Swan v. Superior Court

• Decision Date: 29 May 1970
• Citation: 8 Cal.App.3d 392,87 Cal.Rptr. 280
• Parties: Robert Heath SWAN, Petitioner, v. SUPERIOR COURT of the State of California For the COUNTY OF LOS ANGELES, Respondent; The PEOPLE, Real Party in Interest. Civ. 35768.
• Court: California Court of Appeals Court of Appeals

Page 280

87 Cal.Rptr. 280

8 Cal.App.3d 392

Robert Heath SWAN, Petitioner, v. SUPERIOR COURT of the State of California For the COUNTY OF LOS ANGELES, Respondent The PEOPLE, Real Party in Interest.

Civ. 35768.

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

May 29, 1970.

Silber, Schwartz & Benezra, and Alfonso M. Bazan, Los Angeles, for petitioner.

Evelle J. Younger, Dist. Atty. of Los Angeles County, Harry Wood, Head, Appellate

Division, and Donald J. Kaplan, Deputy Dist. Atty., for real party in interest.

ALARCON, Associate Justice pro tem. ^*

Robert Heath Swan petitions for a writ of prohibition or mandate to require the Superior Court of Los Angeles County to vacate its order denying his motion to suppress the evidence obtained as a result of the entry of his premises on April 24, 1968.

FACTUAL BACKGROUND

On April 14, 1968, a fire occurred at the petitioner's residence located at 426 North Mirada, West Covina, California. Battalion Chief Ora M. Short of the West Covina Fire Department testified that when he first observed the residence the flames were 'coming through the front door under the eaves of the building, and to the rear; they had gone through the patio cover, and would be extending approximately ten feet above the patio cover.' The upper half of the front door was burned off. On the same date, after the fire was knocked down, the witness entered the residence. He observed heavy fire damage 'in the living room, dining room area' and high heat damage in the kitchen, hallway, and front entrance hall, and heavy smoke damage in the hall and the three bedrooms in the north portion of the house. A couch in the living room was completely burned. Fire Captain D. C. Andrus of the City of West Covina testified that he is assigned to the investigation of fires to determine if they were the result of arson. Captain Andrus entered the petitioner's residence at 9 a.m. on April 14, 1968, to conduct an investigation as to the cause of the fire. Captain Andrus determined that the fire was incendiary in origin and so notified the West Covina Police Department.

On April 24, 1968, Captain Andrus, a West Covina police officer, and Sergeant Carlberg of the Los Angeles County Sheriff's Office went to the residence to continue the arson investigation. The residence was entered; the officers did not have a search warrant. Photographs were taken of the fire damage inside the residence. It was stipulated at the hearing pursuant to section 1538.5 of the Penal Code that Sergeant Carlberg formed the opinion that the fire was incendiary in nature and was the product of arson based upon his examination of the inside of the premises on April 24, 1968.

Evelyn Siber, the owner of the property, testified that after the fire she went to the house every day. She kept some of her personal effects in the house after the fire. The house was not open to the public nor abandoned after April 14, 1968. The premises were boarded up to keep people out.

The petitioner testified that he resided at the premises at the time of the fire but did not reside there after April 14, 1968. Some of his personal effects were left at the location after the fire. The premises were not abandoned by him. The front door was boarded up by his son-in-law to secure the premises.

At the hearing before the trial court pursuant to Penal Code, section 1538.5 the petitioner sought the suppression of the testimony of Sergeant E. Carlberg concerning his observations made on April 24, 1968 within the petitioner's residence as well as the photographs of the interior of the building obtained on the same date.

In denying the petitioner's motion to suppress, the trial court made the following observations in support of its ruling:

'I think that in the evidence I have heard, the building was gutted by the fire and no one was living there, and it had been boarded up, true, but nobody's individual, personal privacy was intruded upon, and there is nothing here that offends the privacy or the right to privacy that anybody has.

'* * *

'But in this particular case they gathered not only that nobody lived there, but 'I distinguish it from a place where people are not in at the time, since they have a right to have the home free from intrusion, even when they are not there.

no one habitated the place. He had left. The wife had separated, and no one was living there, and there was nobody there.

'They may be away to a movie or entertainment, and they should have the protection, but when they are not living there and the place is gutted and boarded up, I see no offensive behavior.'

PROBLEM

The petitioner contends that the gutted building entered on April 24, 1968, was within the protection of the Fourth Amendment. Therefore all photographs and observations made on that date within the residence must be suppressed.

The people argue that the Fourth Amendment does not apply to a vacant building so damaged by fire that it is uninhabitable.

DISCUSSION

The trial court found that the house was gutted and no one was living on the premises at the time of the entry and search. The court did not find that the house was uninhabitable. However, it can be reasonably inferred from the court's finding that the house was gutted, that it was no longer habitable, since the verb 'gut' when used in connection with a building fire means 'to destroy totally the inside of' (Webster's Third New International Dictionary)...