People v. Lee

• Decision Date: 22 October 1986
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Stephen Terrill LEE, Defendant and Appellant. D002600.

Page 45

231 Cal.Rptr. 45

186 Cal.App.3d 743

The PEOPLE, Plaintiff and Respondent, v. Stephen Terrill LEE, Defendant and Appellant.

D002600.

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

Oct. 22, 1986.

As Modified Nov. 3, 1986.

Review Denied Jan. 23, 1987.

Douglas W. Grinnell, San Diego, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Frederick R. Millar, Jr., Supervising Deputy Atty. Gen. and Pamela A. Ratner, Deputy Atty. Gen., for plaintiff and respondent.

WORK, Associate Justice.

Stephen Terrill Lee appeals from a judgment convicting him of possessing cocaine (Health and Saf.Code, § 11350), ¹ claiming his warrantless arrest and the seizure of cocaine from his private law office was nonconsensual and under nonexigent circumstances, and violated his constitutional right to be free from unreasonable seizures. His motion to suppress the cocaine discovered as a direct result of the arrest was denied on the sole stated ground the lower court believed Lee was not entitled to protection from warrantless arrest in his private law office, accessible only after contacting a receptionist in an outer room. Because of its threshold holding, the court never considered whether the facts showed the entry for the arrest was consensual or justified by exigent circumstances. We hold the facts of this case bring into play the constitutional protection expressed in People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, and reverse the judgment.

FACTS

On April 20, 1982, a police informant purchased cocaine with marked bills from Lee at Lee's law office. The informant had told police Lee would deal only from his office, instead of his residence, because the office was "impregnable." Lee's office was located on the fourth story of a building within an office suite with no exit except through the front door. There was a hallway outside the office suite, a front door leading into the reception area for the suite, and a series of business offices within the suite, with Lee's located toward the back. Ten or twelve police officers stood at each end of the hallway outside the suite and watched the informant enter the closed front door to the suite. On exiting, he handed an officer a bag of cocaine, and stated there should be more narcotics in the office and that Lee had said he knew the Narcotics Task Force was on to him and would double the money if the informant was being paid by them.

Some officers left with the informant and the others entered the suite. One officer went to the receptionist and quickly showed her his identification. The officers, dressed in civilian clothes but wearing badges, went directly to the back to Lee's office without waiting for her to announce them. The officers knocked on the door, attempted to open it, and found it was locked. They knocked several more times. Lee's secretary opened the door. There was no conversation. When the secretary stepped out of the way, the officers saw Lee inside, but no contraband was visible from the door.

Without any conversation or express invitation, the officers entered and arrested Lee.

At the police station, Lee was seen taking a vial of cocaine out of his pocket. He was convicted only of illegally possessing the cocaine in this vial.

I

Absent exigent circumstances or consent, warrantless arrests within the home are per se unreasonable seizures, prohibited by article I, section 13 of the California Constitution and the Fourth Amendment of the federal Constitution, even if there is probable cause for the arrest. (People v. Ramey, supra, 16 Cal.3d at pp. 275-276, 127 Cal.Rptr. 629, 545 P.2d 1333; Payton v. New York (1980) 445 U.S. 573, 576, 100 S.Ct. 1371, 1374-75, 63 L.Ed.2d 639.)

The issue here is whether warrantless arrests at a place of business are equally restricted. In United States v. Driver (9th Cir.1985) 776 F.2d 807, 809-810, the court found a reasonable expectation of privacy and held unlawful a nonconsensual entry and nonexigent, warrantless arrest in a closed office area located on the upper level of a public furniture showroom, noting the area was not exposed or visible to the public and the drug-related arrest was not based on any regulation of the business activities. We agree with the court in Driver that an occupant of an interior office not open to the general public has a right to be free from warrantless arrest therein absent consent or exigent circumstances.

The United States Supreme Court has held that the arrest of a suspect when he is a customer in a public restaurant at midday does not involve the privacy issues raised by warrantless arrests in a home. (United States v. Watson (1976) 423 U.S. 411, 413, 418, fn. 6, 96 S.Ct. 820, 822-23, 825, fn. 6, 46 L.Ed.2d 598.)

However, in reaching its conclusion in Payton that warrantless arrests in the home are restricted, the court distinguished Watson as involving an arrest in a public place, for which the common law rule permitting such warrantless arrests was clear. (Payton v. New York, supra, 445 U.S. at pp. 574, 590, 596-598, 601, 603, 100 S.Ct. at pp. 1373-74, 1382, 1385-86, 1387-89.) In short, the distinction between Payton and Watson is not that the former involves a home and the latter a business, but rather that the former involves a place of private retreat and the latter involves a place of public accessibility. ²

Several courts in other jurisdictions have evaluated whether a place of business gives rise to privacy rights so as to preclude a warrantless arrest therein, and concluded under the facts of the particular case, no reasonable expectation of privacy existed. These cases did not, however, find no privacy right because the premise was a business rather than a home, but instead carefully examined whether the particular circumstances warranted a privacy right. (See, e.g., State v. Figaroa (1982) 3 Hawaii App. 377, 650 P.2d 1373, 1378-1379 [no expectation of privacy at a mill worksite, where defendant was apparently a subcontractor's employee having no control over who came or went onto the property]; Clark v. State (Tex.App. 14 Dist.1985) 686 S.W.2d 253, 254 [no privacy expectation at a badly rundown building, without a "no trespassing" sign, fence, or front door, and no indication it was being used for residential or business purposes]; State v. Doukales (1973) 111 R.I. 443, 303 A.2d 769, 772 [lawful entry into (and subsequent warrantless arrest in) variety store, which was business establishment open to the public].) Similarly, in California cases where Penal Code section 844's (arrest) or section 1531's (search) "knock and notice" requirements were held not applicable since the premises were a business rather than a residence, the business area was located behind an unlocked door which was freely accessible In contrast, dicta in Payton v. New York, supra, 445 U.S. at pp. 586-587, 100 S.Ct. at pp. 587-88, suggests that business areas which are not openly accessible to the public carry the same privacy rights as homes:

to the public. (See, e.g., People v. Maita (1984) 157 Cal.App.3d 309, 323, 203 Cal.Rptr. 685 ["[n]one of the purposes of section 1531 and section 844 with their concern for intrusions into residential privacy would be served by requiring police officers to state their 'authority and purpose' before crossing the threshold of a theater into which the general public has been invited"]; People v. Lovett (1978) 82 Cal.App.3d 527, 532, 147 Cal.Rptr. 136 [a second-hand store which, the defendant admitted, anybody could come in even without his permission]; People v. James (1971) 17 Cal.App.3d 463, 466, 95 Cal.Rptr. 121 [Black Panther headquarters open for business and located in a business building with a front door which led to the sidewalk, which had no screen, which was wide open, and which led directly into the room where there were desks and chairs].)

"It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable.25 Yet it is also well settled that objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. The distinction between a warrantless seizure in an open area and such a seizure on private premises was plainly stated in G.M. Leasing Corp. v. United States, 429 U.S. 338, 354 [97 S.Ct. 619, 629, 50 L.Ed.2d 530]:

" 'It is one thing to seize without a warrant property resting in an open area or seizable by levy without an intrusion into privacy, and it is quite another thing to effect a warrantless seizure of property, even that owned by a corporation, situated on private premises to which access is not otherwise available for the seizing officer.'

"As the late Judge Leventhal recognized, this distinction has equal force when the seizure of a person is involved." (Italics added.)

Footnote 25 of the quoted passage provides:

"As the Court stated in Coolidge v. New Hampshire: [p] 'Both sides to the controversy appear to recognize a distinction between searches and seizures that take place on a man's property-- his home or office--and those carried out elsewhere. It is accepted, at least as a matter of principle, that a search or seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of "exigent circumstances." ' [p] ... 403 U.S. , at 474-475, 477-478 [91 S.Ct. 2022, 2042-44, 29 L.Ed.2d 564]." (First italics added.) (Ibid.) ³

In G.M. Leasing Corp. v. United States (1977) 429 U.S. 338, 351-352, 358-359, 97 S.Ct. 619, 627-28, 631-32, 50 L.Ed.2d 530, cited in Payton, the court held a warrantless, nonexigent seizure...