People v. Parra

TAMURA, Acting P. J,

I respectfully dissent.

Assuming that necessity justified entry into the shop to determine whether a burglary was in progress or had been committed (but see Horack v. Superior Court, 3 Cal.3d 720 [ 91 Cal.Rptr. 569 , 478 P.2d 1 ]), once the officers checked the premises out and found no unauthorized persons present or evidence of a burglary having been committed, there no longer existed an immediate threat to life, health or property which justified rummaging through the owner’s desk drawer however laudable the officers’ motives may have been.

The “necessity” upon which the majority seek to justify the search of the desk was no more imminent than the necessity arising out of the quandary faced by the officers in People v. Smith, 7 Cal.3d 282 [ 101 Cal.Rptr. 893 , 496 P.2d 1261 ], as to what to do with the child who had been left alone in her apartment. In Smith the court commended the officers for their solicitude for the child’s safety and welfare but pointed out that the issue was “not simply whether the conduct of Officer Brown might have been ‘reasonable’ under all the circumstances, but whether the People have shown that his entry into Mrs. Blinn’s home falls within one of the ‘few specifically established and well-delineated exceptions’ to the warrant requirement. [Citations.]” ( 7 Cal.3d at p. 286 .) The court held that the “necessity” or “emergency doctrine” “must not be permitted to swallow the rule: in the absence of a showing of true necessity—that is, an imminent and substantial threat to life, health, or property—the constitutionally guaranteed right to privacy must prevail.” (Italics supplied.) ( 7 Cal.3d at p. 286 .)

People v. Lanthier, 5 Cal.3d 751 [ 97 Cal.Rptr. 297 , 488 P.2d 625 ], is clearly distinguishable. There the noxious odor emanating from the locker constituted a nuisance; it posed a present and imminent threat to *737 the health, safety and welfare of the students. An unlocked business premises, however, without more, does not pose such an imminent threat to life, health or property. The majority poses a threat which was possible but not one which was imminent.

Under the majority holding, if the police were unable to find evidence of the proprietor’s identity in the first desk drawer, presumably they could continue to look through the remaining drawers and perhaps even rummage-through file cabinets or other personal effects in order to find evidence of such identity. The mere fact of an unlocked business premises cannot be used to justify such a serious and extensive intrusion into a citizen’s Fourth Amendment right of privacy. Other alternative means of safeguarding the premises were apparently not considered. The officers could have wedged the front door shut, called a locksmith, or paid special attention to the premises during patrol.

I would hold the search unlawful under People v. Smith, supra, 7 Cal.3d 282 , and Horack v. Superior Court, supra, 3 Cal.3d 720 , and reverse the judgment.

Appellant’s petition for a hearing by the Supreme Court was denied May 9, 1973.