People v. Smith

• Decision Date: 23 May 1972
• Docket Number: Cr. 16137
• Citation: 496 P.2d 1261,7 Cal.3d 282,101 Cal.Rptr. 893
• Parties: , 496 P.2d 1261 The PEOPLE, Plaintiff and Appellant, v. Edward T. SMITH et al., Defendants and Respondents.
• Court: California Supreme Court

Page 893

101 Cal.Rptr. 893

7 Cal.3d 282, 496 P.2d 1261

The PEOPLE, Plaintiff and Appellant, v. Edward T. SMITH et al., Defendants and Respondents.

Cr. 16137.

Supreme Court of California.

May 23, 1972.

George W. Luke, San Francisco, under appointment by the Supreme Court, for defendants and respondents.

Evelle J. Younger, Atty. Gen., Robert R. Granucci and Thomas A. Brady, Deputy Attys. Gen., for plaintiff and appellant.

MOSK, Justice.

Defendants Edward T. Smith and Sammie A. Blinn were charged with unlawful possession of marijuana. (Health & Saf.Code, § 11530.) Their motion to suppress the evidence on the ground of illegal search and seizure (Pen.Code, § 1538.5) was granted, and the information was ordered dismissed (Pen.Code, § 1385). The People appeal. (Pen.Code, § 1238, subds. (a)(1) and (a)(7).)

The motion to suppress was submitted on the transcript of the preliminary examination. At that hearing only two witnesses testified, Mrs. Blanche Kirsch and Police Officer James Brown.

Mrs. Kirsch was the owner of a building in San Francisco containing two flats. She occupied the downstairs unit; defendant Blinn rented the upstairs unit, where she lived with her daughter, who was approximately six years old, and defendant Smith.

On February 24, 1970, Mrs. Kirsch returned from a shopping trip about 4 p.m. Shortly thereafter she heard Mrs. Blinn's daughter crying, and saw the girl sitting on the steps outside the upstairs flat. The girl told Mrs. Kirsch she had hurt her knee while dancing, but no injury could be seen. She also told Mrs. Kirsch she was alone in her apartment, and did not want to stay there because she was 'lonesome.' Mrs. Kirsch took the girl into her own flat, consoled her, and gave her some food. After about an hour, however, Mrs. Kirsch decided she could not continue to assume responsibility for the girl, and therefore called the police.

Officer Brown came in response to the call, and questioned the girl for 10 or 15 minutes. He learned she had been left alone in her apartment, had apparently fallen down and begun crying, and had been taken in by Mrs. Kirsch.

According to his testimony, Officer Brown then decided to ascertain whether the girl's mother had returned home in the interim. Accompanied by Mrs. Kirsch, he went upstairs and knocked on Mrs. Blinn's door, announcing his identification. There was no response. He nevertheless, directed Mrs. Kirsch to unlock the door with her key. He stepped inside and called Mrs. Blinn's name. Again there was no response. Yet the officer 'continued to go through the apartment,' entering each room in turn. On a nightstand in the bedroom he found a jar containing marijuana, and additional marijuana on a newspaper on the dresser.

Officer Brown looked through the rest of the flat, then confiscated the marijuana and returned downstairs. He transported Mrs. Blinn's daughter to the Youth Guidance Center, deposited the contraband at the police station, then drove back to Mrs. Kirsch's building. By that time Mrs. Blinn and Smith had returned to their flat. Officer Brown placed them under arrest for possession of marijuana; a small additional amount of marijuana was found on their persons.

It was stipulated the police had no warrant to search the apartment where the marijuana was found. Accordingly, the burden rested on the prosecution to show justification for that search. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23.)

The People do not seek to sustain the search on the ground it was incident to a lawful arrest or accomplished with consent. ¹ Rather, the People invoke the doctrine of 'necessity' derived from such cases as People v. Roberts (1956) 47 Cal.2d 374, 303 P.2d 721, People v. Clark (1968) 262 Cal.App.2d 471, 68 Cal.Rptr. 713, and People v. Gonzales (1960) 182 Cal.App.2d 276, 5 Cal.Rptr. 920. We recently reviewed the facts of those cases in Horack v. Superior Court (1970) 3 Cal.3d 720, 725, 91 Cal.Rptr. 569, 572, 478 P.2d 1, 4: 'in People v. Roberts, we stated that '(n)ecessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose.' (47 Cal.2d at p. 377, 303 P.2d at p. 723.) The 'necessity' in Roberts was that police heard a moaning sound as if from a person in distress and entered defendant's apartment to render aid; the evidence sought to be suppressed was discovered in plain sight after the valid emergency entry. Similarly, in Clark, police entered the defendant'sapartment because circumstances apparent to the officers indicated the 'probability that a woman within the apartment was the unwilling victim of some criminal act.' (262 Cal.App.2d 471, 476, 68 Cal.Rptr. 713, 717.) And in Gonzales, a police officer discovered marijuana in a search for identification in the clothing of a man found seriously injured with an abdominal stabbing wound.'

The People concede, as they must, that in the present case there was no emergency similar to that prevailing in Roberts and the cases cited. They contend, however, that the rule should be extended to include the 'necessity' which assertedly arose when Officer Brown was faced with the quandary of what to do with a six-year-old girl who had been left alone in her apartment by her mother and had been given temporary shelter by a neighbor.

The solicitude of the police for the girl's safety and welfare was of course commendable. But the police must also be concerned with the interest of her parent in the security and privacy of her home, an interest expressly protected by constitutional command. (U.S.Const., 4th Amend.; Cal.Const., art I, § 19.) The issue, therefore, is not simply whether the conduct of Officer Brown might have been 'reasonable' under all the circumstances, but whether the People have shown that his entry into Mrs. Blinn's home falls within one of the 'few specifically established and well-delineated exceptions' to the warrant requirement. (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, accord, Vale v. Louisiana (1970) 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409; Camara v. Municipal Court (1967) 387 U.S. 523, 528--529, 87 S.Ct. 1727, 18 L.Ed.2d 930, and cases cited.) Among those exceptions is the emergency doctrine. (Vale v. Louisiana, supra, 399 U.S. at p. 35, 90 S.Ct. 1969.) But the exception must not be permitted to swallow the rule: in the absence of a showing of true necessity--that is, an imminent and substantial threat to life, health, or property--the constitutionally guaranteed right to privacy must prevail.

Here the People fail to make such a showing. In their brief they attempt to paint a picture of a child in distress, crying,...