People v. Superior Court for Alameda County
| Decision Date | 31 October 1977 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF ALAMEDA, Respondent; Eldridge CLEAVER, Real Party in Interest. Leroy Eldridge CLEAVER, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF ALAMEDA, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 41199 and Civ. 41132. |
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for petitioner/real party in interest, State of California.
Marcus S. Topel, John W. Keker, Kipperman, Shawn, Keker & Brockett, San Francisco, for real party in interest/petitioner, Eldridge Cleaver.
These consolidated matters are before the court on cross-petitions for writ of mandate that each seek review of rulings adverse to the respective petitioner in connection with the accused's motion to suppress evidence. (See Pen.Code, § 1538.5, subds. (i) and (o ).) They involve the constitutional validity of three searches conducted by the Oakland Police Department on April 7, 1968. At a hearing in the respondent court, a search of the basement of a residence, which occurred at approximately 8 a. m., and a contemporaneous search of an automobile were held invalid, and evidence obtained during those searches was ordered suppressed as evidence at the trial of defendant. The People seek mandamus compelling the respondent court to reverse its ruling as to the admissibility of the evidence seized during these two searches. At the same hearing, the respondent court ruled that an earlier search of the same basement at about 2 a. m. was without constitutional fault, and that certain evidence seized during that search was admissible at the defendant's trial. He seeks mandamus to compel the respondent court to reverse its ruling as to the admissibility of evidence seized during that search.
The People, in support of the favorable ruling on the early morning search and in attacking the adverse ruling on the later search of the basement, contend that the defendant has no standing to challenge those searches; and that, in any event, neither Cleaver nor the owner of the premises had a reasonable expectation of privacy in the basement, and that therefore the searches were reasonable and lawful under the circumstances of the case. The defendant below insists that he had standing to question the validity of both searches of the basement, and that the trial court erred in sanctioning the warrantless search in the early morning hours. With respect to the search of the automobile, the People claim that defendant's attack on the validity of the search is foreclosed by a decision in another case, and that in any event there was probable cause to impound and search the vehicle without a warrant.
Except as noted below (see part I-A), the facts are not disputed. The People refer to "The Undisputed Facts" in their petition, and the defendant in his petition states, "The significant facts are not in dispute." The scope of our review has been defined as follows: In view of the record in this case we test the uncontradicted facts and the inferences therefrom in favor of defendants against the constitutional standards of reasonableness.
We conclude for reasons set forth below, that the question of standing to sue is not fairly presented by the record, and that in any event both searches of the residence were reasonable under the circumstances. The articles found in the automobile have been found to have been properly seized by the police by a decision of this court with respect to the rights of others who respectively owned and had dominion over the vehicle. Although the extent to which this defendant may vicariously attack that finding has been questioned, we have reexamined the circumstances surrounding the seizure and search of that vehicle as revealed by this record. We conclude that, in any event, the search of that vehicle was, as has been adjudicated, proper.
I
We first address the searches of the residence. The facts are set forth as they appear in the defendant's motion to suppress, as stipulated to by the district attorney, and as revealed by the testimony and stipulations adduced at the evidentiary hearing on the motion to suppress. The People's contention that all matters reflected in the testimony before the grand jury should have been considered by the trial court is discussed below.
The defendant is charged with three counts of attempted murder, and three counts of assault with a deadly weapon upon police officers. The charges stem from an alleged assault on two officers, Darnell and Jensen, at approximately 9 p. m. on April 6, 1968, on the street near 2905 Union Street in Oakland, and from a second incident about a block away when the defendant and a companion were besieged in the basement of 1218 28th Street.
At approximately 9 p. m. on April 6, 1968, officers Darnell and Jensen of the Oakland Police Department were on patrol in the vicinity of 2095 Union Street, Oakland, California. The officers reportedly had been given an assignment on Union Street, but when they drove up gunfire erupted before they even got out of the car. Both officers were wounded, and a gun battle ensued as other Oakland officers were summoned to the scene and effectively sealed off the area.
Six unnamed persons (who subsequently became co-defendants) were arrested, and the defendant and his companion were trapped in the basement of the residence at 1218 28th Street. The residence belonged to Nellie Pierre, who was carried from the house by police officers during the 90 minute period during which police laid siege to the basement where the two were cornered. The defendant was subsequently arrested, at about 11 p. m., after tear gas cannisters had set the residence afire and driven him and his companion from the basement. The companion was killed in the course of making the arrest.
Police technicians McCurdy and Hussey arrived at the scene after the arrest, at about 11:30 p. m.; the area had already been cordoned off and sealed. At the time of arrival, firemen were in the process of completing their duties of putting out the fire. Officer McCurdy and Officer Hussey put on gas masks while the firemen were in the mopping up process and entered the basement. It was very difficult to see anything through the gas mask and there was a large amount of tear gas in the building, so they left the basement and waited for the tear gas to subside and for the smoke to subside.
After the first entry, the officers were aware that there were no additional persons or hostages within the basement.
The officers reentered the premises at about 2 a. m. when the gas had partially cleared; the purpose of the reentry was primarily to look for physical evidence. When they reentered the premises, they saw a burnt AR-15 rifle in the rubble, and photographed and recovered it.
At the time they were in, the tear gas was still quite strong and they were crying. In fact, their eyes were watering and burning. They looked around briefly while they were in there. They also removed a tear gas cannister that was still alive, and put it in the bomb disposal box. Later it was disposed of by the bomb squad at the airport.
Since they had not been able to conduct a thorough search because of the conditions, they secured the area, sealed it off with an officer on guard. Then they went about other duties at that time.
In addition to the partially burned AR-15 rifle, the officers recovered five spent cartridge casings and three unfired .223 caliber shells during the 2 a. m. search.
Later, at about 7 a. m., Sergeant Reed arrived and was assigned to search the basement for evidence. At about 8 a. m. he entered the basement. There was about three inches of water on the floor and the basement was all charred, dirty, just a rubble of stuff. There was still smoke and a residue of tear gas in the air.
Moore observed a sleeve or collar of a jacket protruding above the murky (opaque) water and then began digging about in the water. Two jackets, ammunition and other miscellaneous items in the jacket pockets were recovered, as well as pocket cartridge belts.
The People stipulated that there was no search warrant for any of the entries and searches of the basement; neither was there evidence of express consent by the residence for the searches.
-A-
In his notice of motion defendant, after stating the grounds for the motion, recited: "This motion...
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