People v. Privett

• Court: United States State Supreme Court (California)
• Citation: 361 P.2d 602,55 Cal.2d 698,12 Cal.Rptr. 874
• Decision Date: 01 May 1961
• Docket Number: Cr. 6720
• Parties: , 361 P.2d 602 PEOPLE of the State of Callifornia, Respondent, v. Bobbie Blanche PRIVETT et al., Appellants.

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12 Cal.Rptr. 874 55 Cal.2d 698, 361 P.2d 602 PEOPLE of the State of Callifornia, Respondent,
v.
Bobbie Blanche PRIVETT et al., Appellants. Cr. 6720. Supreme Court of California, In Bank. May 1, 1961.

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[361 P.2d 603] [55 Cal.2d 700] Minsky, Garber & Rudof, Albert C. Garber and Robert P. Dockeray, Los Angeles, for appellants.

Stanley Mosk, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

DOOLING, Justice.

1] Defendant Privett and defendant Walker, mother and daughter, were convicted by a jury respectively of burglary and receiving stolen property. They argue on appeal that the trial court erred in admitting over their objection evidence obtained as a result of an unlawful search of their home. The officers entered the home and made the search without a warrant, thus putting the burden on the prosecution to produce evidence sufficient to justify the entry and search. Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.

In the evening of September 13, 1958, an apartment occupied by Mrs. King was burglarized in her absence. Various articles identified as having been taken in this burglary were found in the home of appellants as a result of the search complained of. In addition one witness identified appellant Privett as the woman whom he had seen leaving the entrance of the building in which Mrs. King's apartment was situated on the night of September 13, 1958, in the company of a man whom this witness was unable to identify. The man was carrying two suitcases and the woman had some clothing thrown over her arm. Another witness testified that she saw the two appellants standing together near the apartment house entrance on the same night, but the effect of her identification was weakened by the fact that she described both women as slender while Mrs. Walker testified to being 8 1/2 months pregnant at that time. Both appellants testified that they had not been in the neighborhood of Mrs. King's apartment on the day or night in question and stated that Edwards had brought the stolen articles to their home, and that they had assumed that they belonged to his wife from whom he was separated.

The only possible justification for the search of appellants' home is to be found in the testimony of Deputy Sheriff Sullivan. [55 Cal.2d 701] Sullivan testified that four or five days before September 18, 1958, he observed one Clair Edwards step out of an automobile containing two women and some small children and hold a conversation in the street with one Gould, whom Sullivan knew to be a burglar. He afterwards examined police records and ascertained that Edwards also had a burglary record. By tracing the license number of the car Sulli

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van [361 P.2d 604] obtained the address of appellants' home. On September 18 the officers commenced a surveillance of appellants' home and saw appellants, Edwards and some small children entering and leaving the house at various times over a period of three days. On September 21 at about 9 p. m. Sullivan with six or seven other officers gathered in the street opposite appellants' home. None of the officers was in uniform and they were all dressed in 'rough clothing.' They saw Edwards and appellant Privett at the window of a front bedroom looking in their direction. The officers proceeded across the lawn, knocked on the front door, and 'almost instantly * * * the lights went out.' They called out that they were police officers and receiving no response, they kicked in the front door. Sullivan immediately arrested Edwards and the questioned search by the officers followed. Two days later a second search, also without a warrant, was made. There was no testimony as to the charge upon which Edwards was arrested nor any testimony that at the time of Edwards' arrest and the ensuing search Sullivan or any of the officers with him knew of the King burglary or had reason to believe that Edwards had committed that burglary or any other felony.

2] An arrest without a warrant can only be legally made if the person arrested has committed a public offense in the presence of the arresting officer or if the arresting officer has reasonable cause to believe that the person arrested has committed a felony. (Pen.Code, § 836; People v. Boyles, 45 Cal.2d 652, 655, 290 P.2d 535; People v. Simon, 45 Cal.2d 645, 648, 290 P.2d 531.

5] The question of probable cause to justify the arrest of Edwards and the search of the premises incident thereto must be tested upon the facts which the record shows were known to the officers at the time the arrest was made. People v. Paul, 147 Cal.App.2d 609, 618, 305 P.2d 996. Baldly stated, those facts were: 1. Some days before September 18, 1958, Edwards was seen talking to a known burglar; 2. Police records showed that Edwards had a previous record for burglary; 3. Edwards, the appellants and their children over [55 Cal.2d 702] a period of three days were seen in and about appellants' home; 4. When seven or eight men wearing rough clothing walked across the lawn, after seeing Edwards and appellant Privett looking out of a bedroom window, and knocked at the door the lights went out, and when they identified themselves as police officers there was no immediate response. Taken separately or all together, these facts could not constitute reasonable cause to believe that Edwards had committed a felony so as to justify his arrest without a warrant. The facts that Edwards had a burglary record and was seen talking to a known burglar, while relevant, are not sufficient to constitute reasonable cause to believe that Edwards had committed a burglary or any other felony. People v. Sanders, 46 Cal.2d 247, 251, 294 P.2d 10. The conduct of Edwards in entering and leaving the appellants' home is not shown to have been accompanied by any suspicious conduct of any sort. There is nothing to support a reasonable belief that any man, no matter how bad his past record, has committed a felony simply because he is seen going in and out of a private home in a normal manner. This leaves only the turning out of the lights and the failure briefly to respond to the call of 'police officers' after seven or eight roughly dressed men crossed the lawn in a body and knocked at the door in the darkness of night. While evasive conduct upon the approach of police officers may under proper circumstances justify an arrest and search (cf. People v. Gardner, 177 Cal.App.2d 43, 1 Cal.Rptr. 830; People v. Williams, 175 Cal.App.2d 774, 1 Cal.Rptr. 44; People v. Amado, 167 Cal.App.2d 345, 334 P.2d 254), the observed approach to a private home in the nighttime of a party of seven or eight roughly dressed men and their knocking on the door might reasonably lead the most innocent of persons to extinguish the lights hoping that they would depart, and their subsequent announcement

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[361 P.2d 605] that they were police officers might reasonably arouse a degree of scepticism that would lead the occupants to make no immediate response or indeed any response at all, except possibly to telephone for the aid of those whom they knew with certainty to be police.

6] This court has held that an arrest without a warrant can only be made if the facts known to the officer before making the arrest would justify the officer in making the arrest, and that such an arrest cannot be justified by what a search following the arrest turns up. People v. Brown, 45 Cal.2d 640, 643, 290 P.2d 528.

7] [55 Cal.2d 703] The sanctity of a private home is not only guaranteed by the Constitutions of the United States and of our own state, but it is traditional in our Anglo-Saxon heritage. 'A man's home is his castle' is, and should be, more than an empty phrase. The Constitutions themselves point to the proper procedure to be followed in invading this precious sanctity. '(N)o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' U.S.Const. Amend. IV; Cal.Const. art. I, § 19. There was no emergency in this case which would have prevented the officers from seeking a warrant from a magistrate to enter this home. They had it under surveillance for three days and if they had sufficient evidence to satisfy a magistrate that a warrant should issue, they had ample opportunity to secure one. Although a private home may be broken into without a warrant, even in the nighttime, if probable cause exists, in doubtful cases the householder should be entitled to have the protection of the independent judgment of a magistrate before the constitutionally guaranteed sanctity of his home is invaded.

Whether or not we characterize Edwards and Gould as 'professional burglars' because they both had a past burglary record, whether or not we characterize their street conversation as 'making a meet' (thus by a semantic slant putting an aura of criminality about what so far as the police officers knew was an entirely innocent conversation), and whether or not we add the additional fact that a large number of burglaries were committed in Los Angeles County in 1958, we would still have no more than a reason for further police investigation of Gould and Edwards to determine whether any substantial evidence could be discovered which would connect either of them with the commission of any one or more burglaries. It would be destructive of the constitutional safeguards to permit police officers to break into any private home where the officers had no information tending to connect any occupant thereof with any reported or known felony.

It is impossible to distinguish this case in principle from People v. Sanders, supra, 46 Cal.2d 247, 294 P.2d 10. There the defendant was known to the arresting officers as a bookmaker who had been convicted in the past of bookmaking. The defendant was operating a phonograph record shop. Another bookmaker had been arrested in the shop on the day before. The...