People v. Tenney

• Decision Date: 19 April 1972
• Docket Number: Cr. 9386
• Citation: 25 Cal.App.3d 16,101 Cal.Rptr. 419
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Carleton Warren TENNEY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 419

101 Cal.Rptr. 419

25 Cal.App.3d 16

PEOPLE of the State of California, Plaintiff and Respondent, v. Carleton Warren TENNEY, Defendant and Appellant.

Cr. 9386.

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

April 19, 1972.

Rehearing Denied May 15, 1972.

Hearing Denied June 15, 1972.

James H. Wolpman, Palo Alto, for defendant-appellant.

Evelle J. Younger, Atty. Gen., of California, Robert R. Granucci, Richard N. Light, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

MOLINARI, Presiding Justice.

Following the denial of his motion to suppress evidence made pursuant to Penal Code section 1538.5, defendant entered a plea of guilty to violation of Health and Safety Code section 11530 reserving his right to appeal from the denial of the motion as provided in Penal Code section 1538.5, subdivision (m). Imposition of sentence was suspended and defendant was placed on probation for the period of three years on condition that he serve six months in the county jail. Defendant appeals from the order denying his motion to suppress pursuant to Penal Code section 1538.5 and from the order admitting him to probation. ¹

On January 24, 1970, Officer Denny Roberts of the Menlo Park Police Department obtained the issuance of a search warrant to search the persons of Jonathan Weidman, Robert Garrett 'and other unidentified persons' and the premises at 206 Santa Margarita Avenue in Menlo Park. At about 9:15 p.m. on that day Roberts, eight other police officers and a police matron, went to the premises to execute the warrant. Two of the officers were dressed in standard police uniforms, i.e., dark blue trousers, a light blue worsted shirt with a metal badge on it, and a gun belt at the waist. Three of the officers were wearing a new Menlo Park police uniform consisting of black or green slacks, a green blazer with a white cloth patch on the left breast pocket, and a shirt and black tie. The remaining officers were dressed in plain clothes. All of the officers were armed.

The officers entered the premises, searched the house, and found marijuana in every room of the house except the bathroom and the dining area, in quantities ranging from small amounts up to two bricks. Approximately one-half hour after the police entered the premises, defendant came to the front door of the house. The evidence is in dispute over whether the door was closed but unlocked or slightly ajar, but, in any event, defendant opened it, looked inside for a few seconds, turned around and ran from the premises. He was pursued by Roberts and two other officers, and after running about 10 to 15 feet, stopped upon command of one of the officers. Roberts identified himself as a police officer and placed defendant under arrest for 'suspicion of visiting a house where narcotics were used, sold and distributed.' Defendant was then taken back into the house and searched. This search produced the marijuana which forms the basis of the instant charge.

At the time defendant arrived at the premises and looked inside the police were in the process of searching the occupants, whom they had lined up facing the wall in the dining area with their hands outstretched. This area was visible from the front door. Some of the officers had removed their coats, thus making the police insignia invisible and their holstered weapons visible. None of the officers' guns were out of their holsters. One of the officers in standard police garb was standing in the middle of the dining area. None of the officers identified themselves to defendant as policemen, but Roberts testified that one of the officers 'hollered halt.'

Defendant testified that as he looked into the premises he saw people lined up against the wall and men who were armed and had tattoos on their arms. At that moment Weidman (one of the persons named in the search warrant) stated to him, 'I'm sorry you had to walk in on this' and one of the armed men said, 'Come right in.' He stated it was then that he ran.

Defendant admitted in his testimony to having seen marijuana in the house on more than one occasion in the past and that he had marijuana in his pocket when he was arrested and searched. He testified that he was not a resident of the premises and that on the night of the subject incident he had gone there to visit Robin Russ, a young lady who lived there. Within the past two months he had visited the house 10 to 20 times. When queried as to why he hadn't knocked before opening the door he stated that it was not customary to knock at the entrance door but to just walk in. In response to the query why he ran from the premises, defendant stated it was an instinctive reaction prompted by his fright at seeing men with guns and tattoos.

Roberts testified that police surveillance disclosed that a very large number of persons came to the subject premises and that many of them entered without knocking. He stated that at the time he arrested defendant he did not believe defendant to be a resident of the premises. When asked to explain the basis for defendant's detention and arrest Roberts explained: 'I felt that his actions in opening the door, without knocking, of a house where narcotics were used, obviously used, and then his actions in running immediately from the scene were a little bit suspicious.'

Defendant contends that the warrant under which he was arrested was too broad to be constitutionally and statutorily valid because it referred to 'unidentified persons.' He asserts, further, that if this phrase is interpreted to mean 'unidentified residents' it is too narrow to cover him since he was neither a resident nor were the police justified in believing he was. The People contend that the subject phrase means 'unidentified residents' in the context of the warrant and the supporting affidavit. In this connection we observe that the affidavit asks for a search of 'Jonathan Weidman and Robert Garrett and unidentified residents' and on four occasions refers to 'unidentified residents.' The warrant, however, commands a search of Weidman, Garrett and 'other unidentified persons.'

The lower court interpreted the phrase in question to mean 'unidentified residents.' In making such an interpretation the trial court was passing upon a question of law since it was dealing with whether the warrant was void and irregular on its face because it did not sufficiently describe the persons to be searched. (See Aday v. Superior Court, 55 Cal.2d 789, 795--797, 13 Cal.Rptr. 415, 362 P.2d 47; People v. Govea, 235 Cal.App.2d 285, 297, 45 Cal.Rptr. 253; Dunn v. Municipal Court, 220 Cal.App.2d 858, 869, 34 Cal.Rptr. 251; Saunders v. Municipal Court, 240 Cal.App.2d 563, 565, 49 Cal.Rptr. 763.) Under well-established principles we are not, of course, bound by the trial court's interpretation. (See Parsons v. Bristol Development Co., 62 Cal.2d 861, 865--866, 44 Cal.Rptr. 767, 402 P.2d 839; Estate of Russell, 69 Cal.2d 200, 213, 70 Cal.Rptr. 561, 444 P.2d 353.)

The constitutional mandate is that 'no 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., 4th Amend. (binding on the states by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081); Cal.Const., art. I, § 19.) The mandate is also to be found in section 1525 of the Penal Code which provides that the warrant cannot be issued but upon probable cause supported by an affidavit naming or describing the person, and particularly describing the property and place to be searched. (See People v. Keener, 55 Cal.2d 714, 719, 12 Cal.Rptr. 859, 361 P.2d 587 (overruled on other grounds in People v. Butler, 64 Cal.2d 842, 844--845, 52 Cal.Rptr. 4, 415 P.2d 819); Saunders v. Municipal Court, supra, 240 Cal.App.2d 563, 565, 49 Cal.Rptr. 763.)

No California cases have been found dealing with the particularity with which a warrant must describe persons. We therefore must draw an analogy from the cases which have dealt with the particularity by which premises and property must be described in search warrants. ² Accordingly, the requirement of particularity is met when the person is described with 'reasonable particularity.' (People v. Walker, 250 Cal.App.2d 214, 220, 58 Cal.Rptr. 495; Dunn v. Municipal Court, supra, 220 Cal.App.2d 858, 868, 34 Cal.Rptr. 251; Atlas Finance Corp. v. Kenny, 68 Cal.App.2d 504, 514, 157 P.2d 401.) The question confronting us, then, is whether the phrase 'unidentified persons' describes with reasonable particularity the persons to be searched. We have concluded that it does not.

In Stern v. Superior Court, 76 Cal.App.2d 772, 784, 174 P.2d 34, it was held that the description 'other evidence' in an affidavit and search warrant for the purpose of searching a safe-deposit box could not include the sum of $50,000 found in the box. ³ In People v. Mayen, 188 Cal. 237 242, 205 P. 435, 437, the supporting affidavit referred to the property to be seized as 'personal goods and property, to-wit, certain paraphernalia' and the warrant contained no description other than 'certain personal property used as a means of committing a public offense, to wit, attempted grand larceny.' The court held the warrant invalid under article I, section 19 of the California Constitution, and Penal Code sections 1525, 1528, and 1529.

In the light of Stern and Mayen it appears that in the present case the designation 'unidentified person' is too broad. The phrase would allow an unlimited search of persons and thus impregnates the warrant with the infirmity present in a 'general warrant,' an infirmity that has long been condemned. (See Aday v. Superior Court, supra, 55 Cal.2d 789, 796, 13 Cal.Rptr. 415, 362 P.2d 47; People v. Berger, 44 Cal.2d 459, 461, 282 P.2d 509.) Since the phrase in question does not describe the person to be seized with sufficient particularity to meet the constitutional and statutory requirements it is...