People v. Webb

• Decision Date: 31 December 1973
• Docket Number: Cr. 11297
• Citation: 36 Cal.App.3d 460,111 Cal.Rptr. 524
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gary WEBB et al., Defendants and Appellants.

Page 524

111 Cal.Rptr. 524

36 Cal.App.3d 460

PEOPLE of the State of California, Plaintiff and Respondent, v. Gary WEBB et al., Defendants and Appellants.

Cr. 11297.

Court of Appeal, First District, Division 4, California.

Dec. 31, 1973.

Hearing Denied Feb. 27, 1974.

Dennis J. Roberts, Michael J. Kennedy, Kennedy & Rhine, San Francisco, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Robert R. Granucci, Jerome C. Utz, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

DEVINE, Presiding Justice.

This is an appeal by three defendants, Webb and two Schlemmes, who had pleaded guilty to certain counts of an indictment, but who nevertheless are entitled to appeal on the ground of illegal search under the provisions of Penal Code section 1538.5. All three appellants pleaded guilty to count one of the indictment, which charged possession of cocaine and methadone. (Health & Saf.Code, § 11500.) Webb also pleaded guilty to count four which charged receiving of one item of stolen property, an oil painting. (Pen.Code, § 496.)

It is convenient to divide the discussion into two parts, the first having to do with evidence which was found in Webb's bedroom, and the second with evidence found elsewhere on the premises at 1530 Lawton Street, San Francisco.

I. THE WEBB ROOM

The officers entered the house properly, identifying themselves and stating the fact that they had a search warrant. They went to what we shall call the Schlemme bedroom. An officer made an appropriate announcement pursuant to Penal Code section 1531. The officer then knocked loudly on the Webb bedroom door. Nothing happened, so the officer knocked again. There was no response, and, after waiting 30 to 45 seconds, the officer kicked in the door. He observed a man on a bed in the room. The man identified himself as Gary Webb. The officer advised Webb that he was a police officer and that he had a search warrant for the premises. The officer then went over to the bed, reached under the mattress and pulled up a fully loaded .25 automatic pistol. The officer also observed 'large amounts of narcotics lying all over the room.' The stolen picture was found hanging in Gary Webb's bedroom.

Section 1531 on the Penal Code was not complied with. This section refers to 'any outer or Inner door' (emphasis added) and plainly was applicable to the bedroom door. Respondent states that section 1531 does not require an officer to knock on every door, state his identity and intentions, and wait for a response. Under certain circumstances, this is so. In People v. Livermore, 30 Cal.App.3d 1073, 106 Cal.Rptr. 822, the officers entered the home in full compliance with section 1531. Thereafter, one of the officers walked into a bedroom, the door to which was open, and announced himself as a police officer as he entered. This was held to be substantial compliance. There was not present the peril which is produced by unproclaimed intrusion. But the case does not justify the conclusion that section 1531 does not apply to inner doors. The opinion does not say so, and we deem it could not because of the explicit terms of section 1531.

There are, to be sure, two exceptions to the knock and notice rule: (1) where there has been substantial compliance; and (2) where there is excused noncompliance. (People v. Hall, 3 Cal.3d 992, 998, 92 Cal.Rptr. 304, 479 P.2d 664.) But there was not substantial compliance by the mere knocking and waiting. Minimum compliance with the rule includes an effort by the officers, prior to entry, to communicate to persons inside that they seek to be admitted in order to discharge their duties as law enforcement officers. (Greven v. Superior Court, 71 Cal.2d 287, 293, 78 Cal.Rptr. 504, 455 P.2d 432; Duke v. Superior Court, 1 Cal.3d 314, 320, 82 Cal.Rptr. 348, 461 P.2d 628; Garcia v. Superior Court, 29 Cal.App.3d 977, 981--982, 106 Cal.Rptr. 98.) There is no evidence at all that failure to comply with the statute was excusable on the ground of increased peril to the officers or to anyone else, or of imminent destruction of evidence.

People v. Peterson, 9 Cal.3d 717, 108 Cal.Rptr. 835, 511 P.2d 1187, is not heldful to respondent. In that case, the officers gave the necessary notice but committed a technical break-in by opening an unlatched screen door before the notice was given. Because the officers had full view of the occupants of the residence and the officers were immediately visible to those persons, there was neither violation of privacy of the individuals in their own residence nor danger of injury to the officers or to the occupants resulting from sudden confrontation.

No satisfaction is gained from the individual case which a defendant, admittedly guilty of receiving stolen property and of a narcotics offense, prevents the use of evidence against him by reason of failure of an officer to comply with the statute, particularly when the police have obtained a search warrant and have complied at one or two stages of their entry. But it has been said, in People v. Rosales, 68 Cal.2d 299, 304, 66 Cal.Rptr. 1, 5, 437 P.2d 489, 493: "However much in a particular case insistence upon such rules may appear as a technicality that insures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness. The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application." Besides, that particular application of the exclusionary rule which results from noncompliance with either Penal Code section 844 or Penal Code section 1531 is somewhat different from the application in other cases, in that it is intended to give a benefit to innocent persons and, more particularly, to the police officers themselves, that is over and above the general protection of privacy which is secured by the Fourth Amendment. A perfectly innocent person may be within the closed door; or a person within, whether guilty or innocent, may respond to the forced entry with gunfire. One particular officer may be willing to risk the chance of sudden violence, but the rule with its exclusionary result is also directed toward the protection of his fellow officers and to other persons by reason of its deterrent effect. The fact that the omission to give the required announcement may have resulted from mistake or inadvertence does not alter the case. It is necessary to suppress the evidence which was taken from the Webb bedroom.

II. THE SEARCH WARRANT

Although the evidence taken from the Webb bedroom must be suppressed, reference to the objects which were found therein must be made in discussing the search warrant, not by way of confirming any of the statements in the affidavit, for a search may not be justified by what it turns up, but by way of showing the grounds upon which the warrant itself was issued and the probable cause for its issuance. There was other evidence found in the premises than that which was in the Webb room. Narcotics were found in the Schlemme bedroom, in the living room, and in the dining room. A grandfather clock and an antique bar were found in the living room. These were the subject of one of the receiving stolen property counts against Webb. Appellants' attack on this evidence necessarily is based on a challenge to the search warrant and the affidavit supporting it. This challenge is made (a) to the affidavit considered on its face, (b) on the reliability of the informant, and (c) on asserted omissions of information which it is contended should have been supplied in the affidavit.

A. The Affidavit Considered On Its Face

On April 18, 1972, a magistrate issued a search warrant on the basis of an affidavit prepared by affiant Gino Marionetti, a San Francisco police officer. The affidavit disclosed the following information:

1. Affiant had had several interviews with one John Doan, a heavy narcotics in custody on a burglary charge; the most recent interview occurred at the Hall of Justice of April 17, 1972.

2. Affiant knew John Doan was a reliable informant in that on April 13, 1972, Doan had provided information which led to the recovery of stolen items taken in a robbery from 2900 Broadway on April 6; Doan had provided additional information to the police on April 11, leading to the recovery of other stolen objects.

3. Doan informed affiant he had personally observed several stolen items at 1530 Lawton Street, which included a Morelli painting taken in a Kentfield, California burglary and valued in excess of $20,000. Doan told affiant that he had observed this painting hanging in the bedroom of the residence of 1530 Lawton Street, and described the painting as a picture of a farmhouse.

4. Affiant called the San Rafael sheriff's office about the Kentfield burglary and learned that a Morelli painting valued at $20,000 had been stolen.

5. Doan informed affiant that he saw a grandfather clock in the living room of the above residence and stated, without explaining, that the clock had been stolen in a Sausalito burglary. Doan also saw an antique bar on the premises, which had been stolen. Doan informed affiant the information regarding the painting, the clock and the bar being stolen was given to him by appellant Webb.

Doan advised affiant that narcotics were located on the premises at 1530 Lawton Street and that he had observed cocaine and heroin on the premises. He was able to identify the narcotics because he is a heavy user of narcotics. Doan stated he had made many purchases of narcotics from Webb on the premises over a two-year period, and that Webb exchanged 'dope' for various stolen items. Doan stated he made the purchases in various rooms in the house, such as the kitchen, bedrooms, and living room. Based on his experience in making these...