason we are not bound by the substantial evidence standard in reviewing the trial court's decision; it is rather our responsibility to measure the facts found by the trier against the constitutional standard of reasonableness. (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.) In this endeavor we are to exercise an independent judgment. (People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961.)

We turn first to the relatively simple question whether at the time of the search Officer Mari was in hot pursuit of a suspect and that the police entry was justified by this exigency. The police certainly were not then in pursuit of appellant, who was handcuffed in Officer Mari's patrol car. The Attorney General states that instead the officers were pursuing appellant's accomplice "who was then nowhere to be seen." However, the testimony of Officer Mari reveals that the reason the accomplice was then nowhere to be seen is that he had been restrained at the scene by various witnesses to the crime and immediately taken into custody by Officer Dawes, who arrived before Officer Mari. In short, the record makes it clear that at the time of the entry both suspects were already in custody. The hot pursuit of suspects therefore cannot provide the exigent circumstances needed to justify the warrantless search.

The alternative exigency relied upon by respondent, and apparently as well by the trial court, was the officer's need to immediately seize the evidence they were told was in the house, i.e.,...