Opinion
For Opinion Hearing see, 91 Cal.Rptr. 569 478 P.221.
Opinion on pages 638 to 657 omitted [*]
HEARING GRANTED
[86 Cal.Rptr. 139]Herbert M. Porter, Los Angeles, for petitioner.
Cecil Hicks, Dist. Atty., Michael R. Capizzi, and Oretta D. Sears, Deputy Dist. Attys., for respondent and real party in interest.
OPINION
KAUFMAN, Associate Justice.
Petitioner seeks a writ of mandate to compel the suppression of evidence after an order dated November 4, 1969 denying his motion to suppress evidence pursuant to Penal Code, section 1538.5.
The motion to suppress was submitted to the trial court on the transcript of the preliminary hearing, supplemented by additional testimony taken at the time of the hearing on the motion.
The record before us consists solely of the reporter's transcript of the preliminary hearing and the reporter's transcript of the hearing on the motion. This record does not include a copy of the motion, nor a copy of the information. We glean from the record that the petitioner is charged by an information containing two counts and that the second count, by amendment at the preliminary hearing, charges a violation of section 11530 of the Health & Safety Code (possession of marijuana).
[86 Cal.Rptr. 140]Petitioner contends that the evidence sought to be suppressed resulted from an unlawful search and seizure and from a forcible entry by the police without compliance with section 844 of the Penal Code; that the municipal court in which the preliminary hearing was had and which held petitioner to answer was without subject matter jurisdiction and that the prosecution engaged in unlawful forum shopping, thereby depriving petitioner of due process of law.
The Facts
On Saturday, June 28, 1969, Officer Thompson of the Newport Beach Police Department, while on patrol duty in a police vehicle, received a message on his two-way radio from the dispatcher informing him that a Mrs. Hamplin, whose address was 521 Riverside, Newport Beach, had called and reported that she had seen two 'hippie-type' individuals with sleeping bags enter into the residence located next door to her at 519 Riverside, which residence was known to Mrs. Hamplin to be 'vacant.' Officer Thompson proceeded to Mrs. Hamplin's residence and attempted to contact Mrs. Hamplin by knocking on the door, but received no answer.
As Officer Thompson was driving up to Mrs. Hamplin's residence, he noticed a woman about 45 years old getting into an automobile in front of said residence and driving away. Subsequently, he learned from another neighbor residing across the street that the woman he had seen leaving was Mrs. Hamplin.
Having been unable to contact the informant, Officer Thompson went over to the residence at 519 Riverside and, stationing another officer at the rear of the residence, Officer Thompson went up to the front door. He knocked on the door, announced his presence and identified himself by announcing 'Police Officer.' Standing in front of the door, he could see into the front room of the house through a window in the upper portion of the door. The room was carpeted, but otherwise contained no furniture or furnishings of any kind with the exception of a stereo speaker enclosure approximately three feet high, 15 inches wide and 15 inches deep, on top of which there was a stereo amplifier about five feet deep, 20 inches wide and 20 inches high. The stereo was turned on and emitting music 'quite loud.' Receiving no response, Officer Thompson tried the door and found it locked.
There was also a telephone in this room. Officer Thompson could not recall whether or not he could see the telephone when he looked through the window in the door. He did not recall seeing it at that time.
Officer Thompson then proceeded to the rear of the house, at which time he was joined by another officer, Sergeant Petersen. The other officer who had been stationed at the back door then left. Officer Thompson and Sergeant Petersen approached the rear door and knocked. They received no response. They then tried the door and found it unlocked. Officer Thompson opened the door, and before entering, again announced 'Police Officer.' Still receiving no response, Officer Thompson and Sergeant Petersen entered the house with guns drawn for their protection and conducted a room-by-room, and closet-by-closet search for the persons who had reportedly entered the house and whom the officers believed to be hiding in the house. The entry was made at approximately 1:00 p.m.
Officer Thompson testified that the reason he sought entry was to 'ascertain if there were people in the dwelling that did not have the authority to be inside.' He said that he thought 'there might be possibly a burglary being committed inside the residence.' However, he admitted on voir dire that he saw nothing to indicate that a burglary was going on at the time. He also testified that he interpreted the original [86 Cal.Rptr. 141]report of Mrs. Hamplin as indicating a 'possible illegal entry.' He further candidly stated that, prior to entry, except for the unsuccessful attempt to communicate with Mrs. Hamplin, he made no attempt to ascertain the true ownership of the residence nor to ascertain whether the utilities or telephone had been turned on and that he had never heard of a vagrant just going into a house to sleep, having expensive stereo equipment, nor had he ever heard of anybody leaving equipment that valuable when they moned out of a house leaving it vacant. He also testified that the appellation 'hippie-type' had no special significance to him and that he did not know what Mrs. Hamplin meant by 'hippie-type.' Additionally, he testified that when he knocked at the front door and announced that he was a police officer, he did not see or hear any indication that anybody heard him and that the same was true with respect to his knock and announcement at the back door. He further testified, however, that he entered 'Looking for individuals hiding; figured that they probably heard me and were hiding if they were in there.'
The room-by-room, closet-by-closet search for persons in hiding by Officer Thompson and Sergeant Petersen disclosed no one in the house but did reveal certain contraband, papers and other evidence. The facts surrounding the discovery of this evidence are hereinafter detailed. At a point when the search for persons in hiding was about concluded, the other officer who had originally been stationed at the rear door returned and joined Officer Thompson and Sergeant Petersen, and, after the search for persons in hiding was concluded, Offecer Thompson, using the telephone in the living room, telephoned the police station and requested that Officer Epstein come to the residence. Upon Officer Epstein's arrival, accompanied by Investigator Spears, Officer Epstein and the other officers present conducted a further search of the residence disclosing additional contraband, papers and items. The circumstances of this additional search are more particularly detailed hereinafter.
The residence at 519 Riverside is not in an isolated area, but is located in a well-populated portion of Newport Beach. The judge who heard the 1538.5 motion took judicial notice of the facts that Newport Beach is a resort area in which the owners and rightful occupants of residences are often absent for substantial parts of the year and that it is not uncommon for the owners, upon leaving their resort homes, to take some of their furniture and leave some in their resort residence.
It would appear that the court could properly take judicial notice of these matters. (California Evidence Code, section 452; see Hom v. Clark, 221 Cal.App.2d 622, 637-638, 35 Cal.Rptr. 11; Varcoe v. Lee, 180 Cal. 338, 347, 181 P. 223; People v. Kutz, 187 Cal.App.2d 431, 434, 9 Cal.Rptr. 626.)
Officer Thompson testified that the rear door of the house opened into a rear bedroom and that upon entering and finding no one in the room, he checked the closet wherein people might be hiding. Finding no one, he then entered another rear bedroom, and finding no one there, he looked into the closet of that room, which was about six feet across and five and one-half feet high, had sliding doors and could, in the officer's opinion, hide three or four persons. On a shelf directly at eye level, Officer Thompson observed a little plastic 'Baggie' containing a green, leafy vegetable material that, in his opinion based on his past experience, was marijuana. He also observed some clothing hanging in the closet. Officer Thompson then left the bedroom, taking the contraband with him. He next looked into a 'linen type closet' that was two and a half to three feet wide and ran all the way from the floor to the ceiling. It had two sets of double doors. It was Officer Thompson's opinion that the bottom portion was big enough for a person to get into if he were crouched down. He opened the doors to the bottom portion, and, on the bottom shelf four or five inches from the floor he saw a cardboard box which, in turn, contained a shoe box. The [86 Cal.Rptr. 142]shoe box was sitting on top of a stack of papers and was positioned at an angle so that he could see its content. In the shoe box he saw another 'Baggie' which was wrapped in red paper that had been torn open. The officer could see that the 'Baggie' was quite full and that it contained green, vegetable material that he identified as more marijuana. He could also see a large, brick-shaped object, dark gray or black in color, that appeared to be 'sort of a porous, pumice effect that was compressed together.' From its appearance and from its strong, distinct smell upon his opening the 'Baggie' Officer Thompson believed the substance to be hashish. Officer Thompson took the cardboard box containing the shoe box and the contraband into one of the bedrooms he had previously been in and set it down in the middle of the floor. He observed on the floor some papers, loosely scattered around, including a 'bill of sale for the house and offer for sale' which had petitioner's name on it. Officer Thompson left the bill of sale on the floor where he found it.
About this time, the officer who had originally been stationed at the rear door returned, and Officer Thompson and Sergeant Petersen checked the bathroom and a third bedroom and its closet, still looking for persons in hiding. Officer Thompson testified that the closet in the third bedroom 'was about the last place there would be anybody hiding.' Officer Thompson then telephoned the station and requested that Officer Epstein come to the house.
Officer Epstein, assigned to the narcotics detail, testified that he came to the house along with Investigator Spears in response to Officer Thompson's call. Upon entering the back door of the house, the two officers were met by Officer Thompson and Sergeant Petersen. Officer Epstein first examined the contraband found by Officer Thompson. He confirmed Officer Thompson's identification of the contraband as marijuana and hashish and stated his opinion, based on his experience, that the quantities thereof indicated that it was possessed for the purpose of sale rather than consumption. He also viewed the papers found by Officer Thompson and confirmed that petitioner's name appeared thereon.
About two pounds of marijuana and one pound of hashish.
Officer Epstein then went into the closet of the back bedroom in which Officer Thompson had observed clothing hanging and searched the clothing. He found in the right front pocket of a black suede jacket a small cellophane 'Baggie' of hashish. He found in the same pocket a passport, international driver's permit, international vaccination certificate and a Hertz rental document, all bearing petitioner's name. He then proceeded to search the third bedroom. On the floor, he found a 'leather type pouch.' Inside the pouch he found a small pipe and a small piece of hashish. There was also a small overnight bag in the bedroom from which Officer Epstein took a passport in the name of Michael Turkington, an international vaccination book in the name of Michael Turkington, some German currency and a piece of paper with some writing on it. Officer Epstein also picked up from the floor of that bedroom some papers bearing the name Michael Turkington, including a letter from the State Board of Equalization, dated June 26, 1969, and a Combined State and Local Consumer Use Tax Return dated June 26, 1969, which Officer Epstein testified were in plain sight.
Officer Epstein then conducted a further search of the house, including the front room area and the bedroom having the rear door. In plain sight on the floor of the bedroom he found some papers, including a receipt from the California Department of Motor Vehicles bearing the name M. R. McCurdy. He also found in this bedroom a suitcase and a pair of brown leather boots. Inside one of the boots he discovered a flat piece of hashish.
Thereafter, after a surveillance of the residence by the officers, during which [86 Cal.Rptr. 143]none of the suspects appeared, the officers took possession of all of the evidence they had discovered and left.
Although not mentioned in direct examination, on cross-examination, Officer Epstein also testified to removing $12,000 in cash from the house. There is no testimony as to how, where or under what circumstances it was found. This money was subsequently turned over by Officer Epstein to the State Board of Equalization pursuant to an order therefrom. Inasmuch as the prosecution offered no evidence concerning the $12,000 at the preliminary hearing and, inasmuch as the record before us does not show that the motion to suppress was directed at this evidence, we do not deal with it further.
Petitioner was subsequently arrested in Laguna Beach, but details of his arrest are not a part of the record.
Search and Seizure
With respect to the activities of Officer Thompson and Sergeant Petersen during their search of the room and closets prior to the arrival of Officer Epstein, we are not involved with the problem of a general exploratory search or even a search for specific items of contraband. It is clear that these officers entered the house to look for persons that they believed to be hiding therein. 'During a lawful search of premises for persons believed to be in hiding, police officers may seize contraband evidence 'in plain sight' (People v. Roberts (1956) 47 Cal.2d 374, 379, 303 P.2d 721; People v. Gilbert (1965) 63 Cal.2d 690, 707, 47 Cal.Rptr. 909, 408 P.2d 365 [reversed on other grounds].) Under such circumstances there is, in fact, no search for evidence. (See Ker v. State of California (1963) 374 U.S. 23, 43, 83 S.Ct. 1623, 10 L.Ed.2d 726, 743; United States v. Rabinowitz (1950) 339 U.S. 56, 75, 70 S.Ct. 430, 94 L.Ed. 653, 665 (dissenting opinion of Justice Frankfurter).)' (People v. Marshall, 69 Cal.2d 51, 56, 69 Cal.Rptr. 585, 588, 442 P.2d 665, 668.)
With respect to the evidence discovered by Officer Thompson, therefore, the questions are: Was his entry and search for persons in hiding lawful and were the items he discovered in 'plain sight'?
The district attorney contends that the entry and search for persons believed to be in hiding were authorized by the duty of the police officers to investigate, detect and prevent crime and to protect property. We do not agree.
We recognize that police officers are guardians of the peace and security of the community and that it is their duty to investigate, detect and prevent crime and to protect lives and property. (People v. Gonzales, 182 Cal.App.2d 276, 279-280, 5 Cal.Rptr. 920; People v. West, 144 Cal.App.2d 214, 220, 300 P.2d 729.) It is true, of course, that in a proper case a police officer may enter where it reasonably appears to him necessary to do so to protect life or property. (People v. Roberts, supra, 47 Cal.2d 374, 377, 303 P.2d 721, and authorities there cited; Romero v. Superior Court, 266 Cal.App.2d 714, 718-722, 72 Cal.Rptr. 430; People v. Roman, 256 Cal.App.2d 656, 659, 64 Cal.Rptr. 268; People v. Gomez, 229 Cal.App.2d 781, 783, 40 Cal.Rptr. 616; and cf. People v. Bauer, 241 Cal.App.2d 632, 646-647, 50 Cal.Rptr. 687.) In all of the cases applying this doctrine, however, there existed an element of emergency substantiating the necessity. In the case at bench, there was no comparable emergency situation. The only property to be protected was the house, the carpeting and the stereo system, and the police officers saw nothing to indicate any immediate threat of damage or destruction, and the doctrine of apparent necessity to protect life or property is inapplicable.
Likewise, there are cases countenancing certain invasions based upon the duty of police officers to investigate, detect and prevent crime. (Terry v. State of Ohio, 392 U.S. 1, 22-23, 88 S.Ct. 1868, 1880-1881, 20 L.Ed.2d 889 [approaching and stopping person on a public street]; People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 582 [going to a residence to seek an interview]; People v. Martin, 45 Cal.2d 755, [86 Cal.Rptr. 144] 761, 290 P.2d 855 [going to an office and peeking through a mail chute]; People v. Mickelson, 59 Cal.2d 448, 454, 30 Cal.Rptr. 18, 380 P.2d 658 [stopping a vehicle and ordering persons to get out]; People v. Robinson, 269 Cal.App.2d 789, 792, 75 Cal.Rptr. 395 [entry into apartment through open door through which shotgun shells were visible after reports of firing and a wounded child]; People v. Clark, 262 Cal.App.2d 471, 475-476, 68 Cal.Rptr. 713 [entry into an apartment where officers had reasonable belief that woman was being subjected to sex crime]; People v. King, 234 Cal.App.2d 423, 432, 44 Cal.Rptr. 500 (cert. den. 384 U.S. 1026, 86 S.Ct.1957, 16 L.Ed.2d 1033 [entry onto porch and looking through a window]; People v. Gonzales, supra, 182 Cal.App.2d 276, 279-280, 5 Cal.Rptr. 920 [search for identification in pocket of seriously injured man]; and see generally, People v. Terry, 70 Cal.2d 410, 427-428, mod. 71 A.C. 101, 77 Cal.Rptr. 460, 454 P.2d 36.) Again, however, in all of the cases applying the doctrine there existed a substantial emergency, and we are apprised of no case which, in the absence of a substantial emergency, upholds the entry by police officers into a private residence by opening a closed door on the basis of the police duty to investigate, detect and prevent crime. The authorities indicate the contrary. 'The right to seek interviews with suspects or witnesses at their homes does not include the right to walk in uninvited merely because there is no response to a knock or a ring.' (People v. Haven, 59 Cal.2d 713, 717, 31 Cal.Rptr. 47, 50, 381 P.2d 927, 930.) "* * * [M]inor trespass, not involving entry into a building, may be justified as reasonable investigation." (People v. King, supra, 234 Cal.App.2d 423, 429, 44 Cal.Rptr. 500, 504, quoting from Collings, Toward Workable Rules of Search and Seizure--An Amicus Curiae Brief, 50 Cal.L.Rev. 421, 432 [emphasis supplied].)
It appears, therefore, that the entry by the police officers in the case at bench must stand or fall on the answer to the question whether Officer Thompson had reasonable cause to arrest the persons he believed in hiding in the house. If he did, and if his belief that they were in the house was reasonable, he had the right to enter to seek them out and arrest them. (Pen.Code, secs. 835a and 844; People v. Marshall, supra, 69 Cal.2d 51, 55-56, 69 Cal.Rptr. 585, 442 P.2d 665; People v. Gilbert, supra, 63 Cal.2d 690, 707, 47 Cal.Rptr. 909, 408 P.2d 365 [reversed on other grounds, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178].)
A police officer may arrest a person without a warrant '[w]henever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.' (Pen.Code, sec. 836, subd. 1.) As used in this section, 'public offense' includes a misdemeanor, and the concept of 'presence' has been construed to include perception by the use of all senses. (People v. Goldberg, 2 Cal.App.3d 30, 33, 82 Cal.Rptr. 314; People v. Hughes, 240 Cal.App.2d 615, 617, 49 Cal.Rptr. 767; People v. Seals, 263 Cal.App.2d 575, 580, 69 Cal.Rptr. 861.)
Section 602.5 of the Penal Code, enacted in 1961, provides in relevant part: 'Every person * * * who enters or remains in any noncommercial dwelling house, apartment, or other such place without consent of the owner, his agent, or the person in lawful possession thereof, is guilty of a misdemeanor.'
'There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances [citations omitted] * * *.' (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580 and cases there cited.) 'Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.' (People v. Ingle, supra, at 412-413, 2 Cal.Rptr. at 17, 348 P.2d at 580 and cases there cited.) Good faith of the officer alone is not sufficient, but the evidence [86 Cal.Rptr. 145]upon which the officer acts need not be sufficient to convict but only sufficient to incline the mind to believe, leaving some room for doubt. (People v. Ingle, supra, 53 Cal.2d 407, 413, 2 Cal.Rptr. 14, 348 P.2d 577.) The law looks only at the facts and circumstances presented to the officer at the time he is required to act. (People v. Ingle, supra, at 414, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Fisher, 184 Cal.App.2d 308, 313, 7 Cal.Rptr. 461.) The weight to be accorded the information upon which the officer acted is essentially a matter for the trial court's determination in the exercise of its sound discretion. (People v. Fisher, supra, at 312, 7 Cal.Rptr. 461; People v. Taylor, 176 Cal.App.2d 46, 51, 1 Cal.Rptr. 86.)
We are not unmindful of the rule that, when it appears that an arrest was made or private premises were entered without a warrant, the burden rests on the prosecution to show proper justification therefor (People v. Edwards, 71 A.C. 1141, 1144, 80 Cal.Rptr. 633, 458 P.2d 713; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23), but this is primarily a rule concerning the burden of proof to be observed by the trial court. An appellate court, in considering the question of the propriety of an arrest or entry without a warrant must determine whether the trial court's ruling is supported by any substantial evidence and must accept all evidence and all reasonable inferences therefrom in support of the trial court's determination. (People v. Fisher, supra; People v. Wilcox, 276 A.C.A. 502, 505, 81 Cal.Rptr. 60; People v. Shapiro, 213 Cal.App.2d 618, 620, 28 Cal.Rptr. 907; Bergeron v. Superior Court, 2 Cal.App.3d 433, 436, 82 Cal.Rptr. 711; see also Badillo v. Superior Court, supra, 46 Cal.2d 269, 271-272, 294 P.2d 23; People v. Marshall, supra, 69 Cal.2d 51, 56, 69 Cal.Rptr. 585, 442 P.2d 665; People v. Roberts, supra, 47 Cal.2d 374, 380, 303 P.2d 721.) Applicable to the case at bench is the language in People v. Ingle, supra, 53 Cal.2d 407, 414, 2 Cal.Rptr. 14, 18, 348 P.2d 577, 581: 'There was no conflict in the existence of the facts upon which the officers acted. The difficulty comes in the interpretation of those facts. The trial court found that there was reasonable cause for the arrest, that is, that there was probable cause. Unless it can be said that prudent men in the position of these officers knowing what they knew and seeing what they did would not have had reasonable cause to believe and to conscientiously entertain a strong suspicion that [the defendant] was violating or had violated the law, the arrest [entry] should be held lawful.'
Applying these principles to the facts, it is a reasonable inference from the testimony that Officer Thompson was on the scene within a few minutes after Mrs. Hamplin's report. He was on patrol duty in a police vehicle and proceeded to the scene upon receiving the dispatcher's call.
The information given by Mrs. Hamplin that the residence was known to her to be 'vacant' and that she had seen two persons enter with sleeping bags was, at least from the matters then apparent to Officer Thompson, corroborated in substantial part by his observations at the scene. He observed through the window in the door that the front door was devoid of furniture and furnishings except for carpeting and the stereo system. Taking into consideration that this was a resort area where the rightful occupants are absent for substantial portions of the year, the presence of the stereo system would not negate the house's being 'vacant.' A reasonable inference would be that, in view of its size and fragility, the stereo was left [86 Cal.Rptr. 146] in the house by the owner during his temporary absence, and its presence when coupled with the absence of other furniture and furnishings would tend to support a conclusion that the house was 'vacant' in that sense, i. e., a resort residence temporarily vacated by the owner.
As previously stated, the window was in the upper portion of the door and the officer could see through the window as he stood at the door. Looking through the window was not itself an unlawful search, whether rationalized on the right of a police officer to investigate (People v. Martin, supra, 45 Cal.2d 755, 761, 290 P.2d 855; People v. King, supra, 234 Cal.App.2d 423, 428-432, 44 Cal.Rptr. 500) or upon the occupant's lack of justifiable expectation of privacy (People v. Berutko, 71 A.C. 89, 96-99, 77 Cal.Rptr. 217, 453 P.2d 721; People v. Willard, 238 Cal.App.2d 292, 307, 47 Cal.Rptr. 734.)
It is obvious that Officer Thompson was justified in believing that there were persons inside the house. Mrs. Hamplin's report that she had seen persons entering was of recent origin. An officer was stationed at the rear and apparently observed no one leaving. Loud music was emanating from the house, and the back door was unlocked.
Officer Thompson was also justified in entertaining a strong suspicion that the persons he believed to be inside had entered without authority and that they were hiding in the house. The clear implication from the fact and the content of Mrs. Hamplin's report was that the persons she saw entering the house were unauthorized to enter. Mrs. Hamplin was not a professional informer nor an anonymous informer. She was a householder residing next door to the house in question, and it is not unreasonable to believe that a next-door neighbor would know the rightful occupants, especially where she is sufficiently concerned about the observed entry to notify the police. While the report of this informant alone may not have been sufficient to constitute reasonable cause to arrest, the officer was certainly entitled to rely on it to some extent. (People v. Guidry, 262 Cal.App.2d 495, 497-498, 68 Cal.Rptr. 794; People v. Lewis, 240 Cal.App.2d 546, 550-551, 49 Cal.Rptr. 579; see Witkin, California Evidence, 2d Ed., 1969 Supp., sec. 111A, pp. 48-49, distinguishing various types of informers.) Furthermore, Officer Thompson had knocked at both the front and back doors and had announced 'Police Officer' at the locked front door and again after opening the back door but before entering. He testified that he '* * * figured that they probably heard me and were hiding if they were in there.' In view of the report from Mrs. Hamplin and the strong evidence that someone was in the house, we cannot say as a matter of law that it was unreasonable for Officer Thompson to believe, when he received no response whatever to his repeated knocks and announcements of his presence, that the persons believed to be inside were not authorized to be there and were, therefore, hiding. Again, it must be emphasized that we must view the circumstances as they appeared to the officer at the time he was required to act. (People v. Ingle, supra, 53 Cal.2d 407, 414, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Fisher, supra, 184 Cal.App.2d 308, 313, 7 Cal.Rptr. 461.) Neither the trial court nor an appellate court may use hindsight and vitiate an arrest or entry on the basis that the information or the officer turned out to be mistaken. (People v. Roberts, supra, 47 Cal.2d 374, 376-378, 303 P.2d 721 [mistaken belief that person in distress was in an apartment]; People v. Marshall, supra, 69 Cal.2d 51, 54-55, 69 Cal.Rptr. 585, 442 P.2d 665 [mistaken belief that offenders were in an apartment]; People v. Jiminez, 143 Cal.App.2d 671, 673, 300 P.2d 68 [mistaken belief that suspect had a weapon]; People v. Hill, 69 Cal.2d 550, 553, 72 Cal.Rptr. 641, 446 P.2d 521 [mistaken belief that arrestee was another person].)
Under the applicable rules of appellate review, it is our judgment that, when he entered the ouse, Officer Thompson had reasonable cause to believe a violation of Penal Code, section 602.5 was being committed in his presence and that, therefore, his entry and search for persons in hiding, subject to the section 844 problems hereinafter discussed, were lawful. (Pen.Code, sec. 836, subd. 1; People v. Marshall, supra.) It is not all searches and seizures that are prohibited, only those that are unreasonable (U.S.Const. 4th Amend.; Cal.Const. art. I, sec. 19), and balancing the interests in proper and efficient law enforcement and the right of persons to be secure in their houses, papers and effects from unreasonable governmental intrusions, the trial judge was justified in finding that the conduct of Officer [86 Cal.Rptr. 147]Thompson, in view of the facts reasonably apparent to him at the time he acted, was not unreasonable in this case.
In so deciding, we expressly limit our holding to the precise facts of this case, to wit: information from a known neighboring resident rather than an anonymous informant that a house is vacant and that persons apparently unauthorized had entered therein; a substantially vacant house with sound coming therefrom and having an unlocked door indicating the presence of persons inside; repeated knocks and identification by the police officers without response, leading to a reasonable belief that the persons inside are hiding; all occurring on a weekend, as opposed to a week day, in a resort area where it is common for owners to be absent from their resort residence for substantial portions of the year, coupled with a non-violent entry through an unlocked door.
Having concluded that the entry and search for persons in hiding were lawful, the items discovered by Officer Thompson prior to the arrival of Officer Epstein were not the product of an unlawful search and were not unlawfully seized, inasmuch as they were in 'plain sight' within the meaning of that term as defined in People v. Marshall, supra, 69 Cal.2d 51, 56, 69 Cal.Rptr. 585, 442 P.2d 665 and People v. Roberts, supra, 47 Cal.2d 374, 379, 303 P.2d 721. The same is true of the items found in plain sight by Officer Epstein. Since the officers were lawfully in the house and the items were in plain sight, there was, as to those items, no search. (People v. Marshall, supra, 69 Cal.2d 51, 56, 69 Cal.Rptr. 585, 442 P.2d 665 and authorities there cited.)
These items consisted of the 'Baggie' of marijuana found by Officer Thompson in the closet in which he observed clothes hanging; the cardboard box, papers therein, the shoe box therein and the 'Baggie' containing marijuana and the brick-like piece of hashish, all found by Officer Thompson in the bottom portion of the linen closet; and the 'bill of sale' and 'offer for sale' found by Officer Thompson on the bedroom floor.
These items consist of the papers found by Officer Epstein on the bedroom floor bearing the name Michael Turkington, including the letter from the State Board of Equalization dated June 26, 1969 and the Combined State and Local Consumer Use Tax Return dated June 26, 1969, and the papers found by Officer Epstein on the floor of another bedroom, including the receipt from the California Department of Motor Vehicles bearing the name M. R. McCurdy.
The other items discovered by Officer Epstein stand on a different footing. The scope of a search must be strictly limited to the circumstances which rendered its initiation permissible. (Terry v. State of Ohio, supra, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889; Gilbert v. California, 388 U.S. 263, 274-275, 87 S.Ct. 1951, 1957, 18 L.Ed.2d 1178, 1187-1188; People v. Roberts, supra, 47 Cal.2d 374, 378-379, 303 P.2d 721; People v. Marshall, supra, 69 Cal.2d 51, 59-60, 69 Cal.Rptr. 585, 442 P.2d 665.) This is also the teaching in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 which is applicable to searches and seizures after June 23, 1969 (People v. Edwards, 71 A.C. 1141, 1152, 80 Cal.Rptr. 633, 458 P.2d 713). It is clear from the testimony of Officer Thompson that, at the time he placed the telephone call to the station requesting Officer Epstein to come to the house, the officers had determined to their satisfaction that there was no one hiding in the house. The search thereafter conducted by Officer Epstein in the closets, clothing and containers must be characterized as a general search for contraband and obviously exceeded the scope of the search permitted [86 Cal.Rptr. 148]by the reason for the entry. The evidence obtained as a result of that search must, therefore, be suppressed.
This evidence consisted of the small cellophane 'Baggie' of hashish and the passport, international driver's permit, international vaccination certificate and the Hertz rental document, all bearing petitioner's name and found in the pocket of the black suede jacket; the pipe and small piece of hashish found by Officer Epstein inside the 'leather type pouch'; the passport and international vaccination book in the name of Michael Turkington and the German currency and piece of paper with writing on it found by Officer Epstein in the overnight bag; the brown leather boots and the flat piece of hashish discovered by Officer Epstein in one of the boots.
Compliance with Penal Code, Section 844
'An entry effected in violation of the provisions of section 844 * * * renders any following search and seizure 'unreasonable' within the meaning of the Fourth Amendment. [Citations omitted.]' (Greven v. Superior Court, 71 A.C. 303, 306, 78 Cal.Rptr. 504, 506, 455 P.2d 432, 434.) The question of compliance with section 844 is, therefore, reviewable upon a petition for mandate under Penal Code, section 1538.5, subd. (i). (Greven v. Superior Court, supra, at 306-307, 78 Cal.Rptr. 504, 455 P.2d 432.)
Section 844 provides that 'To make an arrest, * * * a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.' By judicial construction, it is also required that the officer identify himself as such prior to making a forced entry. (Greven v. Superior Court, supra, 71 A.C. 303, 308, fn. 6, 78 Cal.Rptr. 504, 455 P.2d 432.)
Although the entry by the officers in the case at bench was not accompanied by actual violence, their opening the unlocked back door constitutes a 'breaking' within the meaning of section 844. (People v. Rosales, 68 Cal.2d 299, 303, 66 Cal.Rptr. 1, 437 P.2d 489; see also People v. Bradley, 1 Cal.3d 80, 87-88, 81 Cal.Rptr. 457, 460 P.2d 129.) The officers knocked at both the front and back doors and announced at each of said doors 'Police Officers.' They did not explain the purpose for which admittance was desired. In People v. Marshall, supra, 69 Cal.2d 51, 55-56, 69 Cal.Rptr. 585, 442 P.2d 665, which, on principle, is indistinguishable from the case at bench, it was held that repeated knocking at the door and identification by the police officers as such without response constituted substantial compliance with section 844, without an express announcement of the purpose for which admittance was desired. Marshall has been interpreted as holding that 'Such identification [i.e., identification as police officers without an express announcement of purpose] alone could constitute substantial compliance with section 844 only if the surrounding circumstances made the officers' purpose clear to the occupants or showed that a demand for admittance would be futile." (Greven v. Superior Court, supra, 71 A.C. 303, 308, 78 Cal.Rptr. 504, 507, 455 P.2d 432, 435, quoting from People v. Rosales, supra, 68 Cal.2d 299, 302, 66 Cal.Rptr. 1, 437 P.2d 489 [emphasis supplied].) In the case at bench, the officers repeatedly knocked and announced 'Police Officer'; there was reasonable cause for them to believe that the persons in the house were unauthorized to be there and hiding, ante, and that, therefore, having received no response to their repeated knocks and announcements of authority, an express announcement of purpose would be futile. We hold, therefore, that, under the circumstances and facts known to the officers at the time they were required to act, they substantially complied with the requirements of section 844. (People v. Marshall, supra, 69 Cal.2d 51, 69 Cal.Rptr. 585, 442 P.2d 665; Greven v. Superior Court, supra, 71 A.C. 303, 66 Cal.Rptr. 1, 437 P.2d 489; People v. Rosales, supra.)
Forum Shopping
It is dubious whether the issue of forum shopping is properly before us. A motion to suppress pursuant to Penal Code, section 1538.5 must be made upon one of the grounds enumerated in the statute, and unlawful forum shopping is not one of the enumerated grounds. (Pen.Code, sec. 1538.5, subd. (a).) In any event, however, we do not find this contention meritorious.
At the commencement of the preliminary hearing in the Municipal Court of Central Orange County Judicial District, counsel for petitioner raised this problem, representing [86 Cal.Rptr. 149]to the court that the People had previously presented the facts to the judge of the Newport Brach-Costa Mesa Municipal Court for the purpose of obtaining an arrest warrant and that the issuance of the warrant was denied by the judge of that court. We do not know, of course, what facts were presented to the Newport Beach-Costa Mesa Municipal Court in the application for an arrest warrant, nor could petitioner's counsel have known at the time he made his objection that the evidence would be the same as that presented to the Municipal Court of Central Orange County Judicial District, inasmuch as no testimony had then been given at the preliminary hearing. Moreover, petitioner has failed to direct this court's attention to any authority prohibiting a complaint and preliminary hearing in one municipal court on the ground that an arrest warrant was previously denied in another municipal court, and we are not apprised of any such authority.
Subject Matter Jurisdiction
Petitioner contends that all of the allegedly unlawful conduct took place, if at all, in the territorial jurisdiction of the Newport Beach-Costa Mesa Municipal Court, not the Municipal Court of Central Orange County Judicial District and that, therefore, the latter court lacked subject matter jurisdiction. Again, it is dubious that this question is properly before us on a petition for mandate pursuant to Penal Code, section 1538.5, but, in any event, this contention is likewise unmeritorious. Sections 859 and 860 of the Penal Code clearly indicate that, in a felony case, the preliminary hearing shall be held in the court in which the complaint has been filed and that the complaint may be filed in any court in the county in which the offense is triable. (People v. Jones, 221 Cal.App.2d 619, 621, 34 Cal.Rptr. 618.)
Let a peremptory writ of mandate issue directing the respondent court to vacate its order dated November 4, 1969 only insofar as it relates to the evidence enumerated in footnote 11 hereinabove and to make its order suppressing said evidence enumerated in footnote 11, its order of November 4, 1969 otherwise to remain in full force and effect. The alternative writ of mandate heretofore issued by this court is discharged and the restraining order of this court dated December 16, 1969 is dissolved.
KERRIGAN, Acting P. J., and TAMURA, J., concur.
[*] See 3 Cal.3d 720 for subsequent opinion.