People v. Mayer

• Decision Date: 22 January 1987
• Docket Number: No. B016480,B016480
• Citation: 188 Cal.App.3d 1101,233 Cal.Rptr. 832
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Michael MAYER, Defendant and Appellant.

Page 832

233 Cal.Rptr. 832

188 Cal.App.3d 1101

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Michael MAYER, Defendant and Appellant.

No. B016480.

Court of Appeal, Second District, Division 7, California.

Jan. 22, 1987.

Janet Sherman and Victor Sherman, Santa Monica, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert F. Katz and David F. Glassman, Deputy Attys. Gen., for plaintiff and respondent.

KRIEGLER, Associate Justice. ^*

In an information filed by the District Attorney of Los Angeles County, appellant James Michael Mayer was charged in count I with possession of cocaine for the purpose of sale (Health & Saf.Code, § 11351) and in count II with possession of marijuana for the purpose of sale (Health & Saf.Code § 11359). Following denial of appellant's motions pursuant to Penal Code sections 995, 1531 and 1538.5, appellant pleaded guilty to the charge in count I of possession of cocaine for the purpose of sale. Appellant was placed on probation for five years, with the first year to be served in county jail. Appellant purports to appeal "from the denial of motions pursuant to Penal Code sections 1538.5, 995 and 1531." ¹

Appellant raises the following three issues in the instant appeal:

(1) Failure to comply with the knock-notice requirements of Penal Code section 1531 in this case cannot be condoned;

(2) The affidavit in this case does not meet the probable cause standard; the motion to quash the warrant should have been granted; and

(3) Appellant's motion to traverse the search warrant should have been granted.

FACTS RELATING TO EXECUTION OF THE SEARCH WARRANT

A search warrant was served on appellant's residence in Woodland Hills on June 30, 1982. Deputy Richard Wenig of the Los Angeles Sheriff's Department, the affiant on the warrant, sought the assistance of the Special Enforcement Bureau in execution of the warrant. The Special Enforcement Bureau of the Sheriff's Department is specially trained in gaining entry into barricaded locations.

Deputy Wenig told Deputy Gheral Taylor of the Special Enforcement Bureau that the location to be searched was heavily barricaded in the front and surveillance cameras were in place. Deputy Wenig told Sgt. Arthur Fransen that the Los Angeles Police Department had previously attempted to gain entry to the same residence, but had encountered difficulty due to its fortification and the camera, resulting in the loss of a sizeable amount of narcotics. Deputy Wenig also stated he believed there were weapons present at the location.

Deputy Taylor drove by the residence and observed the front door to be barred with wrought iron grill work. He also saw a camera or monitoring device. A helicopter then flew over the residence to obtain an aerial view of the scene.

It was decided that it would be safest to serve the search warrant in the afternoon. A plan was devised which would split the Special Enforcement Bureau into two teams. The team headed by Sgt. Fransen would traverse a mountain behind the residences next to appellant's, climb over a fence and enter through a sliding glass door by the patio. The second team was to go to the front door of the residence. ²

Sgt. Fransen explained that the decision to seek entry through the rear door was based upon the iron gate barring entrance in the front. If the officers could gain the attention of the occupants of the house through the iron gate, ³ the officers would be "totally vulnerable" to attack from within and narcotics would be destroyed.

From a safety standpoint, Sgt. Fransen concluded it would be "ridiculous" to stand in front of an iron gate and demand entry. Sgt. Fransen testified, "they could refuse our request" to enter, and "we can stand outside until we all were old and gray and ready for retirement."

Deputy Taylor, who possessed a copy of the search warrant, was part of the rear team headed by Sgt. Fransen. Deputy Taylor wore green fatigues which contained the Los Angeles County Sheriff's patch. The deputies also had baseball caps with the sheriff's six-pointed star.

The entry team traversed behind three houses over what appeared to be private property until arriving at the rear of appellant's residence. The residence has a sliding glass door which opens onto a patio in the rear. The entry team climbed over a fence and was on the patio when appellant's brother, David Mayer, exited the residence and walked onto the patio, leaving the sliding door open behind him.

Sgt Fransen identified the officers as sheriff's deputies and announced they had a search warrant. ⁴ This announcement was described by Deputy Taylor as a "loud identification." David Mayer was detained at this time on the patio. Deputy Beene, who was in front of Deputy Taylor, said, "They are running." Deputy Taylor saw two men running through the house, which he thought was in response to the loud identification of the deputies on the patio.

Deputy Taylor yelled, "Sheriff's Department, Sheriff's Department." Either Deputy Taylor or Sgt. Fransen yelled that they had a search warrant. This announcement was made before entry into the residence through the sliding glass door.

Once inside Deputy Beene ran in the direction of two men moving toward the back of the house. Deputy Taylor observed appellant exit a bedroom carrying a clear plastic baggie containing a white powder. Appellant immediately began to run back into the bedroom and then into a bathroom. A later search of the bathroom led to recovery of plastic baggies containing cocaine from the toilet bowl, floor and shower. A handgun was found on a night stand in the same bedroom.

I THE OFFICERS DID NOT VIOLATE PENAL CODE SECTION 1531 IN THEIR ENTRY INTO APPELLANT'S BACK YARD AND RESIDENCE

Appellant first argues that the "Rambo" approach to service of the search warrant ran afoul of the knock-notice provisions of Penal Code section 1531. Appellant reasons that the officers violated section 1531 by climbing over a fence into his back yard. He also argues there was no excuse for noncompliance with section 1531 when the deputies entered appellant's residence. Finally, appellant argues it was impossible to comply with section 1531 at the sliding glass door at the rear patio because there "was essentially no back door."

A. Entry Into the Back Yard

Turning first to the contention that the officers should have complied with section 1531 before climbing over a fence into appellant's back yard, we find nothing in the express language of section 1531 ⁵ to require such an announcement. It is clear from the language of section 1531 that the Legislature did not envision requiring officers to knock and announce at a gate or fence in attempting to serve a warrant on a house.

In People v. Bencomo (1985) 171 Cal.App.3d 1005, 217 Cal.Rptr. 826, the court rejected the contention that the knock-notice requirement of section 1531 applied to a concrete wall and padlocked wrought iron gate surrounding a residence. "We conclude that the knock-notice requirements of section 1531 ordinarily do not apply to gates or fences." (Id., at p. 1015, 217 Cal.Rptr. 826.) The court in Bencomo did leave open the possibility that section 1531 might apply to walls or gates in some circumstances "because the configuration of a residence and its appurtenances is particularly unique to each residence." (Ibid.)

Examining the circumstances in the present case, we conclude the knock-notice requirement of section 1531 did not apply before the officers climbed over the fence into appellant's back yard. First, there was no one in the back yard at the time to receive the notice. Second, there is nothing in the record to indicate that the fence surrounding the back yard was situated in such a way as to be deemed an integral part of the house itself. Whatever privacy existed in appellant's back yard was as much the result of the natural hillside as the fence.

The determination of whether section 1531 applies to entry into a back yard also depends on the purposes and policies supporting the rule. In Duke v. Superior Court (1969) 1 Cal.3d 314, 321, 82 Cal.Rptr. 348, 461 P.2d 628, the court explained the four policies supporting the knock-notice requirement as follows: (1) protection of the privacy of the individual in his home; (2) the protection of innocent persons who may also be present on the premises when an arrest is made; (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice; and (4) the protection of police who might be injured by a startled and fearful householder.

The policies supporting section 1531 provide no basis for concluding the officers were required to knock and announce their presence and purpose before entering appellant's back yard by climbing over the fence. Because the fence was not part of the house itself, and no one was in the back yard at the time the officers climbed the fence to perceive notice of the deputy's presence, we conclude section 1531 was not applicable to entry into the back yard.

The question remains as to whether it is proper for officers, armed with a search warrant, to seek entry through the rear door of a residence. Counsel for appellant expressly conceded this issue in the trial court, stating, "I am not saying you have to go to the front door," and, "They can go in the back door as long as they comply with 1531."

In the instant case, entry through the rear door was not merely an option, it was the only practical means of entry into the residence. As Sgt. Fransen noted, the front door was barred with a wrought iron gate and protected by a surveillance camera. This situation left the officers vulnerable to attack from inside if they had attempted to serve the warrant at the front door, and also could have resulted in destruction of narcotics while officers stood by futilely attempting to gain entrance.

Moreover, the officers had an...