People v. Jacobs
People v. Jacobs
Dissenting Opinion
I dissent.
I do not reach the issue of consent to search premises by an 11-year-old child, because in my opinion the police, armed with an arrest warrant, substantially complied with the requirements of Penal Code section 844 and therefore properly entered defendant’s premises, with or without consent, to execute the warrant. Upon entry the police observed the stolen television set in plain sight. I therefore agree with the conclusion of the trial court and the unanimous Court of Appeal, which affirmed the judgment.
Defendant admits the police possessed a valid arrest warrant when they entered his house. He attempts to avoid the consequences of this concession, however, by asserting that the police “did not utilize the warrant” to gain
Defendant’s second contention is that the entry was unlawful because it was in violation of section 844. This statute authorizes the police to break open the door or window of a house to effect an arrest, but requires that before doing so they (1) knock or utilize some other means reasonably calculated to alert the occupants to their presence, (2) identify themselves as police officers, and (3) explain their purpose in seeking admittance. (Duke v. Superior Court (1969) 1 Cal.3d 314, 319 [82 Cal.Rptr. 348, 461 P.2d 628].)
The police substantially complied with section 844 by knocking, identifying themselves, and asking to be admitted into the house to search for defendant. The purpose of the proposed search, however, was to arrest defendant, and the police did not explain this before entering. Thus, they did not fully comply with the statute. (People v. Rosales (1968) 68 Cal.2d 299, 302 [66 Cal.Rptr. 1, 437 P.2d 489].) The issue, then, is whether the police conduct, which fell short of a full disclosure of purpose, nevertheless complied with the requirements and purposes of the knock-notice statute.
The law is clear that substantial compliance with the statute is generally sufficient. (Greven v. Superior Court (1969) 71 Cal.2d 287, 291 [78 Cal.Rptr. 504, 455 P.2d 432].) Substantial compliance has been defined as actual compliance with every reasonable objective of a statute; it overlooks mere technical imperfections of form. (Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29 [22 Cal.Rptr. 657, 372 P.2d 649].) In People v. Peterson (1973) 9 Cal.3d 717, 723 [108 Cal.Rptr. 835, 511 P.2d 1187], we declared that “[w]hen police procedures fail to conform to the precise demands of the statute but nevertheless serve its policies we have deemed that there has been such substantial compliance that technical and, in the particular circumstances, insignificant defaults may be ignored.”
In Duke v. Superior Court, supra, 1 Cal.3d at page 321, Justice Tobriner noted for the majority that “The purposes and policies underlying section 844 are fourfold: (1) the protection of the privacy of the individual in his home [citations]; (2) the protection of innocent persons who may also be present on the premises where an arrest is made [citation]; (3) the preven
In this instance, the police conduct served all the foregoing policies. Three of the Duke concerns, which may be summarized as prevention of violence to person or property due to unannounced intrusions, are not implicated here, where the knock on the door was actually answered by an occupant, the police identified themselves, and the occupant was asked to lead the police through the house. There is no reason to conclude that these purposes would have been further served had the officers more fully complied with section 844 by stating the purpose of their visit.
The remaining goal of the statute, to protect an occupant’s privacy interest, was also satisfied by the police conduct in this case. First, they obtained a warrant; its very existence necessarily casts some limitations on an individual’s right of privacy. Second, defendant’s home was not suddenly or violently invaded; the police knocked on the door and politely requested admittance. Finally, the police were peaceably admitted; thus there was no danger of “unexpected exposure of private activities.” (United States v. Bustamante-Gamez (9th Cir. 1973) 488 F.2d 4, 12.)
I therefore conclude that under the circumstances of this case there was substantial compliance with section 844. Once properly inside the home, the police could not avoid noticing the stolen television set in plain sight. They were justified in seizing it, and the trial court properly admitted the set in evidence.
I would affirm the judgment of the Court of Appeal.
Lucas, J., and Panelli, J., concurred.
Respondent’s petition for a rehearing was denied February 26, 1987.
Opinion of the Court
Opinion
Defendant appeals from a judgment of conviction of burglary, the key evidence of which was seized by officers who entered his home with a warrant for his arrest. He contends the police failed to comply with the knock-notice statute and that his 11-year-old stepdaughter did not give valid consent to the intrusion. We hold that the seizure was unlawful because the prosecution failed to show that the police had reasonable grounds for believing defendant was in the house or that they reasonably believed the child had the authority to permit the entry and search.
I. Facts
Defendant was employed as a janitor at an automobile dealership in San Rafael from March through September 1981. The business was burglarized on September 5 and December 20 of that year, and a specially manufactured television set was stolen on each occasion. The evidence suggested that defendant was involved in one or both of these crimes.
On the morning of New Year’s Eve, 1981, Sergeant Hasser of the San Rafael Police Department obtained a valid warrant for the arrest of defendant in connection with the burglaries. About 3:20 p.m. on the same day, Hasser and Detectives Keller and Boyd, all dressed in plain clothes, went to defendant’s home in an unmarked vehicle to execute the arrest warrant. They did not have a valid search warrant.
Hasser and Keller knocked on the front door while Boyd observed the back of the house. Gretchen, defendant’s 11-year-old stepdaughter, greeted the 6-foot-tall officers at the door.
There was conflicting testimony about what happened next. Hasser testified that he identified himself to Gretchen and showed her his badge. He then asked to see defendant and inquired if he could enter the house; he was standing outside in inclement weather at the time. He did not present the warrant or explain that he intended to arrest defendant. Gretchen admitted Hasser and Keller into the front room and, almost simultaneously, responded that defendant would return home in about an hour. Hasser “wanted to believe the young girl,” but he felt he had a “responsibility to check a little bit to make sure [defendant] wasn’t just standing in one of the rooms.”
Gretchen testified as follows for the defense. She answered a knock at the door and discovered two men. When Hasser asked for defendant, she told him defendant would be back in an hour. Hasser then stated the officers “had to come in and check around . . . and see if [defendant] was there.” Without asking permission to enter, Hasser and Keller proceeded into the dining room, gave Gretchen a card, and identified themselves. The officers then searched the rest of the house as Gretchen watched from the dining room. When they returned to the front room, Detective Boyd brought them a listing of serial numbers. The officers examined the television set, removed it, and departed. About an hour later, defendant returned to the house.
On cross-examination, Gretchen testified she was babysitting her two younger brothers, aged two and five, when the officers arrived. Her older brother and parents were not home. She admitted that Hasser asked permission to enter while he was standing on the steps, and that he used a normal tone of voice, did not show her a weapon, did not frighten her, and did not push her aside in making his entry. On redirect, Gretchen testified that Hasser did not really ask permission but stated “they would have to come in and check if John was there.”
Defendant was charged with two counts of burglary in violation of section 459. He pleaded not guilty and moved to suppress the television set pursuant to section 1538.5. The superior court denied the motion, and defendant exhausted his opportunities for review of the ruling. Defendant was convicted of the December burglary, and the Court of Appeal affirmed.
II. Discussion
Both the California and the federal Constitutions prohibit police from entering a suspect’s home to make a routine felony arrest unless the
Defendant asserts the entry violated section 844 because he was not inside the house when the police entered and the police lacked reasonable grounds for believing him to be there. Section 844 provides: “To make an arrest, a private person, if the offense be a felony, and in all cases 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.” (Italics added.) These requirements apply when the arrest is to be made by virtue of a warrant and when officers are authorized to make an arrest without a warrant. (See People v. Bennetto (1974) 10 Cal.3d 695, 698-700 [111 Cal.Rptr. 699, 517 P.2d 1163]; cf. Miller v. United States (1958) 357 U.S. 301, 309 [2 L.Ed.2d 1332, 1338, 78 S.Ct. 1190].)
Sergeant Hasser testified that he believed defendant was home because the police had obtained defendant’s address from an application for employment, had observed defendant at that address in October 1981, and had ascertained that defendant was not employed at a daytime job. Hasser reasoned: “[I]f I don’t know . . . about someone working, being employed or otherwise, being required to be away from the residence in the daytime, then my strongest suspicion is that he’s going to be there.”
We have previously held that “[s]ection 844 of the Penal Code requires more than a reasonable belief that the person to be arrested owns or leases the dwelling which is entered; there must be a reasonable belief that the person is inside at the time of entry.” (People v. Bennetto, supra, 10 Cal.3d 695, 700 (italics added); accord People v. Smith (1972) 7 Cal.3d 282, 287 [101 Cal.Rptr. 893, 496 P.2d 1261]; Horack v. Superior Court (1970) 3 Cal.3d 720, 726-727 [91 Cal.Rptr. 569, 478 P.2d 1]; Greven v. Superior Court (1969) 71 Cal.2d 287, 293, fn. 9 [78 Cal.Rptr. 504, 455 P.2d 432].) Although Hasser’s testimony supports an inference that defendant could be
If the officers had a hunch or a hope defendant would be home, the evidence indicates it was dispelled before they entered the house. They arrived in plain clothes and an unmarked car, and there is no suggestion defendant perceived their arrival and fled or hid. Defendant’s vehicles were nowhere in sight. When they asked Gretchen if defendant was home, she told them he would be back in an hour. The evidence does not suggest that Gretchen’s response or behavior further aroused the officers’ suspicions.
Sergeant Hasser was concerned because adults sometimes tell children to say “certain things,” and he felt he had a duty to execute the warrant.
The Attorney General next contends the police did not violate the statute because they did not “break open the door or window.” (§ 844.) Rather, they performed their task in a calm and decorous manner without intimidating the young girl who answered the door. They asked her if defendant was home, if they could come in to look for him, and if she would accompany them.
By its terms, section 844 applies to “breakings” to effect arrests. (People v. Superior Court (1973) 31 Cal.App.3d 788, 796 [107 Cal.Rptr. 756].) The word “break” in the context of section 844 is a term of art which includes more than the physical breaking of a door or window. Even a peaceable entry may be deemed a “breaking” if the entry undermines the statutory purposes of safeguarding the privacy of citizens in their homes and preventing unnecessary violent confrontations between startled householders and arresting officers. (Duke v. Superior Court (1969) 1 Cal. 3d 314, 321 [82 Cal.Rptr. 348, 461 P.2d 628]; see People v. Bennetto, supra, 10 Cal.3d at p. 699 [passkey]; People v. Bradley (1969) 1 Cal. 3d 80, 87 [81 Cal.Rptr. 457, 460 P.2d 129] [open door “at nighttime when the occupant apparently is asleep”]; People v. Rosales (1968) 68 Cal.2d 299, 303 [66 Cal.Rptr. 1, 437 P.2d 489] [unlocked screen door]; cf. Sabbath v. United States (1968) 391 U.S. 585, 590 [20 L.Ed.2d 828, 834, 88 S.Ct. 1755] [closed but unlocked door].) If the police obtain valid consent to enter, however,
Gretchen’s consent was not valid and the entry must be considered a breaking unless she had the authority to permit the entry or the police reasonably and in good faith believed she had such authority. (People v. Carr (1972) 8 Cal.3d 287, 298 [104 Cal.Rptr. 705, 502 P.2d 513]; People v. Hill (1968) 69 Cal.2d 550, 554 [72 Cal.Rptr. 641, 446 P.2d 521], affd. sub nom. Hill v. California (1971) 401 U.S. 797 [28 L.Ed.2d 484, 91 S.Ct. 1106]; Bielicki v. Superior Court (1962) 57 Cal.2d 602, 607-608 [21 Cal.Rptr. 552, 371 P.2d 288]; People v. Roberts (1956) 47 Cal.2d 374, 377 [303 P.2d 721]; People v. Gorg (1955) 45 Cal.2d 776, 783 [291 P.2d 469]; People v. Carswell (1957) 149 Cal.App.2d 395, 401 [308 P.2d 852]; see People v. Jennings (1956) 142 Cal.App.2d 160, 169 [298 P.2d 56].)
The trial court did not make a finding as to whether the officers reasonably believed Gretchen had the authority to consent to the entry. The Attorney General contends the evidence shows the officers reasonably believed a child just under 12 years of age living in modern-day Fairfax, California, had reached an age of sufficient discretion to consent to a cursory police search of the family home for the purpose of determining if her parent was there. He argues this belief was supported by the officers’ observation that Gretchen was babysitting her much younger siblings. (People v. Misquez (1957) 152 Cal.App.2d 471, 479 [313 P.2d 206].)
We disagree. First, the record shows the officers entered the house before they discovered Gretchen was babysitting. Gretchen’s role as baby
Other courts that have considered the authority, or capacity, of a minor child to consent to a police entry of the family home generally have refused to uphold the admissibility of evidence found therein in a criminal action against the parent.
The Attorney General argues that any violation of the statute was a mere technicality which does not merit the suppression of evidence. It is
We do not suggest that consent by a minor will be ineffective in all cases in which no adult occupants are present. As a child advances in age she acquires greater discretion to admit visitors on her own authority. In some circumstances, a teenager may possess sufficient authority to allow the police to enter and look about common areas. (See Franklin v. State (1956) 208 Md. 628 [119 A.2d 439, 442].) Exceptional circumstances also may justify a search that otherwise would be illegal. For example, some courts have upheld searches made at the request of a child or when a child is the victim of or a witness to a crime.
The judgment of the Court of Appeal is reversed.
Bird, C. J., Reynoso, J., and Grodin, J., concurred.
All further statutory references are to the Penal Code.
We are mindful that defendant was wanted for a crime the fruits of which might well be in the house.
An arrest warrant, of course, does not supply grounds for believing a suspect will be home when the police attempt to execute it; it assures only that there is reasonable ground to believe the suspect has committed the offense complained of (§ 813).
At oral argument, the Attorney General conceded that, even apart from section 844, an arrest warrant will not justify a police entry into a suspect's home unless the officers have at least a reasonably well informed suspicion the subject of the warrant is within. It appears a majority of the Supreme Court would require something more. Justice Stevens, writing for the majority in Payton, stated in dictum: “[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a
The rule of apparent authority has been regularly reaffirmed despite occasional criticism. (See People v. Hill, supra, 69 Cal.2d at p. 554, fn. 5; Weinreb, Generalities of the Fourth Amendment (1974) 42 U.Chi.L.Rev. 47, 60 (hereinafter Weinreb).)
E.g., Commonwealth v. Garcia, supra, 387 A.2d at page 55 (accused’s 16-year-old daughter lacked coequal dominion and control over the home of the accused where accused had power to determine extent of daughter’s authority to admit people to the home); Laasch v. State (1978) 84 Wis.2d 587 [267 N.W.2d 278, 282] (no showing that defendant’s 5-year-old son possessed the capacity, intelligence, or authority to give constitutionally effective consent to the police entry into defendant’s home); Padron v. State (Fla.App. 1976) 328 So.2d 216, 217-218, cert. den. (Fla. 1976) 339 So.2d 1172 (accused’s 16-year-old son does not share common authority with his father over a dwelling place provided by the father); Hembree v. State (Tenn. 1976) 546 S.W .2d 235, 241 [99 A.L.R.3d 586] (when parents and 18-year-old son are in custody and readily available, consent by son is invalid because his rights to use or occupy the premises are not necessarily equal to the rights of his parents); May v. State (Miss. 1967) 199 So.2d 635, 639 (accused’s 15-year-old son cannot waive constitutional right of father to object to illegal entry and search of home); State v. Malcom (1964) 55 Del. 1 [203 A.2d 270, 273] (accused’s 16-year-old son lacked authority to consent to search of home in absence of accused).
E.g., Commonwealth v. Maxwell (1984) 505 Pa. 152 [477 A.2d 1309, 1314-1315], certiorari denied 469 U.S. 971 [83 L.Ed.2d 306, 105 S.Ct. 370] (consent by 16-year-old daughter valid where there was no evidence of immaturity or mental instability and daughter approached the officers and asked them to search); Harmon v. State (1982) 277 Ark. 265 [641 S.W.2d 21, 23] (the 16-year-old daughter of defendant’s paramour could consent to search of nonprivate areas of her mother’s house, in which they all lived, where she knew about consents to searches, had seen her father execute one, had the right of access, had reported a murder and produced the weapon, and had accompanied the officers); Murphy v. State (Ala.App. 1978) 355 So.2d 1153, 1156 (consent by accused’s 12-year-old daughter valid where daughter was victim of sex crime).
The Attorney General urges us to carve out an exception for cases in which the police have an arrest warrant. We decline the invitation. The fact that a magistrate has determined there is probable cause to believe the suspect has committed a crime is irrelevant to the issue
Our conclusion that an entry based on Gretchen’s consent violated section 844 makes it unnecessary to discuss defendant’s additional claims that her consent was involuntary (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 248-249 [36 L.Ed.2d 854, 875, 93 S.Ct. 2041]; Bumper v. North Carolina (1968) 391 U.S. 543, 550 [20 L.Ed.2d 797, 803, 88 S.Ct. 1788]; People v. Jennings, supra, 142 Cal.App.2d at p. 167), that it was invalid because it was given after the police entered (People v. Haven (1963) 59 Cal.2d 713, 719 [31 Cal.Rptr. 47, 381 P.2d 927]), and that the police failed to explain the purpose for which they desired admittance (Greven v. Superior Court, supra, 71 Cal.2d at pp. 291-293; People v. Marshall (1968) 69 Cal.2d 51, 55-56 [69 Cal.Rptr. 585, 442 P.2d 665]; People v. Rosales, supra, 68 Cal.2d at p. 302; People v. Cockrell (1965) 63 Cal.2d 659, 665-666 [47 Cal.Rptr. 788, 408 P.2d 116], cert. den. 389 U.S. 1006 [19 L.Ed.2d 604, 88 S.Ct. 568]; People v. Martin (1955) 45 Cal.2d 755, 762-763 [290 P.2d 855]).
Reference
- Full Case Name
- The PEOPLE, Plaintiff and Respondent, v. JOHN ALBERT JACOBS , Defendant and Appellant
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- 48 cases
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