People v. Peterson

Decision Date16 July 1973
Docket NumberCr. 16466
Citation9 Cal.3d 717,511 P.2d 1187,108 Cal.Rptr. 835
CourtCalifornia Supreme Court
Parties, 511 P.2d 1187 The PEOPLE, Plaintiff and Respondent, v. Leonard Martin PETERSON, Defendant and Appellant.

Richard H. Levin, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Robert F. Katz and Donald F. Roeschke, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Defendant appeals from a judgment entered upon his plea of guilty of possession of heroin (Health & Saf.Code, § 11500) after denials of his motions to set aside the information (Pen.Code, § 995) and to suppress evidence (Pen.Code, § 1538.5). 1 One of five charged prior convictions was found to be true, probation was denied, and defendant was sentenced to the state prison for the term prescribed by law.

Defendant asserts on this limited appeal (fn. 1, supra) that police officers failed to comply with the provisions of Penal Code section 1531 in effecting an entry into and conducting a search of defendant's home pursuant to a search warrant. 2 The search disclosed a supply of heroin the admissibility of which defendant unsuccessfully challenged both at the preliminary hearing and by pretrial motions. 3 He now asserts: (1) that the evidence was erroneously received; and (2) that he was deprived of due process because he was denied the right to confront witnesses and to rebut testimony received in support of material in the probation officer's report. We conclude for the reasons which follow that defendant's contentions lack merit.

A warrant was issued on March 23, 1970, authorizing the search of the person of defendant, his residence and two vehicles. During the following week officers kept his home under surveillance but observed no activity at that location. On March 30, however, defendant was seen moving boxes from a vehicle into the residence. Shortly thereafter, accompanied by a female, defendant drove away in a Cadillac automobile, one of the vehicles described in the warrant, and was taken into custody when he stopped at a parking lot. 4

Immediately after defendant's apprehension the arresting officers proceeded to defendant's residence. According to Officer Keith Kalm, whose testimony at the hearing on the motion to suppress was expressly found to be true by the court, the officers stopped at the entrance to defendant's home. An inner door was open and Officer Kalm was able to see through a closed but unlatched screen door into the living area wherein plain view he observed a man and a woman seated and engaged in conversation.

The officer testified that while he was standing at the doorway he knocked several times but neither party within the dwelling responded. After waiting approximately one minute he opened the screen door, stood at the threshold, identified himself and, after stating he had a warrant for a search of the premises, entered. 5

Approximately three minutes after the officer's entry, defendant, together with several of the officers who earlier had been present when he was apprehended, entered the residence and defendant announced to the occupants thereof that the officers, having a warrant, should be allowed to conduct a search. He then accompanied the officers to a rear bedroom, pointed to some white powder on the top of a dresser and stated: 'That is all the smack there is. You won't find any more.' Later analysis disclosed that the substance was heroin. An additional small amount of heroin was found in one of the dresser drawers and marijuana was discovered concealed in a nearby bed. Defendant thereafter led the officers to a bathroom where he disclosed the location of his 'outfit' for injecting narcotics.

Although defense witnesses' accounts of the officers' entry differed from that of the officers in material respects, the trial court was justified in accepting as true the account of Officer Kalm, and we are bound thereby. (See People v. Sweeney (1960) 55 Cal.2d 27, 33, 9 Cal.Rptr. 793, 357 P.2d 1049.)

The thrust of defendant's attack is a claimed lack of strict compliance with the procedural sequences set forth in section 1531. The officers were required to comply with that statute although the doorway was barred only be an unlocked, transparent screen door. 6 (See People v. Bradley (1970) 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129.)

In Greven v. Superior Court (1969) 71 Cal.2d 287, 78 Cal.Rptr. 504, 455 P.2d 432, relied on by defendant, we reviewed those cases dealing with 'substantial compliance' which, although short of an exact compliance with all of the strictures of the announcement portion of the statute, nevertheless were deemed to satisfy the mandate of section 1531. In that case and the cases there reviewed we particularly inquired as to whether there had been compliance with the requirements of both notice of the officer's authority and of his purpose in demanding entry. 7 Here, it clearly appears, the officers gave both portions of such notice. But in this case we are presented with a further question. The officers committed a technical breaking by opening the unlatched screen door before such notice was given. We must resolve whether failure to comply strictly with the step-by-step direction of the statute can be deemed to constitute substantial compliance.

We noted in Duke v. Superior Court (1969) 1 Cal.3d 314, 82 Cal.Rptr. 348, 461 P.2d 628, that statutes requiring announcement serve the following purposes and policies: '(1) the protection of the privacy of the individual in his home (citations); (2) the protection of innocent persons who may also be present on the premises where an arrest is made (citation); (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice (citations); and (4) the protection of police who might be injured by a startled and fearful householder.' (Id., at p. 321, 82 Cal.Rptr. at p. 352, 461 P.2d at p. 632; see also People v. Greven, supra, 71 Cal.2d 287, 292--293, 78 Cal.Rptr. 504, 455 P.2d 432.) When police procedures fail to conform to the precise demands of the statute but nevertheless serve its policies we have deemed that there has been such substantial compliance that technical and, in the particular circumstances, insignificant defaults may be ignored.

It must be recognized in the instant case that had Officer Kalm made his announcement at the time of knocking and before pulling open the screen door, section 1531 would have been fully satisfied had he been refused admittance or had there been an unreasonable delay by the parties within in responding to the demand. 8

The question then is whether Officer Kalm by delaying his announcement until after he had opened the screen door frustrated or made nugatory any of the purposes and policies previously enumerated. We note that the interior of the residence and the occupants therein were visible to any member of the public who, like the officers, had proper reason to enter onto the premises and approach the visibly open doorway. Thus, no right of privacy was infringed as the opening of the screen door revealed nothing more than was already exposed to the officers' view and they did not physically intrude into the home until after the announcement.

It is equally clear that no greater risk of violence to any person on the premises was created, as at all times after approaching and knocking the officers could clearly observe the occupants within the interior and take precautionary measures if necessary. Nor can it be argued successfully that there was a greater risk that the occupant might respond violently by reason of ignorance of the officers' identity and purpose, as the officers were immediately visible and announced their purpose to the occupants who were thus made aware of the situation and its demands. Assuredly the personal safety of the officers, as in the case of the occupants, was not subjected to any increased danger. 9 We conclude that in the particular circumstances of this case there was substantial compliance with section 1531, and that there also has been compliance with the purposes and policies set forth in Duke v. Superior Court, supra, 1 Cal.3d 314, 82 Cal.Rptr. 348, 461 P.2d 628 and Greven v. Superior Court, supra, 71 Cal.2d 287, 78 Cal.Rptr. 504, 455 P.2d 432. Accordingly, the contraband found in defendant's residence was lawfully seized and the trial court properly denied defendant's motion under section 1538.5.

We next address ourselves to defendant's second contention, that he had been denied due process of law because of procedural defects at the hearing upon his application for a grant of probation. At the outset of the hearing the trial court stated: 'I was interested in hearing from Sergeant Ingels. It is stated in the probation report that Sergeant Ingels is reported by the probation officer to have said that the defendant was a big dealer in heroin, selling probably two or three ounces a day. I would like to find out about that as to whether or not Sergeant Ingels has been accurately quoted and what information he has on the subject. ( ) If he is available, I would like to hear from him.' It was this comment which triggered lengthy proceedings with numerous witnesses being called on behalf of both the People and the defendant. At the conclusion thereof probation was denied and the state prison sentence imposed.

The sergeant referred to by the trial court, Carlyle Ingels, was called as a witness and testified in part as follows: that only four days before the probation hearing a man named Richard M. Thompson was arrested while leaving defendant's residence; that Thompson appeared to be suffering from narcosis and stated he had made regular purchases of heroin from defendant over a two- or three-month...

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