People v. Superior Court (Bowden)

• Decision Date: 30 December 1976
• Citation: 135 Cal.Rptr. 306,65 Cal.App.3d 511
• 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 LOS ANGELES, Respondent; Mark Douglas BOWDEN et al., Real Parties in Interest. Civ. 48631.

Page 306

135 Cal.Rptr. 306

65 Cal.App.3d 511

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Mark Douglas BOWDEN et al., Real Parties in Interest.

Civ. 48631.

Court of Appeal, Second District, Division 1, California.

Dec. 30, 1976.

Hearing Denied Feb. 23, 1977.

John K. Van De Kamp, Dist. Atty., Harry B. Sondheim, Head, Appellate Division, and Donald J. Kaplan, Deputy Dist. Attys., for petitioner

Charles Lloyd, Los Angeles, for real party in interest Everett Derrell Brumfield.

Wilbur F. Littlefield, Public Defender, Harold E. Shabo, Irwin Pransky, and G. Keith Wisot, Deputy Public Defenders, for real party in interest Carl Edward Duckett.

Richard A. Walton, Los Angeles, for real party in interest Maurice Duckett.

Donald R. Wager, Los Angeles, for real party in interest Raymond Mack.

Joseph P. Argenta, Santa Monica, for real party in interest Mark Douglas Bowden.

INTRODUCTION

HANSON, Associate Justice.

The People seek a statutory writ of mandate pursuant to Penal Code section 1538.5, subdivision (o), to compel the superior court to deny real parties' in interest motions to suppress evidence which was seized in a garage adjacent to defendant Bowden's home without a search or arrest warrant. The superior court, following a full de novo hearing, had granted defendants' motions to suppress the evidence upon the basis that as a matter of law the police had no authority to order the five defendants (real parties in interest) from the garage after accepting as true the testimony of the police officers and refusing credit to defense testimony.

THE CASE

The five defendants, Mark Douglas Bowden, Everett Derrell Brumfield, Carl Edward Duckett, Maurice Duckett, and Raymond Mack (real parties in interest) (hereinafter defendants), are charged with one count of murder (Pen.Code, § 187), six counts of robbery (Pen.Code, § 211), and one count of burglary (Pen.Code, § 459).

On April 1, 1976, a five day de novo hearing was commenced by the superior court on defendants' motion to suppress evidence consisting of approximately 57 items of property seized in a garage adjacent to defendant Bowden's home on August 29, 1975, as well as 'all items that were seized as a result of a search warrant that was executed subsequent to the initial seizure' pursuant to Penal Code section 1538.5.

Following the hearing on April 8, 1975, the court below granted defendants' motion to suppress the evidence. The court based its ruling on its conclusion that the police officers had no right to order the defendants to come out of the garage. The court stated it based its conclusion solely on the testimony of the police officers and gave no credence to the testimony of defense witnesses. ¹

The People timely filed a petition for writ of mandate ² pursuant to Penal Code section 1538.5, subdivision (o), to compel the court below to deny defendants' motion to suppress.

THE FACTS

Since the court below ruled as a matter of law on the testimony of the police officers only and afforded no credence to the testimony of defense witnesses, we focus on prosecution testimony and need not summarize the testimony of defense witnesses:

The reporter's transcript reflects that in a telephone conversation with an informant, who refused to identify himself, Police Officer Gary Zerbey was told the names of five persons (Mark Bowden, Derrell, Kenneth and Ricky Brumfield and Reggie) who committed several burglaries in a particular area along Eighth Avenue between Slauson and Florence in Los Angeles. According to the informant, the stolen property, consisting of television sets, cameras, stereo equipment, silverware, and guns, was in a garage adjacent to the home of defendant Bowden, one of the five named by the informant. The informant told Officer Zerbey that 'they were getting the property ready to move out.' A check of police records revealed recent burglaries in the Eighth Avenue area described by the informant and the property stolen matched the description of property provided by the informant.

Officer Zerbey had earlier investigated an August 9, 1975, robbery in which shots were fired and a revolver stolen in a previous burglary was recovered at the scene. Defendant Bowden had been arrested as one of the three involved in the August 9 robbery, but defendant Bowden, then a juvenile, had been released. Bowden had, however, failed to appear for a scheduled interview with Officer Zerbey. The officer did not know the identity of the other two suspects in that August 9 robbery but believed that they might be connected with the stolen property mentioned by the informant.

Initially intending to question defendant Bowden about that August 9 robbery, the possibility of stolen property in the garage, and perhaps to obtain consent to search the garage, Officer Zerbey and two additional officers, who had been fully briefed on all facts known to Officer Zerbey, went to defendant Bowden's residence. Upon arrival, the officers observed an unattached garage about five feet to the rear of the house and that a driveway led from the street to the garage. While Officer Zerbey knocked on the front door of the home, Officer Lawrence Skiba whose police badge was visible on his street jacket proceeded up the driveway in order not to be within eyesight of whoever opened the front door. The other officer remained where he could observe the front door.

Two of the defendants came out of the garage and looked at Officer Skiba who by then had walked up the driveway to a place near the side door of the house. The two yelled, 'Look out! The Cops!' and began to run. Officer Skiba yelled, 'Hold it!' but the two fled back into the garage they had just exited. From outside the garage, Officer Skiba could 'hear a number of voices inside, yelling, 'Pigs. What are the fucking pigs doing here? " He could also hear the sounds of furniture being moved. Officer Skiba was unable to determine from the emitting sounds how many persons were in the garage but 'heard multiple voices.'

Following is the testimony of Officer Skiba in respect to his state of mind and events that followed.

'Q Okay. After hearing these noises, then what was the next thing that you did?

'A I put myself against the side of the garage, and I yelled, 'Pete'--who was my partner--and then I said 'Police. Come out.'

'Q All right. Now, what was your purpose for ordering the occupants of the garage to come out?

'A I wanted to talk to the two gentlemen that ran away from me, and I did not want to go into the garage after them.

'Q Why?

'A I didn't know how many were in there. With the prior information that there was possibly guns in there, I didn't want to go in there and get blown up.

'Q Did you consider the possibility that one or more of the persons in there may have been the missing robbery suspects?

'A Yes.

'Q Did you consider the possibility that one or more persons may be attempting to conceal the nature of--the type of evidence suggested by the phone call which Investigator Zerbey informed you of?

'A Yes, with the moving of furniture and everything in there.

'Q All right. Now, you said that you did order the people inside to come out?

'A Yes.

'Q Can you tell us your exact words on that, if you can recall?

'A I said, 'Police. Come on out.'

'Q And did anyone come out?

'A There was a short hesitation, but five people did exit the garage.'

Officer Skiba also testified that he ordered the occupants of the garage to come out for purposes of investigation for robbery and receiving stolen property and because he was concerned that there might be someone around in the garage who might shoot him.

As Officer Skiba thought that there might be more persons still in the garage, Officer Skiba entered the garage and in the course of his search for additional suspects observed the property which is the subject of the motion to suppress.

ISSUE

The critical issue presented is whether or not the police officers acted reasonably and thus lawfully under the circumstances in ordering defendants out of the garage.

DISCUSSION

We 'cannot presume that the facts were resolved against the People or that, contrary to its own indication, it (the trial court) disbelieved the (officer's) testimony. (Citations.)' (People v. Manning (1973) 33 Cal.App.3d 586, 603, 109 Cal.Rptr. 531, 543.)

Defendants' preliminary contention that Officer Skiba had no authority to be in the driveway is without merit. Officer Skiba testified that he entered the driveway for safety and in particular in order to have better cover in the event that there was shooting at the front door; that he observed the gate to the driveway only after he was in the driveway and that it (the gate) was open; and that he was in the driveway near the side door to the house when he first saw the two defendants coming from the garage. There is nothing in the record to indicate that Officer Skiba had not followed a route normally used for We turn to the key issue upon which the court below based its determination as a matter of law, i.e., that the officers 'had no authority to order the defendants out of the garage.'

access to the house. There was no entry into an area foreclosed to the public as was the case in Vidaurri v. Superior Court (1970) 13 Cal.App.3d 550, 91 Cal.Rptr. 704, in which an officer entered an enclosed back yard by opening the gate. There is nothing remotely similar in the facts of the instant case to the facts in Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33, in which an officer entered upon private property and peered through a small opening in a window shade to observe activities within a residence. Here the two defendants could not demonstrate any reasonable expectation of privacy when they left a garage visible from the street.

The People contend that such authority did exist as Officer Skiba had the right to temporarily detain...