People v. Mack

• Decision Date: 19 May 1980
• Docket Number: Cr. 21326
• Citation: 611 P.2d 454,27 Cal.3d 145,165 Cal.Rptr. 113
• Parties: , 611 P.2d 454 The PEOPLE, Plaintiff and Respondent, v. Raymond MACK, Defendant and Appellant.
• Court: California Supreme Court

Page 113

165 Cal.Rptr. 113

27 Cal.3d 145, 611 P.2d 454

The PEOPLE, Plaintiff and Respondent, v. Raymond MACK, Defendant and Appellant.

Cr. 21326.

Supreme Court of California.

May 19, 1980.

Glen H. Schwartz, under appointment by the Supreme Court, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

CLARK, Justice.

Defendant was convicted of one count of first degree murder (Pen.Code, §§ 187, 189), ¹ six counts of first degree robbery (former §§ 211, 211a) and one count of first degree burglary (§§ 459, 460). He was found to have inflicted great bodily injury upon the victim of one of the robbery counts. (Former § 213.) Execution of sentence as to the robbery and burglary counts was stayed pending appeal and service of sentence as to the murder count, the stay to become permanent upon completion of the murder sentence. The judgment is affirmed.

Police investigation was initiated by a telephone call to Los Angeles Police Officer Gary Zerbey from an informant who, refusing to identify himself, stated there was stolen property including television sets, cameras, stereo equipment, silverware and guns in a garage at 6418 South Second Avenue in Los Angeles. The informant further stated the property had been taken in recent burglaries on Eighth Avenue between Slauson and Florence, that five named males were the burglars and that the burglars were preparing to move the stolen property from the garage.

Officer Zerbey determined from police records that property matching the description given by the informant had been taken in recent burglaries in the Eighth Avenue area specified by the informant.

Mark Bowden, who was identified as one of the burglars, lived at the South Second Avenue address. He was known to Officer Zerbey through an investigation, three weeks earlier, of an armed robbery in which shots had been fired and a revolver taken in a previous burglary had been recovered. Two of the robbery suspects had escaped. Bowden, a juvenile, had been arrested and then released on the understanding he would return for an interview with Officer Zerbey, an agreement Bowden failed to honor.

Officer Zerbey, accompanied by two officers he had fully briefed, went to the Bowden residence with the intention of questioning Mark and his parents concerning the informant's allegations as well as the earlier robbery, and of seeking the parents' permission to search the family garage. While Officer Zerbey knocked on the front door of the Bowden residence one of the other officers, Lawrence Skiba, stationed himself at the side of the house, in the driveway leading from the street to the garage. As he did so, two males came out the side door of the garage, observed him and ran back inside shouting "Look out! The cops!" Approaching the garage, Officer Skiba heard "multiple voices" within yelling and what sounded like furniture being moved.

Identifying himself as a police officer, Skiba ordered the occupants out of the garage; five males complied. After again ordering anyone remaining inside to come out, Skiba entered the garage to search for additional suspects. It was a "dirty old garage . . . with a bunch of furniture," including a couch, bed, table and bar, as well as a makeshift loft. While satisfying himself no one remained in the garage, Skiba observed in plain sight the stolen property defendant seeks to suppress.

In a previous proceeding, Skiba was held to have acted reasonably in ordering the occupants out of the garage. (People v. Superior Court (Bowden) (1976) 65 Cal.App.3d 511, 135 Cal.Rptr. 306 (hg. den. 23 February 1977.) ² We now address a question left unresolved in Bowden whether it was reasonable of Skiba to enter the garage to search for additional suspects. We conclude the officer did act reasonably in entering the garage.

The controlling precedent is People v. Block (1971) 6 Cal.3d 239, 103 Cal.Rptr. 281, 499 P.2d 961. We began our analysis in Block by reiterating the "plain sight" rule "that 'objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in(to) evidence.' (Citations.)" (6 Cal.3d at p. 243, 103 Cal.Rptr. at p. 283, 499 P.2d at p. 963.) "A corollary of the 'plain sight' rule," we continued, "is that 'During a lawful search of premises for persons believed to be in hiding, police officers may seize contraband evidence "in plain sight. " (Citations.)' " (Id.) The evidence sought to be suppressed in Block was observed in plain sight by an officer searching the premises for persons believed to be in hiding. The case turned, therefore, on the reasonableness of his belief.

Noting that the ultimate question was whether the challenged search was a lawful search for additional suspects, we set forth the principles governing the resolution of that question. "As a general rule, the reasonableness of an officer's conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. (Citation.) And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or 'hunches,' but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary. (Citations.)" (Id. at p. 244, 103 Cal.Rptr. at p. 283, 499 P.2d at p. 963.)

Applying these principles, we concluded the officer acted reasonably in searching for additional suspects. "In the instant case, it seems evident that Officer Galloway had reasonable cause to believe, based upon facts available to him at the time he acted, that additional persons might be on the premises. The presence of six or seven persons downstairs, four of whom bore signs of recent marijuana use, together with the immediate detection of burning marijuana smoke and the discovery of a smoking marijuana roach and two pipes lying in plain sight on a coffee table reasonably indicated that a 'pot party' was in progress, involving an undetermined number of participants. The lights which illuminated the stairway and upstairs hall justified the further suspicion that other persons might be upstairs who were involved in the offenses charged (fn. omitted), or who might pose a security risk for the arresting officers. Under these circumstances, it was entirely reasonable for Officer Galloway to act as he did." (Id. at p. 245, 103 Cal.Rptr. at p. 284, 499 P.2d at p. 964.)

This court relied upon Block in upholding a search for additional suspects in People v. Sommerhalder (1973) 9 Cal.3d 290, 107 Cal.Rptr. 289, 508 P.2d 289. In Sommerhalder, officers investigating murder went to a cabin shared by two suspects with the intention of questioning them and a third suspect believed to be with them. The occupants responded to the officers' knock with gunfire. When the officers returned the fire, four people, including the three suspects the officers had come to interview, emerged from the cabin and gave themselves up. Citing Block, this court upheld the officers' entry into the cabin to search for other suspects. The officers did not know whether anyone else remained in the building. The three suspects they had come to question, in addition to a fourth person, had left the cabin. Nevertheless, it was reasonable to believe there might be others inside, either armed or wounded, and the officers had a duty to find out. (9 Cal.3d at p. 305, 107 Cal.Rptr. 289, 508 P.2d 289.)

In conclusion, comparison of this case with Block and Sommerhalder clearly demonstrates Officer Skiba acted properly in entering the garage to search for additional suspects. He did so out of justifiable concern for his own safety. The reasons for his concern were several. He knew Bowden had been arrested for an armed robbery in which shots had been fired and that his accomplices had escaped. He believed these dangerous fugitives might be in the garage. He knew the stolen property alleged to be in the garage included firearms. Therefore, anyone remaining in the garage would have access to deadly weapons. Moreover, he did not know whether the five men who had come out of the garage included all five of the accused burglars. His belief that additional suspects might be found in the garage was, manifestly, amply supported by "specific and articulable facts."

We now consider defendant's contention that the trial court erred in denying his motion to suppress his confessions.

The events culminating in the search of the Bowden garage occurred on 29 August 1975. At that time defendant and the four other suspects were arrested for receiving stolen property. Defendant testified that upon arriving at the police station he was advised of his Miranda rights ³ and declined to make a statement. Defendant was released within 48 hours. Investigation of the stolen property found in the Bowden garage led police to believe defendant had committed the acts leading to the present charges. On 5 September 1975, he was rearrested by Los Angeles police officers and taken to a Santa Monica Police Department station where an officer of that department, as well as a Los Angeles officer, again advised him of his Miranda rights. Defendant waived his privilege against self-incrimination, describing his criminal activity in tape recorded and handwritten statements.

Defendant moved to suppress his confessions on three grounds. First, he contended the confessions were the "fruit of the poisonous tree." (See Wong Sun v. United States (1963) 371 U.S. 471, 485, 487-488, 83 S.Ct. 407, 416, 417-418, 9 L.Ed.2d 441.) Defendant's argument,...