Petition — California v. Ramey

IN THE | CLE |

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM 1975

No.€50 ~ l 842

THE

CALIFORNIA,

Petitioner,

v.

MICHAEL KENNETH RAMEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CALIFORNIA

EVELLE J. YOUNGER

Attorney General

JACK R. WINKLER

Chief Assistant Attorney General

Criminal Division

ARNOLD 0. OVEROYE

Assistant Attorney General

JOEL CAREY

Deputy Attorney General

J. ROBERT JIBSON

Deputy Attorney General

555 Capitol Mall, Suite 550

Sacramento, California 95814

Telephone (916) 445-8743

Attorneys for Respondent

printed in CALIFORNIA OFFICE OF STATE PRINTING

TOPICAL INDEX

Page

OPINIONS BELOW --__------- Se ee aint 1

IIIT cccniecitnassiesenarcseninviapiinipspnasnnnapanitiinssictituignidualiasimindaniane 2

FE 2

CONSTITUTIONAL PROVISIONS INVOLVED ----------- 2

i i ————— 3

PARE C GE CENE 3 coccncscsencnsesscuscenceusnees 4

REASON WHY A WRIT OF CERTIORARI

REY SIE SII cic cscisipesinibserenemancncinnichicheanieienindeneiniiite 5

ARGUMENT

UNDER THE FOURTH AMENDMENT OF THE UNITED

STATES CONSTITUTION, WARRANTLESS ARRESTS

WITHIN THE HOME ARE NOT PER SE UNREASON-

ABLE IN THE ABSENCE OF EXIGENT CIRCUM-

STANCES _- sinabeiaspiaeitisalvitininintaeh 7

a a Se eRe ae 16

APPENDIX C

A. California Supreme Court Opinion filed February 25,

1976 __ iocavnlebsandininibscndadiednds-emvereneastndiiiaadiaiinndadaipiiedaiianate 21

TABLE OF AUTHORITIES

CASES

Page

Carroll v. United States, 267 U.S. 132 (1975) _..---_------- a» ©

Chimel v. California, 395 U.S. 752 (1969) _.._-._.._-_.__-------- 5

Commonwealth v. Forde, 329 N.E.2d 717 (Mass. 1975) __-_-- 14

Coolidge v. New Hampshire, 403 U.S. 443 (1971) __5, 6, 12, 13, 16

Cooper v. California, 386 U.S. 58 (1967) __...-----_-_--_-_- 15

Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) ____ 14

Gerstein v. Pugh, 420 U.S. 103 (1975) _------------------- 6, 8

Henry v. United States, 361 U.S. 98 (1959) __--_-_________- 8

Johnson v. United States, 333 U.S. 10 (1947) ___--------- 5, 10

Jones v. United States, 357 U.S. 493 (1958) ____-_-______-_-_- 12

Ker v. California, 374 U.8. 23 (1963) _..........._-_-___- 10, 11

Miller v. United States, 357 U.S. 301 (1958) __..._._______-_ 10, 11

Sabbath v. United States, 391 U.S. 585 (1968) ____________ 11, 13

Semayne’s Case, 5 Co. Rep. 9/a, 77 Eng. Rep. 194 (KB 1603) 8

Trupiano v. United States, 334 U.S. 699 (1947) _____-______ 10

United States v. Edwards, 415 U.S. 800 (1974) ___________. . 15

United States v. Phillips, 497 F.2d 1131 (9th Cir. 1974) ___ _ 14

United States v. Rabinowitz, 339 U.S. 56 (1950) ~._-__--_- _. 10

United States v. Santana, No. 75-19 ___-__._.-___________- ia:

United States v. Shye, 492 F.2d 886 (6th Cir. 1974) _______- 14

United States v. Watson, ________ U.S. _____-__ (1976),

44 L.W. 4112 (Jan. 26, 1976) ...---.-.-.-_.____- aan ae

Vale v. Louisiana, 399 U.S. 30 (1970) _-.---________________ 5

Vance v. North Carolina, 432 F.2d 984 (4th Cir. 1970) ______ 14

Warden v. Hayden, 387 U.S. 294 (1967) ___-------_______- 5, 13

CODES

California Health and Safety Code §11357 _.__... 3

United States Code, 18 U.S.C. § 3052 _______ Ee a an s

RS eee 11

es re a

2101(d) | 9

a

TABLE OF AUTHORITIES—Continued

CONSTITUTION —

Constitution of the State of California, Article I, § 13__2, 3, 6, 16

United States Constitution, Fourth Amendment

2,3, 5, 6, 7, 9, 10, 12, 14, 16

Fourteenth Amendment —_------~- 2, 11

MISCELLANEOUS

American Law Institute, A Model Code of Pre-Arraignment

Procedure, §§ 120.6(1), 120.6(3)(b) (1972) ~----------- 13, 14

Coke, Fourth Institute of the Laws of England 177 (1797) --- 9

1 Hale, Pleas of the Crown, 582-583 (1847) _-_------------~-- 9

Sheppard, The Offices of Constables, ch. 8, § 2, No. 4 (1650) _. 9

Rule 22(1), Supreme Court Rules —__---- ae 2

Taylor, Two Studies in Constitutional Interpretation, 27-43

noes) ieteednennannnan § o

2 Hawkins, Pleas of the Crown, ch. 14, § 7 (1787) ~---------- 4)

IN THE

SUPREME COURT OF THE UNITED STATES

OcToBER TERM, 1975

No. 75-—

THE PEOPLE OF THE STATE OF

CALIFORNIA,

Petitioner,

Vv

MICHAEL KENNETH RAMEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CALIFORNIA

—_—_— — —

The People of the State of California respectfully

petition that a writ of certiorari issue to review the

judgment of the Supreme Court of the State of Cali-

fornia entered in this case on April 26, 1976.

OPINIONS BELOW

The opinion of the Supreme Court of the State

of California, filed on February 25, 1976, is printed

as Appendix A hereto and is reported at 16 Cal.dd

263, 127 Cal. Rptr. 629, 545 P.2d 1333 (February 25,

1976).

The opinion of the California Court of Appeal,

Third Appellate District, filed on April 30, 1975, is

printed as Appendix B hereto.

— po

JURISDICTION

The Supreme Court of the State of California orig-

inally entered judgment in this case on February

25, 1976. The timely petition for rehearing and/or

modification of the opinion was filed, and on April

15, 1976, the Supreme Court of the State of Cali-

fornia denied the petition for rehearing and/or modi-

fication. That Court issued its remittitur and the

judgment became final on April 26, 1976. This peti-

tion for a writ of certiorari was filed within 90 days

of that date. The jurisdiction of this Court is invoked

under Title 28 U.S.C. sections 1257(3) and 2101(d)

and Rule 22(1), Supreme Court Rules.

QUESTIONS PRESENTED

Does the protection of the Fourth Amendment of

the United States Constitution against violation of

the right of the people to be secure in their persons

and houses against unreasonable seizures require, in

the absence of exigent circumstances, an arrest war-

rant to make an arrest within the home?

CONSTITUTIONAL PROVISIONS INVOLVED

The pertinent provisions of the Fourth and Four-

teenth Amendments to the Constitution of the United

States and article I, section 13, of the Constitution

of the State of California are set forth in Appendix

C hereto.

—

STATEMENT OF THE CASE

Petitioner seeks a writ of certiorari to have this

Court review the decision of the California Supreme

Court which held, inter alia, that warrantless arrests

within the home are per se unreasonable in the ab-

sence of exigent circumstances. The decision was

based upon the Fourth Amendment to the United

States Constitution and article I, section 13, of the

California Constitution.

Respondent was charged with possession of mari-

juana for sale, possession of ainphetamines and pos-

session of a sawed-off shotgun. He pleaded not guilty

and moved to suppress the evidence. The motion was

granted as to the shotgun, but denied as to the mari-

juana and amphetamines. Thereafter respondent

pleaded guilty to possession of marijuana (Calif.

Health and Safety Code § 11357) and the additional

charges were dropped.

On appeal, respondent challenged the denial of his

motion to suppress the drugs (which had been seized

at his residence at the time of his arrest). The Court

of Appeal of the State of California, Third Appellate

District, affirmed the conviction on April 30, 1975.

The Court of Appeal discussed the question of the

warrantless entry to arrest but, finding exigent cir-

cumstances, declined to adopt a warrant requirement.

(See opinion, App. B.)

The California Supreme Court granted a hearing

on June 25, 1975. Argument was had on October 15,

— Po

1974. On February 25, 1976, that Court issued its

decision reversing respondent’s conviction and held

that, absent exigent circumstances, an arrest warrant

is required to execute an arrest within the home. The

Court disagreed with the Court of Appeal and found

that no exigent circumstances existed which would

excuse the failure to obtain an arrest warrant. (See

opinion, App. A.)

FACTUAL STATEMENT

Relying ou information received from a citizen-

victim informant (which the California Supreme

Court found to be reliable and to constitute probable

cause), police officers went to respondent’s home to

make an arrest for receiving stolen property (a .38

caliber pistol). The information, which included state-

ments that there were at least three subjects at the

residence and at least two leaded guns, came to the

officers about three hours prior to the actual arrest.

When the officers reached the residence, they drew

their weapons and knocked on the door. Respondent

answered and the officer in charge identified himself

and displayed his badge. At that point, respondent

immediately backed into his residence and began to

reach for something behind a portable bar. His arm

was seized by one officer and he was handcuffed and

placed under arrest. Behind the bar were found a

loaded .45 ealiber handgun and some illegal narcotics.

Other contraband was located in plain view in the

a

im fon

living room area and an illegal sawed-off shotgun

was seized from a back bedroom. The stolen prop-

erty alleged to have been received by respondent was

not found. However, he was arrested for possession

of the contraband which was discovered in the resid-

ence. His motion to suppress evidence was successful

as to the shotgun (Chimel v. California, 395 U.S. 752

(1969) ), but the items found in the room where the

arrest was actually made were not suppressed.

REASON WHY A WRIT OF CERTIORARI

SHOULD BE GRANTED

The Supreme Court of the State of California has

in this case interpreted the Fourth Amendment of

the United States Constitution to require an arrest

warrant in order to make an arrest in the home in

the absence of exigent circumstances. While it cited

California’s constitutional counterpart of the Fourth

Amendment as an additional basis for its decision,

the California Supreme Court’s rationale was sup-

ported almost exclusively by language in various fed-

eral and state decisions, including decisions by this

Court in Coolidge v. New Hampshire, 403 U.S. 443

(1971), Vale v. Louisiana, 399 U.S. 30 (1970), Warden

v. Hayden, 387 U.S. 294 (1967), and Johnson v. United

States, 333 U.S. 10 (1947), which were all Fourth

Amendment cases.

It is petitioner’s position that the California Su-

preme Court has erroneously interpreted the Fourth

—

Amendment. In fact, this Court has never held that

an arrest warrant is required in order to make an

arrest based on probable cause, whether in the home

or elsewhere. See Gerstein v. Pugh, 420 U.S. 103, 113

(1975). Such a requirement has been discussed by

the Court, if at all, only by way of dicta. Indeed, in

Coolidge, the case most heavily relied upon below,

the dicta was only concurred in by four justices of

this Court.

Petitioner respectfully urges this Court to exercise

its authority as the final arbiter of federal constitu-

tional questions. It is felt that the California Su-

preme Court’s interpretation of the United States

Constitution is contrary to the holdings of this Court.

Moreover, petitioner submits that the interpretation

below of article I, section 13, of the California Con-

stitution was grounded on the California Supreme

Court’s erroneous view of the Fourth Amendment,

since the pertinent provisions are virtually identical

in the respective constitutions (see App. C) and the

Court relied almost solely on Fourth Amendment

cases to support its decision.

Therefore, it is petitioner’s contention that an in-

terpretation of the Fourth Amendment contrary to

that given by the California Supreme Court herein

would be decisive and proper in this case, since it

appears that the interpretation of the federal con-

stitutional provision was largely determinative of

that given the corresponding state provision.

—

In addition, petitioner recognizes that the case of

United States v. Santana, No. 75-19, which has been

argued and is currently awaiting decision by the

Court, also presents the question regarding warrant-

less arrests within the home. It is respectfully urged

that in the interest of maintaining uniform - inter-

pretation of constitutional principles, this Court

should decide the Fourth Amendment issue involved

in the instant case.

* * * * *

ARGUMENT

Under the Fourth Amendment of the United States Consti-

tution, Warrantless Arrests Within the Home Are Not

per se Unreasonable in the Absence of Exigent Circum-

stances

This Court has held, without deviation, that proba-

ble cause is sufficient to support a felony arrest with

or without a warrant. At common law and in all 50

states this has been the uniformly accepted rule,

whether or not there was sufficient time to obtain a

warrant. In Carroll vy. United States, 267 U.S. 132,

156-157 (1975), this Court stated:

“|. , [A] police officer may arrest without a

warrant one believed by the officer upon reasona-

ble cause to have been guilty of a felony, and

. he may only arrest without a warrant one

guilty of a misdemeanor if committed in his

presence. ”’

ep

Since Carroll, this Court repeatedly has uphe'4

warrantless arrests on probable cause. One of those

eases, Henry v. United States, 361 U.S. 98 (1959),

involved 18 U.S.C. 3052, a statute authorizing agents

of the Federal Bureau of Investigation to make war-

rantless arrests. The Court, speaking through Mr.

Justice Douglas, held that the statute ‘‘states the

constitutional standard’’ (361 U.S. at 100). In Ger-

stein Vv. Pugh, 420 U.S. 1038, 113 (1975), the Court

observed that probable cause arrests never have been

invalidated solely because officers failed to obtain a

warrant.

In light of the constitutional history and applicable

precedents, petitioner submits that, as a general prop-

osition, warrantless felony arrests on probable cause

are unquestionably constitutional. See United States

J fee See if Seer (1976), 44 L.W.

4112 (Jan. 26, 1976).

Nor should a different constitutional standard apply

where the probable cause felony arrest takes place

within a dwelling. Again, both the English common

law and decisions of this Court have acknowledged

the power of officers to make warrantless arrests in

private places. As early as 1603, in Semayne’s Case,

5 Co. Rep 9/a, 77 Eng. Rep. 194, the King’s Bench,

while recognizing that ‘‘the house of every one is to

him as his ... eastle and fortress, as well fur his

defence against injury and violence, as for his e-

pose. ..,’’ concluded that his house furnished no

refuge when he had committed a felony. It declared

— eo

that ‘‘[iJn all cases when the King... is a party,

the sheriff (if the doors be not open) may break the

party’s house, either to arrest him, or to do other

execution of the K[ing]’s process, if otherwise he

cannot enter. But before he breaks it, he ought to

signify the cause of his coming, and to make request

to open doors. .. .”’

This seems to have continued in England as the

general rule. See Sheppard, The Offices of Constables,

ch. 8, § 2, No. 4 (1650); 1 Hale, Pleas of the Crown,

582-583 (1847). Other commentators were of the

opinion that, in the absence of fresh pursuit, a

warrant “ould be obtained before breaking doors.

See 2 Hawkins, Pleas of the Crown, ch. 14, § 7

(1787); Coke, Fourth Institute of the Laws of Eng-

land 177 (1797). However, no one questioned the

rule that if force were not used to enter, no warrant

was necessary.

Indeed, nothing in the history of the Fourth

Amendment indicates that the framers desired to up-

set the settled practice allowing warrantless entries

to effect felony arrests.' In both England and the

United States the rule permitting such entries has

become so well settled that until recently it has

received only the most casual treatment by com-

mentators.

' The chief concern of the common law, as well as the framers, ap-

parently was with searches and arrests authorized by general

warrants and supported by less than probable cause. See gen-

erally, Taylor Two Studies in Constitutional Interpretation,

27-43 (1969).

—_—

This Court has acknowledged the validity of war-

rantless entries to effect probable cause arrests.

Perhaps the first case presenting the question was

Johnson v. United States, 333 U.S. 10 (1948). There

officers entered a hotel room and arrested the oe-

cupant for drug offenses. The Court held that a

warrant was required to enter the room under the

circumstances of the case beeause, sinee the officers

did not know the identity of the individual within,

the entry could not be justified as an arrest entry.

The Court indicated, however, that if the officers had

known the identity of the person to be arrested, they

eould have entered without a warrant to make an

arrest ‘‘for a crime committed in the presence of the

arresting officer or for a felony of which he had

reasonable cause to believe defendant guilty’? (333

U.S. at 15; footnote omitted). See also Trupiano vy.

United States, 334 U.S. 699 (1947); United States v.

Rabinowitz, 339 U.S. 56 (1950).

In Miller v. United States, 357 U.S. 301 (1958),

this Court held inadmissible evidence seized in the

defendant’s apartment following an unannounced,

varrantless breaking of the door to gain entry to

arrest. However, it was indicated that, if the proper

announcement had been made, the entry, arrest and

seizure of evidence would have been proper. 357 U.S.

at 302--508.

Ker v. California, 374 U.S. 23 (1963), held that

the standards of conduct applicable to the federal

government under the Fourth Amendment also apply

Sa ED a OE a ey Sa Sr San

—

to the States under the Fourteenth Amendment. The

official conduct involved in Ker was a warrantless

entry into an apartment for the purpose of making

a warrantless arrest. The Court upheld the warrant-

less entry. Even the dissenters contended only that the

officers had not adequately announced their authority

and purposes before breaking into the apartment. 374

1.8. at 47-49 (Brennan, J., dissenting in part). No

justice questioned the rule that a warrantless forcible

entry properly can follow such an announcement, and

four justices expressly adopted that rule.

Finally, in Sabbath v. United States, 391 U.S. 585

(1968), the Court again indicated that an entry to

make an arrest on probable cause is reasonable under

the Fourth Amendment if preceded by the proper

announcement and demand. It wrote: ‘*This Court

has held... that the validity of an entry of a

federal officer to effect an arrest without a warrant

‘must be tested by criteria identical with those em-

bodied in’ [18 U.S.C. 3109]”’ (391 U.S. at 588, foot-

note omitted, quoting from Miller, supra, 357 U.S.

at 306). Seetion 3109 authorizes forcible entry after

notice of authority and demand to enter. Although the

Court held that an unannounced entry through an

unlocked but closed door did not meet with criteria

of section 3109, the proposition that the arrest entry

would have been upheld if the requirement of an-

nouncement had been observed is implicit in its deci-

sion.

—

Although none of these cases expressly holds that

warrantless arrest entries are presumptively reason-

able within the meaning of the Fourth Amendment, all

of them appear to accept the common law rule as so

much a part of our jurisprudence that it could be

acknowledged without the need for a formal holding.

There was little need to endorse the rule simply be-

cause defendants in criminal cases did not challenge it.

Apparently no cases decided by this Court have

supported a contrary conclusion, although doubts have,

on occasion, been expressed. In Jones v. United States,

357 U.S. 493, 499-500 (1958), the Court’s holding eu-

abled it to avoid ‘‘a grave constitutional question,

namely, whether the forceful nighttime entry into a

dwelling to arrest a person reasonably believed within,

upon probable cause that he had committed a felony,

under circumstances where no reason appears why an

arrest warrant could not have been sought, is consist-

ent with the Fourth Amendment.’’ Such dicta, how-

ever, is not apropos to the instant case, since the

entry herein was neither forceful nor at night.

Four justices reasoned in Coolidge v. New Hamp-

shire, supra, 403 U.S. at 476-481, that ‘‘[i]t is clear

.. . that the motion that the warrantless entry of a

man’s house in order to arrest him on probable cause

is per se legitimate is in fundamental conflict with the

basis principle of Fourth Amendment law that

searches and seizures inside a man’s house without a

warrant are per se unreasonable in the absence of

a

— 2a

some one of a number sca defined ‘exigent circum-

stances’ ’’ (403 U.S. at 477-478). However, the plural-

ity in Coolidge found it unnecessary to resolve this

conflict and the common law rule stands today.’

There is no persuasive reason to abandon the settled

practice of allowing warrantless felony arrests which

has been followed by courts and legislatures for cen-

turies. Though history and stare decisis are important

factors to be considered in this regard, they are not

the sole support of petitioner’s position. The Amer-

ican Law Institute’s recently completed study of pre-

arraignment procedures concluded that officers should

continue to be empowered to make warrantless arrest

entries. American Law Institute, A Model Code of

Pre-Arraignment Procedure, § 120.6(1) (Official

Draft 1972). The traditional rule would only he

changed to the extent of establishing a presumptive

need for a warrant to make an arrest in the night-

* The plurality in Coolidge believed that ‘‘ {t]he case of Warden v.

Hayden, {387 U.S. 294 (1967)], where the Court elaborated

a ‘hot pursuit’ justification for the police entry into defend-

ent’s house without a warrant for his arrest, certainly stands

by negative implication for the proposition that an arrest war-

rent is required in the absence of exigent circumstances.’’

403 U.S. at 480-481. We respectfully disagree with this anal-

ysis. Hayden used the ‘‘hot pursuit’’ justification both to jus-

tify the entry to make an arrest and to justify the thorough

search of the house in which the suspect was hiding. The offi-

cers searched, for example, the contents of a washing machine.

Whether or not the officers were at liberty to enter to make the

arrest, the ‘‘hot pursuit’’ justification would have been neces-

sary to support the extensive search. Moreover, we do not be-

lieve that a rule so long established in Anglo-American law

can be rejected by ‘‘negative implication.’’ Nor has the Court

interpreted Hayden in the fashion suggested by the Coolidge

plurality. See Sabbath, supra.

=

time, absent exigent circumstances (id. at § 120.6(3)

(b)). It is there explained that the requirement of

probable cause for a daytime arrest provides ample

protection to the legitimate interests of the individual.

‘*To go further and require a warrant or a showing

of necessity before police may make a felony arrest

on private property even in daytime seems unduly

restrictive.’’ (/d. at 146.)

The California Supreme Court in the instant case,

as well as several other courts which have recently de-

cided this question contrary to our position,’ have

stressed a concern for symmetry between the law of

search and seizure and the law of arrest. It is usually

reasoned that the law should provide at least as much

protection for the person of an individual as is pro-

vided his possessions. It is submitted, however, that

there are important distinctions between the two con-

cepts which were recognized during the development

of the common law, by the framers of the Fourth

Amendment, by modern legislatures, and by most

courts today. In the last analysis, reasonableness, not

the presence or absence of a warrant, is the test. The

question is not whether it would have been reasonable

? See, eg. Dorman v. United States, 435 F.2d 385 (D.C. Cir.

1970); Vanee v. North Carolina, 432 F.2d 984 (4th Cir.

(1970); United States v. Shye, 492 F.2d 886 (6th Cir. 1974) -

United States v. Phillips, 497 F.2d 1131 (9th Cir. 1974) ; Com-

monwealth v. Forde, 329 N.E.2d 717 (Mass. 1975).

—

to get a warrant, but whether the official action was

reasonable. Cooper v. California, 386 U.S. 58 (1967) ;

United States v. Edwards, 415 U.S. 800 (1974).

The interest of law enforcement in apprehending

felons, preventing escape, protecting possible future

victims and preventing the possible destruction of

evidence weighs heavier than the seizure of mere

evidence of a erime. Persons are inherently mobile

while things are not. Moreover, entries to make ar-

rests are, generally, less, not more, intrusive than

entries to search for things. Ordinarily, when officers

arrive at a house for the purpose of arresting a par-

ticular individual, that individual will come to the

door and aecede to the officer’s demand, and no entry

into the premises will be required. A search, on the

other hand, will necessarily require intrusion into the

premises. Even if the individual sought attempts to

hide, the scope of the search for his person will be far

less intrusive than the typical search, since it will

involve no rummaging through private papers, draw-

ers, cupboards, medicine cabinets or the like.

To summarize, the distinctions which developed be-

tween the law of arrest and the law of search and

seizure were not accidental. The different considera-

tions were recognized and the standards of reason-

ableness which developed, thou, not identical, reflect

those distinct considerations. In short, ‘‘reasonableness

=

for an arrest entry requires probable cause coupled

with complianee with pertinent knock and notice stat-

utes, while ‘‘reasonableness’’ for a search of a dwell-

ing requires a warrant. The Supreme Court of Cali-

fornia has relied on dicta in Coolidge* and other cases

to arrive at an erronecus interpretation of the Fourth

Amendment. Petition would urge this Court to cor-

rect such interpretation.

CONCLUSION

The California Supreme Court has interpreted the

Fourth Amendment of the United States Constitution

and article I, section 13, of the California Constitu-

tion to require arrest warrants for non-exigent ar-

rests made within the home. Since the provisions of

the two constitutions are virtually identical and the

Court below relied completely on Fourth Amendment

law, petitioner submits that the California Supreme

Court’s misconception of the Fourth Amendment is

at the bottom of its decision herein. For the reasons

discussed above, it is felt that the interpretation of

the Fourth Amendment given below is in error. Pe-

* Even if dicta could properly be relied upon, the Coolidge case

is sufficiently distinguishable so as to be of no support to the

Court below. Indeed, the very statement of the constitutional

right suggested |yy the Coolidge plurality (that warrants are

required to make an entry in the absence of exigent circum-

stances) demonstrates its inapplicabliity to cases like the pres-

ent. (Coolidge, at 480.) The officers did not enter Ramey’s

residence in search of him; they simply followed him through

the door. No ‘‘search’’ for him was necessary and none was

conducted.

—

titioner respectfully urges, therefore, that the writ

of certiorari be granted.

Respectfully submitted,

EVELLE J. YOUNGER

Attorney General

JACK R. WINKLER

Chief Assistant Attorney General

Criminal Division

ARNOLD O. OVEROYE

Assistant Attorney General

JOEL CAREY

Deputy Attorney General

J. ROBERT JIBSON

Deputy Attorney General

Attorneys for Petitioner

APPENDIX A

SUPREME COURT

FILED

Feb. 25, 1976

G. E. BISHEL, Clerk

COPY

IN THE SUPREME COURT

OF THE

STATE OF CALIFORNIA

IN BANK

THE PEOPLE,

Plaintiff and Respondent, Crim. 18793

ve ) (Super. Ct.

MICHAEL KENNETH RAMEY, | No, 44054)

Defendant and Appellant.

Defendant was charged by information with pos-

session of marijuana for sale, possession of ampheta-

mines, and possession of a sawed-off shotgun. He

pleaded not guilty and moved to suppress the evi-

dence pursuant to Penal Code section 1538.5. The

motion was granted in part and denied in part. There-

after defendant negotiated a plea whereby he pleaded

guilty to the lesser included offense of possession of

marijuana (Health & Saf. Code, § 11357), and the

prosecution dropped the remaining counts. Defendant

now appeals, asserting as error the partial denial

of his motion to suppress. (Pen. Code, § 1538.5, subd. ~

(m).)

On July 30, 1973, the residence of one James

Turner of Sacramento was burglarized. Among the

items taken were several firearms, one of which was

—

a distinctive weapon, a .38 caliber Smith & Wesson

Airweight. Turner immediately reported the burglary

to the Sacramento police.

Turner, who was a licensed private investigator

and former security guard, also decided to investigate

his own ease. His inquiries led him to two individuals,

Reed and Weaver. Reed informed Turner that de-

fendant Ramey had purchased the stolen weapon

from Weaver. Turner was slightly aequainted with

defendant, and decided to confront him about the

stolen weapon.

On the afternoon of August 17, 1973, Turner went

to defendant’s home. Defendant first told Turner he

had been offered the stolen weapon but had not

purchased it. Turner insisted he had heard that de-

fendant had bought the Airweight. Defendant re-

sponded, ‘toh, that one,”’ and said he had not known

it was Turner’s.' Defendant then admitted he had

owned it briefly but said he had sold it to ‘*some

white guy.’’ When pressed for details, defendant

could not supply any further information concerning

the purchaser. Turner considered defendant’s man-

ner and responses evasive and believed he was still

in possession of the stolen weapon.

Turner again contacted the Sacramento police and

spoke to Detective Joel Garcia. He related to Garcia

the chain of events leading him to defendant’s resi-

dence and his suspicion aroused by his conversation

with defendant. Garcia concluded from Turner’s in-

formation that there was probable cause to arrest

1 Some time later, defendant’s brother entered the room and de-

fendant said, ‘‘Remember that .38 we just got rid of? It be-

longed to him [indicating Turner].’’

—

defendant for the offense of receiving stolen prop-

erty.”

After a delay of some three hours, Garcia and six

other officers proceeded to defendant’s residence to

effect the arrest of defendant and his roommate. As

is the standard departmental practice, Garcia did

not secure an arrest warrant prior to the prospective

arrest.”

Upon arriving at the apartment the officers drew

their service revolvers and knocked. Defendant

opened the door, and the officers identified them-

selves and casplaved their badges. Defendant backed

away towards a portable bar in the living room. The

police followed him in, and when defendant was seen

to reach behind the bar one of the officers grasped his

arm and placed him under arrest. Detective Garcia

looked behind the bar and found a .45 ealiber pistol,

three ‘lids’? of marijuana in cellophane baggies, and

a baggie containing tablets appearing to be benze-

drine. The officers then seized other marijuana in

plain view.

* Turner also told Garcia that while he was in the Ramey apart-

ment another occupant brought out two handguns; there was

no indication, however, that the guns were other than lawfully

possessed, In addition, Turner said he saw some marijuana

in the living room, but Garcia did not believe there was prob-

able cause to arrest for a narcotics violation because there was

no showing that Turner was experienced in the field of nar-

cotics identification.

* fa response to a question by defense counsel as to whether there

had been any attempt to obtain an arrest warrant, Garcia tes-

tified: ‘‘That is not our practice in burglary. We just go out

there and arrest the people when they're readily available. If

thev’re not available, then we'll submit for an arrest warrant

and put [it] on the NCIC computer so they can arrest in

Fresno or wherever they are.’”’

<=

After placing defendant and his roommate under ar-

rest the police searched the entire premises, discover-

ing additional contraband. None of the items found,

however, related to the Turner burglary. At the sec-

tion 1538.5 hearing only those items of evidence seized

in the living room were ruled admissible; the re-

mainder was ordered suppressed under the rule oi

(Chimel vy. California (1969) 395 U.S. 752.

Defendant attacks the validity of the seizure on the

ground that the arrest itself was unlawful, thereby

vitiating any claim that the search was conducted in-

cident to a valid arrest. He charges illegality on two

alternate theories. First, it is urged that Turner was

an untested informant whose credibility had not been

established and whose information thus could not fur-

nish probable cause to arrest. Secondly, it is contended

that even if there was probable cause the arrest was

nevertheless invalid because article I, section 13, of

the California Constitution and the Fourth Amend-

ment to the federal Constitution require that in the

absence of exigent circumstances a warrant must be

obtained prior to an intrusion into the home for the

purpose of effecting an arrest.

The issue of probable cause turns on the facts

known to Detective Garcia prior to the arrest. Ilere

the sole source of that knowledge was the information

related to Garcia by Turner. The question is whether

it was reasonable for Garcia to rely on that informi-

tion.

The courts have recognized a distinetion between

informers who are virtual agents of the police and

— 5 —

‘‘citizen informants’? who are chance witnesses to or

victims of crime. The former are often criminally dis-

posed or implicated, and supply their ‘‘tips’’ to the

authorities on a recurring basis, in secret, and for

pecuniary or other personal gain. The latter are in-

nocent of criminal involvement, and volunteer their

information fortuitously, openly, and through motives

of good citizenship. (See generally People v. Schulle

(1975) 51 Cal. App.3d 809, 814-815, and cases cited.)

secause of these characteristics, the requisite showing

of reliability in the case of a citizen informant is sig-

nificantly less than that demanded of a_ police in-

former. (People v. Duren (1973) 9 Cal.3d 218, 240;

Krauss v. Superior Court (1971) 5 Cal.3d 418, 421-

422, and cases cited.)

It may therefore be stated as a general proposition

that private citizens who are witnesses to or victims

of a criminal act, absent some circumstance that would

cast doubt upon their information, should be consid-

ered reliable. This does not, of course, dispense with

the requirement that the informant—whether citizen

or otherwise—furnish underlying facts sufficiently de-

tailed to cause a reasonable person to believe that a

crime had been committed and the named suspect was

the perpetrator; and the rule also presupposes that

the police be aware of the identity of the person pro-

viding the information and of his status as a true

citizen informant. (People v. Abbott (1970) 3° Cal.

App.3d 966, 970-971.) In short, probable cause will not

he provided by conclusionary information or anony-

mous informants, but neither a previous demonstra-

tion of reliability nor subsequent corroboration is

ordinarily necessary when witnesses to or victims of

—

criminal activities report their observations in detail

to the authorities.*

In the present case Detective Garcia could reason-

ably believe that Turner was a citizen informant as

herein defined. Moreover, an additional demonstration

of reliability was presented in Turner’s ongoing re-

lationship with the Sacramento police: while his oceu-

pation would not of itself cloak him with any pre-

sumption of credence, there was evidence that 'e ‘ied

dealt with the Sacramento police on other cecasions

Without raising doubts as to his trustworthiness. For

all these reasons, Detective Garcia could accept as

true Turner’s representations as to the circumstances

which led him to defendant’s residence, and the state-

ments which defendant there made.

Having established that Turner was a reliable in-

formant, we consider the remaining question whether

the information he supplied was sufficient to constitute

probable cause to believe defendant guilty of the crime

of receiving stolen property.

Defendant contends vic information given to Garcia

consisted mainty of Tuyner’s mere speculation that de-

fendant was still im pos e sien of the stolen Airweicht.

However, Garcia testified that he believed there was

probable cause to arrest defendant for the offense of

receiving stolen property, a erime which does not

necessitate continuing possession of the goods. (Pen.

Code, \ 496, subd. 1.)

With regard to this offense there was ample show-

ing to support a conclusion of probable cause. The key

‘To the extent that People v. Legard (1970) 12 Cal. App.3d 1006,

1010, implies a stricter standard for judging the reliability of

a citizen informant, it is disapproved. (See People v. Schulle

(1975) supra, 51 Cal. App.3d 809, 816 & fn. 2.)

=

evidence, of course, was defendant’s own admission to

Turner that he had purchased the weapon and had

actually ‘‘received”’ it. After this admission the only

element of the offense still open to question was de-

fendant’s subjective knowledge that the weapon was

stolen. This is an element which must be inferred

from the circumstances. As we recently stated in Peo-

ple v. Martin (1973) 9 Cal.3d 687, 696, ‘* Possession

of a stolen item in and of itself is a factor which could

assist a reasonable person in formulating a strong sus-

picion that the recipient knew the item was stolen.”

In addition, defendant apparently came into possession

of the gun shortly after the burglary; he did not dis-

close to Turner the identity of the person from whom

he had purchased it; and he conceded that he quickly

‘oot rid of? the guy by selling it to an apparent

stranger. Taken together, these circumistauces st) -

ported an inference of guilty knowledge. Detective

Garcia therefore had probable cause to arrest defend-

ant for the erime of receiving stolen property.

But this determination does not end our inqriry.

De "endant further contends that even if there was

probable cause, the arrest was invalid because of the

faiure of the police to secure an arrest warrant prior

to intruding into the privacy of his home. It is urged

that just as warrantless searches of a private dwelling

are unreasonable per se in the absence of one of a

small number of earefully cireumseribed exceptions

(Vale v. Louisiana (1970) 399 U.S. 30, 34-35, and

eases cited), so too are warrantless arrests within the

home unreasonable unless there are exigent c¢ireum-

— -*

stances sufficient to justify dispensing with the war-

‘ant requirement. The People respond that in Cali-

fornia an arrest without a warrant may be made

whenever the police have reasonable cause to helieve

the suspect has committed a felony (Pen. Code, § 836),

and that the only condition precedent to an arrest

within the home is that the police comply with the

statutory ‘*knock and notice”? provision (Pen. Code,

» 844). Defendant recognizes that no statute imposes

the requirement he now asks us to adopt, but asserts

that the legislative silence on the matter is overridden

by the demands of the Constitution.

Our analysis proceeds from the premise that the

proscriptions of unreasonable searches and seizures

contained in article I, seetion 13, of the California

Constitution and the Fourth Amendment to the United

States Constitution embrace seizures of the person as

well as seizures of property. The authority for this

proposition appears first in the language of the Con-

stitution itself. In pertinent part article I, section 13,

of the California Constitution forbids any violation of

The right of the people to be secure in their persons,

[and] houses, ... against unreasonable seizures,’? and

declares that no warrant shall issue except on probable

cause particularly describing ‘‘the persons ... to be

seized.”’ The Fourth Amendment uses similar wording.

The United States Supreme Court has not yet re-

solved the issue of whether the Fourth Amendment

reyuires a warrant for arrests within the home. How-

ever, in Coolidge v. New Hampshire (1971) 403 U.S.

445, five members of the court expressed agreement

with the proposition that ‘‘It is clear, then, that the

notion that the warrantless entry of a man’s house in

order to arrest him on probable cause is per se legiti-

—=

mate is in fundamental conflict with the basie prin-

ciple of Fourth Aimendment law that searches and

seizures inside a man’s house without warrant are

per se unreasonable in the absence of some one of a

number of well defined ‘exigent circumstances.’ ”’ (/d.

at pp. 477-478.) Rejecting Justice White’s dissenting

views on this point, the majority observed (at p. 480)

that ** If we were to agree with Mr. Justice White that

the police may, whenever they have prohable cause,

make a warrantless entry for the purpose of making

an arrest, ... then by the same logie any search or

seizure could be carried out without a warrant, and

we would simply have read the Fourth Amendment out

of the Constitution. Indeed, if Mr. Justice White is

correct that it has generally been assumed that the

Fourth Amendment is not violated by the warrant-

less entry of a man’s house for purposes of arrest, it

might be wise to re-examine the assumption. Sueh a

re-examination ‘would confront us with a grave consti-

tutional question, namely, whether the forceful night-

time entry into a dwelling to arrest a person reason-

ably believed within, upon prol dle cause that he had

committed a felony, under circumstances where no

reason appears Why an arrest warrant could not have

been sought, is consistent with the Fourth Amend-

ment.’ Jones vy. United States, 357 U.S., at 499-500

fper Harlan, J.J.’ (Italies m original.)

As additional authority the majority pointed to the

case of Warden v. Hayden (1967) 387 U.S. 294: that

decision, ‘‘where the Court elaborated a ‘hot pursuit’

justification for the police entry into the defendant’s

house without a warrant for his arrest, certainly

stands by negative implication for the proposition that

an arrest warrant is required in the absence of exigent

—_ vo

circumstances. See also Davis v. Mississippi, 394 U.S.

721, 728; Wong Sun v. United States, 371 U.S., at

481-482.” (/d. at pp. 480-481.) Citing Dorman v.

United States (1970) 435 F.2d 385, the majority also

noted (at p. 481) that **The Court of Appeals for the

District of Columbia Circuit, sittmg en banc, has

unanimously reached the same conelusion.”’

In the circumstances of Coolidge, however, the court

found it unnecessary to decide the issne, holding

(ibid.) that the warrant requirement for searches **is

not so frail that its continuing vitality depends on the

fate of a supposed doctrine of warrantless arrest.”

(Italies added.) Since Coolidge, the point has not been

squarely adjudicated. (See, e.g., United States v. Wat-

som (ERIS) nce US. ccony cone, Bh &)”

Our own cases, although frequently referring to the

statutory formula for making warrantless arrests

(see, e.g., People v. Fein (1971) 4 Cal.8d 747, 752),

have never truly confronted the issue of the constitu-

tionality of warrantless arrests in the home. Defend-

ant relies heavily on language in People v. Privett

(1961) 55 Cal.2d 698, 703, where we stated: ‘The

sanctity of a private home is not only guaranteed by

the Constitutions of the United States and of our own

state, but it is traditional in our Anglo-Saxon herit-

age. “A man’s home is his castle’ is, and should be,

more than an empty phrase. The Constitutions them-

selves point to the proper procedure to be followed in

invading this precious sanctity. . . . There was no

emergency in this case which would have prevented

the officers from seeking a warrant from a magistrate

to enter this home. ... Although a private home may

44 U.S.L. Week 4112, 4114, footnote 6.

_—

be broken into without a warrant, even in the night-

time, if probable cause exists, in doubtful cases the

householder should be entitled to have the protection

of the independent judgment of a magistrate before

the constitutionally guaranteed sanctity of his home

is invaded.’’ But this language, like that in Coolidge,

was dictum; and while persuasive, it does not defin-

itively resolve the constitutional question.

Nevertheless, a number of federal and state appel-

late courts have been squarely presented with the

issue, and have rendered decisions in conformity with

the sentiments expressed in Coolidge and Privett.

First, as the Supreme Court noted in its Coolidge

opinion, the Court of Appeals for the District of

Columbia Circuit, sitting en bane, unanimously held

that in the absence of a true emergency a warrantless

entry into a home arrest a suspect violates the

Fourth Amendment. (Dorman vy. United States (1970)

supra, 435 F.2d 385.) The court reasoned that **The

Fourth Amendment protects a right of privacy. This

is a right that is increasingly recognized in decisions

involving this and other provisions of the Constitu-

tion as a core protection safeguarding all citizens

against unwarranted intrusions by police and other

government officials.

‘“‘The Fourth Amendment provides protection even

as to arrest in a public place, though in such cases the

requirement is only that there be probable cause and

there is no additional requirement of recourse to a

warrant. A greater burden is placed, however, on

officials who enter a home or dwelling without consent.

Freedom from intrusion into the home or dwelling is

the archetype of the privacy protection secured by the

=

Fourth Amendment. In general a home may not be

searched without a warrant notwithstanding probable

cause.’’ (Fns. omitted.) (Jd. at p. 389.) Reviewing a

number of Supreme Court decisions, the court con-

cluded that ‘“‘the requirement of a warrant may be

excused where circumstances do not tolerate delay,

like that incident to obtaining a warrant, of an officer

making an arrest. But the basic principle, the consti-

tutional safeguard that, with room for exceptions,

assures citizens the privacy and security of their

homes unless a judicial officer determines that it must

be overridden, is applicable not only in case of entry

to search for property, but also in case of entry in

order to arrest a suspect.’ (Italies added.) (1d. at

p. 390.)

Identical views have been expressed by other fed-

eral appellate courts. In Vanee vy. North Carolina

(1970) 4382 F.2d 984, the Court of Appeals for the

Fourth Cireuit impliedly adopted the position in

Dorman that ‘tan arrest inside a dwelling without a

warrant, or pursuant to an invalid warrant, is per sé

unreasonable under the fourth amendment unless

there are ‘exigent circumstances’ justifying the police

in bypassing a magistrate... .°° (/d. at p. 990.)

Similarly, in United States v. Shye (1974) 492 F.2d

886, the Court of Appeals for the Sixth Circuit ap-

plied as the rule of Dorman the principle that ‘‘the

warrantless entry of a dwelling to arrest [is] put on

the same constitutional footing as warrantless entry

of a dwelling for a search. See: Coolidge v. New

Hampshire, 403 U.S. 443, at 454-455. ... Entry in

both instances is per se unreasonable unless ‘exigent

circumstances’ justify the failure to obtain the war-

—

rant.”’ (Jd. at p. 891.) Again, in United States v.

Phillips (1974) 497 F.2d 1131, 1135, the Court of

Appeals for the Ninth Circuit cited Dorman for the

proposition that ‘*The constitutional safeguard that

assures citizens the privacy and security of their homes

unless a judicial officer determines that it must he

overraden, is applicable not only in case of entry to

searcn for property, but also in cases of entry to

arrest a suspect.’ (See also Salvadore v. United

States (8th Cir. 1974) 505 F.2d 1348, 1351-1352. )

The most recent state court decision recognizing

that the warrant requirement applies to arrests within

the home was rendered by the Supreme Court of

Massachusetts. (Commonwealth vy. Forde (1975) 329

N.E.2d 717.) Prior to Forde the law in Massachusetts

permitted police officers to conduct warrantless arrests

in homes on probable cause alone. (Commonwealth

v. Phelps (1911) 95 N.E. 868, 873.) Relying on the

above-quoted dictum of Coolidge (403 U.S. at pp.

477-478), the Massachusetts court reasoned that ‘‘The

right of police officers to enter into a home, for what-

ever purpose, represents a serious governmental intru-

sion into one’s privacy. It was just this sort of intru-

sion that the Fourth Amendment was designed to

circumseribe by the general requirement of a judicial

determination of probable cause. [Citations.] The dis-

tinction between an entry to search and an entry to

arrest is slight, for the latter may well be charac-

terized as simply a search for a person rather than a

search for things. [Citations.] Moreover, it can he

argued that an entry to arrest is a far greater intru-

sion than an entry to search. Coolidge v. New Hamp-

shire, supra, 403 U.S. at 479-480, 91 S.Ct. 2022. The

exigencies which would excuse the lack of an arrest

— io

warrant may differ from those supplying the excuse

for the lack of a search warrant. In any event, the

police are required to demonstrate that exigency. In

short, we believe that the Fourth Amendment pro-

hibits a warrantless entry into a dwelling to arrest

in the absence of sufficient justification for the failure

to obtain a warrant.) While this conclusion departs

from the old law of the Commonwealth, the same

result has been reached by nearly every court to ad-

dress the issue in recent years. [Citations.]’’ (/d. at

pp. 722-723.)

Our own view of the matter comports with the

Coolidge dietum and the opinions in the above-cited

state and federal cases. An intrusion by the state into

the privacy of the home for any purpose is one of the

mest awesome incursions of police power into the li®e

of the individual. Unrestricted authority in this area

is anathema to the system of checks envisaged by the

Constitution. It is essential that the dispassionate

judgment of a magistrate, an official dissociated from

the ‘‘competitive enterprise of ferreting out crime”’

(Johnson v. United States (1947) 333 U.S. 10, 14),

be interposed hetwee. the state and the citizen at

this critical juncture. The frightening experience of

certain foreign nations with the unexpected invasion

of private homes by uniformed authority to seize in-

dividuals therein, often in the dead of night, is too

fresh in memory to permit this portentous power to

"In a footnote at this point the court specified that ‘‘Our holding

does not imply that warrantless arrests in general must be

justified by exigent circumstances excusing the lack of a war-

rant but, rather, is limited to warrantless entries of dwellings

for the purpose of making arrests within those dwellings.’’

(329 N.E.2d at p. 722, fn. 3.) Our holding herein is likewise

limited.

|

—

be left to the uninhibited diseretion of the police

alone.°

Moreover, it is incongruous to pay homage to the

considerable body of law that has developed to pro-

tect an individual’s belongings from unreasonable

search and seizure in his home, and at the same time

assert that identical considerations do not operate to

safeguard the individual himself in the same setting.

Where genuine exigencies exist, broad constitutional

mandates often give way to the necessity for immedi-

ate action, and an arrest is no exception to this rule.

but in the absence of a bona fide emergency, or con-

sent to enter, police action in seizing the individual in

the home must be preceeded by the judicial authoriza-

tion of an arrest warrant.

or the foregoing reasons we hold that the protec-

tion of article I, section 13, of the California Con *i-

tution and the Fourth Amendment of the federal

(‘onstitution against violation of the right of the peo-

ple to be secure in their persons and houses against

tnreasonable seizures applies to arrests within the

‘ome, and that warrantless arrests within the home

ave per se unreasonable in the absence of exigent cir-

evmstances.’

“As Justice Jackson warned not long after his experience as pros-

ecutor at the Nuremberg trials, ** Essential freedoms are today

threatened from without and within. It may become difficult

to preserve here what a large part of the world has lost. . . .”’

(Kunz v. New York (1951) 340 U.S. 290, 295 (dissenting

opn.).)

‘Insofar as it is to the contrary, People v. Williams (1971) 17

Cal. App.3d 554, 561-562, is disapproved.

We recognize that numerous prior decisions of this court and

the California Courts of Appeal have assumed the legality of

a warrantless entry into a home to make a felony arrest in

the absence of exigent circumstances, providing there is prob-

able cause. Accordingly, except as to the defendant in the case

at bar, the rule we now adopt will apply only to arrests made

after this opinion becomes final.

— 36 —

The remaining issue is whether there were exigent

circumstances justifying the warrantless arrest in the

present case. In this context, ‘‘exigent circumstances”’

means an emergency situation requiring swift action

to prevent imminent danger to life or serious damage

to property, or to forestall the imminent escape of a

suspect or destruction of evidence. There is no ready

litmus test for determining whether such circum-

stances exist, and in each ease the claim of an extra-

ordinary situation must be measured by the facts

known to the officers.

In the case at bar it is clear there was no imminent

danger to life or property, and no likelihood of flight

or destruction of evidence. Defendant was arrested for

the offense of receiving stolen property, a nonviolent

crime evidencing no propensity for endangering life.

While it is true the stolen article was a firearm, there

was no reason for Detective Garcia to assume the

weapon was available for immediate use; on the con-

trary, according to Garcia’s information the weapon

had been sold and was no longer in defendant’s pos-

session. The other firearms said to be in defendant’s

apartment had been freely shown to Turner. Detective

Garcia had no ground for inferring they were illegally

possessed or presented an imminent danger to life.

Thus the information on which Garcia acted tended

to show only that defendant had once received an item

of stolen property, was probably no ‘onger in posses-

sion of that item, and from all appearances was not

likely to be fleeing the jurisdiction. In addition, a de-

lay of some three hours occurred between the time the

information was given to Garcia and the arrest in de-

fendant’s home, during which period no effort what-

ever was made to obtain a warrant. The delay took

— ee

—

place in the middle of a weekday afternoon, while

magistrates were readily available for issuance of

warrants. In Commonwealth v. Forde (Mass. 1975)

supra, 329 N.E.2d 717, an identical three-hour oppor-

tunity to obtain an arrest warrant occurred at night,

yet the court nevertheless relied on it in part in re-

jecting a claim of emergency: ‘‘It is impossible to find

one’s way around the delay of three hours in seeking

the warrants. In the face of this delay the possible

warning of the defendant which most likely would

have been directed toward the destruction of evidence

rather than his escape does not achieve the level of an

exigency.”’

Because the contraband which formed the basis of

the conviction was thus seized incident to an invalid

arrest, the trial court erred in failing to grant the

motion to suppress in its entirety.

The judgment is reversed.

MOSK, J.

WE CONCUR:

WRIGHT, C. J.

TOBRINER, J.

SULLIVAN, J.

RICHARDSON, J.

= pe

COPY

PEOPLE v. RAMEY

Crim. 18795

DISSENTING OPINION BY CLARK, J.

Our deference toward the United States Supreme

Court is fast becoming a shell game. Opinions not

commanding a majority of that court are held econ-

trolling: authoritative opinions adhered to by a ma-

jority of the court are rejected. In reliance on mere

dictum in the plurality opinion in Coolidge v. New

Hampshire (1971) 403 U.S. 448, the majority in-

terpret the search and seizure clauses of the federal

and California Constitutions to prohibit warrantless

arrests within the home in the absence of an emer-

veney, overturning ‘‘numerous prior decisions of this

eourt and the California Courts of Appeal.” (Aute,

». —--_. fn. 7.*) By contrast, when the United States

Supreme Court authoritatively construed the Fourth

Amendment to pernit fill hacks search of a person

subjected to custodial arrest, regardless of his of-

fense or whether he is ultimately to be incarcerated

(United States v. Robinson (1973) 414 U.S. 218:

Gustafson vy. Florida (1973) 414 U.S. 260), a majority

of this court nevertheless interpreted virtually iden-

tical language in the California Constitution to) im-

pose a “more exacting standard.” ( People v. Brisen-

dine (1975) 13 Cal.3d 528; People v. Norman (1975)

14 Cal.3d 929.) To give but one mere example, when

the United States Supreme (Court authoritatively Can-

strned the Fifth Amendment to permit impeachment

of a defendant with his extrajudicial statements ob-

tained in violation of Miranda v. Arizona (1966) 384

US. 436 (Harris v. New York (1971) 401 U.S, 222),

the same majority of this court nevertheless inter-

Th is appendix, page 3). footnote 7

a

mae

preted virtually identical language in the California

Constitution to prohibit such impeachment. (People

Disbrow (1976) ---- Cal.3d —__-. )

Today, because it happens to coincide with their

own view, the majority resort to mere dictum in the

plurality opinion in Coolidge v. New Hampshire,

supra. However, as will be explained below, when

they disagreed with another aspect of the same opin-

ion, a majority of this court rejected it noting that

the issue had been considered by an equally divided

court, “and hence was not actually decided.”’ (Peo-

ple v. MeKinnon (1972) 7 Cal.3d 899, 911, italies in

the eriginal.) Moreover, contrary to the representa-

tion made by the majority, the dictum upon which

they now rely was not joined by five members of the

high court. It appears in Part IT D of the opinion

prepared for the court by Justice Stewart and signed

Vv Justices Douglas, Brennan and Marshall. Justice

Harlan coneurred in the judgment and in Parts I,

I] PD, and TLL of that opinion; however, his coneur-

ring opinion made it clear that he expressed no view

on the question before us." Furthermore, the dictum

‘Recent scholarship has suggested that in emphasizing the warrant

requirement over the reasonableness of the search the Court

has ‘stood the fourth amendment on its head’ from a historica!

standpoint. T. Taylor, Two Studies in Constitutional Interpre-

tation 23-24 (1969). This issue is perhaps most clearly pre-

sented in the case of a warrantless entry into a man’s home to

arrest him on probable cause. The validity of such entry was

left open in Jones v. United States, 35. U.S. 493, 499-500

Hos), and although my Brothers White and Stewart both

feel that their contrary assumptions on this point are at the

root of their disagreement in this case... the Court again

leaves the issue open. . . . In my opinion it does well to do so.

This matter should not be decided in a state case not squarely

presenting the issue and where it was not fully briefed and

argued. I intimate no vicw on this subject, but until it is ripe

for decision, I hope in a federal case, I am unwilling to lend

my support to setting back the trend of our POCO RE Ges Gas

403 U.S. at p. 492 (Harlan, J.. coneurring), italies ade led.)

|

ae

in the plurality opinion no longer expresses the view

of even four members of the court, Justice Douglas

having retired in the interim.’

Actually, rather than supporting the majority’s po-

sition, the reasoning of the plurality opinion in

Coolidge supports the conclusion that, because of the

ever-present danger of escape arising from man’s

characteristic ‘‘mobility.’’ entry into a residence to

effect a probable cause arrest need not be delayed

until a warrant is obtained.

In Coolidge, the court considered the scope of the

‘‘automobile exception”’ to the general rule that prob-

able cause to believe contraband will be found con-

cealed in certain property does not justify a war-

rantless search that is neither consensual nor inci-

dental to a lawful arrest, absent an emergency. The

ground for this exception was reiterated in Chambers

v. Maroney (1970) 399 U.S. 42, 51: ‘‘Carroll [v.

United States (1925) 267 U.S. 132] holds a search

warrant unnecessary where there is probable cause

to search an automobile stopped on a highway; the

car is movable, the occupants are alerted, and the

*The reliability of the dictum was further undercut recently by

United States v. Watson (1976) U.S. , 44 U.S.L. Week

4112. In Watson, the court held that the Fourth Amendment

permits a police officer to make a warrantless felony arrest in

a public place even though the officer has an adequate oppor-

tunity to obtain a warrant after developing probable cause

for arrest. Watson did not present the question whether war.

rantless probable cause arrests within the home are permissible

in the absence of an emergency. (44 U.S.L.Week at pp. 4114,

fn. 6, 4116 (Stewart, J., concurring in the result), 4118 (Pow-

ell, J., concurring).) However, as the dissent pointed out, the

reasoning of the Watson majority strongly suggests that the

high court will eventually resolve this question in favor of the

constitutionality of such arrests. (See 44 U.S.L.Week at p.

4125 (Marshall, J., dissenting). )

—

car’s contents may never be found again if a war-

rant must be obtained. Hence an immediate search is

constitutionally permissible.”’

In Chambers v. Maroney, supra, police stopped a

vehicle based on eyewitness descriptions of robbers

and their getaway car. The occupants were arrested,

but the car was not searched at the scene. Instead, it

was driven to the police station where a later search

revealed weapons and incriminating evidence hidden

under the dashboard. Affirming a denial of federal

habeas corpus after convictions of robbery, the high

court that a search—reasonable at the time and place

the car was stoppel—does not become unreasonable

because conducted later at the police station.

In Coolidge, after arresting a murder suspect in his

home, police seized his automobile and searched it

later at the police station, finding evidence that the

victim had been inside the vehicle. The members of

the court signing the plurality opinion found the auto-

mohile exeeption to the warrant requirement inappli-

cable because there was no real danger that the ve-

hicle would be moved before a search warrant could

he obtained. The murder suspect had been arrested.

His wife, the only other adult oeeupant of the house

had been informed by the police that she had to spend

the rest of the night elsewhere and that she could not

use the car. Two policemen then drove her to the house

of a relative in another town, and they stayed with her

until midnight, long after the car had been towed to

the police station. In the interim, the car had been

parked in the driveway of the Coolidge residence,

which was guarded throughout the night by two po-

licemen.

—_

In People v. MeKinnon noted above, this court de-

clined to follow the portion of the Coolidge plurality

opinion ‘‘which purports to narrow the Carroll-

Chambers rule.”’ (7 Cal.3d at p. 911.) In McKinnon,

this court held that a chattel consigned to a common

carrier for shipment may lawfully be searched upon

probable cause to believe it contains contraband. In

People v. MeGrew, 1969) 1 Cal.3d 404, this court had

reached the opposite conclusion on the ground that,

the chattels being in the custody of the airlines and

the airlines being under no obligation to ship them

before a search warrant could be obtained, there was

no likehood that the chattels would be removed or the

contraband contained therein destroyed. The officers

having had time to obtain a search warrant but having

failed to do so, their search of the chattels was ipso

facto ‘‘unreasonable’’ within the meaning of the

Fourth Amendment. Noting that the intervening

Chambers decision had rejected the same line of reas-

cning in the context of an automobile search, the

McKinnon court declined to adhere to MeGrew, con-

cluding that chattels consigned to a common carrier

are no less movable than vehicles and that they are

iheretore subject to the same exception to the search

warrant requirement.

In his dissenting opinion, Justice Peters argued

that Coolidge foreclosed application of the Carroll-

Chambers rule in the circumstances of McKinnon.

Anticipating the argument, the majority first dis-

tinguished Coolidge, then stated that—four justices

having signed the opinion of the court in Coolidge,

one justice (Ilarlan) having concurred in the judg-

ment but having declined to joi the pertinent part

—=

of the plurality opinion, and the remaining four

justices having expressly disagreed with that portion

of the plurality opinion—‘ It follows that the Carroll-

Chambers issue raised by the plurality opinion in

Coolidge was in fact considered by an equally divided

court, and hence war not actiially decided: under

settled doctrine, the judgment of an equally divided

United States Supreme Court ‘is without force as

precedent.’ ’’ (People v. MeKinnon, supra, 7 Cal.3d

at p. 911.) In People v. Laursen (1972) 8 Cal.3d 192,

relving on Chambers and refusing to follow Coolidge

for the reasons stated in McKinnon, this court upheld

the warrantless search of an automobile abandoned

by robbers and transported to the police impound

garage where it was searched hours later.

The point of this extended discussion is that the

majority’s position is anomalous in the extreme. On

the one hand, they hold that an automobile’s charac-

teristic mobility justifies a warrantless search even

if, as a practical matter, delaying the search to obtain

a warrant would entail no risk because the vehicle is

immobilized and secured by impoundment. On the

other hand, they hold that police must not arrest a

man in his home until a warrant is obtained even if,

as here, the suspect is known to be armed and likely

to flee, having just been visited by his victim and

accused of the crime. An automobile is mobile only

insofar as it is set in motion by a man. Nevertheless,

in the circuristances of Coolidge, the majority would

seize the car and allow the man to escape!

It is hoped that this anomaly does not spring from

mistrust of a policeman’s motives.’ However, the ma-

* To condemn these good officers by associating their conduct with

the tactics of totalitarian regimes—either past or present (see

ante, p.. _*)—is grossly unjust.

* This appendix, pages 34-35.

—_

jority appear to assume that the police chose to arrest

defendant in his home, rather than elsewhere, in order

to search his residence and seize evidence of the crime.

However, the record is to the contrary. This is not a

case in which police, having numerous opportunities

to arrest a suspect at other locations, wait until he

returns home. Defendant just happened to be at home

when the police first received information providing

probable cause to arrest him. Moreover, had defendant

not retreated into the living room in an apparent

attempt to secure the weapon or destroy the contra-

band behind the bar, the arrest would have occurred

at the door, restricting the scope of the incidental

search to the area within defendant’s reach. (Chimel

v. California (1969) 395 U.S. 752.) Finally, it is set-

tled that ‘‘when it appears that the search and not the

arrest was the real object of the officers in entering

upon the premises and that the arrest was a pretext

for or at most an incident of the search, the search is

not reasonable within the meaning of the Constitu-

tion.”’ (People v. Edwards (1969) 71 Cal.2d 1096,

1110; see People v. Haven (1963) 59 Cal.2d 713, 719;

see also Kaplan v. Superior Court (1971) 6 Cal.3d

150, 154.) The rule announced today is unneeded to

curb this or any other abuse.

1 would affirm the judgment.

CLARK, J.

LCONCUR:

McCOMB, J.

|

—_

CERTIFIED FOR PUBLICATION

COPY

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

IN AND FOR THE THIRD

APPELLATE DISTRICT

[Sacramento]

3 Crim. 7673

THE PEOPLE OF THE (Sup. Ct. No. 44054)

STATE OF CALIFORNIA, April 30, 1975

Plaintiff and Respondent, FILED

Court of Appeal—

- Third District

MICHAEL KENNETH RAMEY, WILFRED J. KRAMER,

Defendant and Appellant. Clerk

By , Deputy

An information charged defendant with two nar-

cotics offenses and possession of a sawed-off shotgun.

After partial denial of defendant’s motion to sup-

press, a plea bargain resulted in his plea of guilty to

marijuana possession. He appeals under Penal Code

section 1538.5(m), attacking denial of the suppression

motion.

Marijuana and a loaded revolver were found in de-

fendant’s apartment when the police went there to ar-

rest him without a warrant. The trial court refused to

suppress these items (which were in defendant’s im-

mediate vicinity when he was arrested) but did sup-

press other items found in another room of the apart-

ment,

A security guard named Turner was investigating

the burglary of his home. Several guns had been

taken. Turner gave the police descriptions and serial

—_

numbers of the weapons. At 2 p.m. on a particular

afternoon he telephoned the burglary division of the

Sacramento Police Department and spoke to Officer

Garcia, who had charge of the burglary investigation.

tle told Garcia that he had information that one of

his guns (a .38 revolver) had been sold to defendant;

that he had gone to defendant’s apartment and asked

him about the gun; that defendant admitted possess-

ing the gun and, not knowing it ‘was stolen, had sold

it; that another person in the apartment showed

Turner two handguns, both loaded. While Turner was

in the apartment, defendant’s brother entered. Officer

(jarcia knew the brother as a narcotics dealer. Turner

told Garcia that he had seen a large quantity of mari-

juana in the living room of the apartment and sev-

eral stereo sets as well.’

About three hours after his conversation with

Turner, Garcia went to defendant’s apartment with

four or five detectives and two uniformed officers to

arrest him for receiving stolen goods. He had neither

an arrest nor a search warrant. When defendant

opened the front door in response to Garcia’s knock,

Garcia identified himself and displayed his badge; a

uniformed officer was standing behind him. Garcia

had his pistol drawn. With the door still open, de-

fendant started backing away in the direction of a

portable bar which was located against a wall of the

living room. Garcia and two other officers entered and

followed defendant. As defendant was reaching behind

1 Garcia testified that Turner had told him about the marijuana

and stereo sets. Turner denied having told Garcia of these

items. In this proceeding we view the evidence in the light

most favorable to the trial court’s disposition of the motion to

suppress. (People v. Martin (1973) 9 Cal.3d 687, 692.)

—_

the bar, one of the officers grasped his arm and placed

him under arrest.

Garcia looked behind the portable bar and on a shelf

found a loaded .45 caliber revolver, three cellophane

baggies of marijuana, and a baggie containing ap-

proximately 50 pills which appeared to be benzedrine.

Carela, Who had experience as a narcotics agent, also

~aw marijuana roaches in the ashtrays. Additionally,

iii the hole of a cement block used as a shelf support,

be saw an eyeglass case with a baggie of marijuann

protruding.

Officer Garcia testified that he considered Turner

to be a reliable witness because Turner was a security

officer and ‘‘a security officer holds more or less the

same position as a police officer’; that Garcia previ-

‘usly had secured search warrants based on informa-

tion from security officers; that Turner himself was a

crime vietim was another factor considered by Garcia.

Defendant argues that the uneorroborated informa-

tion from Turner, an untested citizen-informer, was

insufficient to provide probable cause for the arrest.

He relies upon People v. Zimnicki (1972) 29 Cal.

App.3d 577, 582. The present case is unlike Zimnichi,

which involved information from an unidentified

hitchhiker. Here the informant had added credibility

hecause he was a crime victim. A person who is hoth

a victim and a witness to the crime is presumptively

reliable even though his reliability has not previously

heen tested. (People v. Hill (1974) 12 Cal.3d 731,

761.)

Where the trial court has found probable cause for

a warrantless arrest, the appellate court will not set

aside that finding if it is supported by substantial

evidence. (People v. Levy (1971) 16 Cal.App.3d 327,

333.) Contrary to defendant’s contention, there was

—

substantial evidence of probable cause for arrest, Le.,

a reasonable and honest suspicion that defendant had

committed a felony by receiving Turner’s stolen re-

volver.

In his closing brief defendant asserts lack of com-

pliance with Penal Code section 844. Although this is

a new theory which we may disregard, it has no merit.

The police did not indulge in an wnannounced, sur-

reptitious or forcible entry. They knocked on the door,

defendant opened it and the officers identified them-

selves. Having information that there were several

persons and several loaded guns in the apartment,

Garcia acted reasonably by having his own pistol

ready. When defendant started backing away into the

living room, the officers could reasonably envision the

possibility that he was about to secure a weapon and

that a gun duel might ensue. Self-protection justified

the officers in staying in close physical proximity to

defendant and in following him into the apartment

to assure themselves that he did not arm himself. The

officers’ failure to explain the purpose of their visit

was excused by the necessity for preventing a violent

confrontation. (People v. Peterson (1973) 9 Cal.3d

717, 723.) There was substantial compliance with Penal

Code section 844.

Defendant charges that he did not consent to the

officers’ entry into his apartment but submitted to

the entry at gunpoint. Neither consent nor submission

was in issue. Neither the magistrate nor the superior

court made an express or implied finding of consent.

The officers entered the apartment in order to arrest

defendant and in order to prevent him from arming

himself.

In chronological terms, a separate issue precedes

the emergency conditions which justified police entry

—

into the apartment—whether the police acted lawfully

by going to defendant’s home to make a warrantless

felony arrest under non-exigent circumstances. At this

point defendant relies upon the fact that approxi-

inately three hours elapsed between the time of

Turner’s telephone call to the police and the police

expedition to defendant’s apartment.

California decisions supply no firm answer to the

question whether Fourth Amendment principles per-

mit warrantless entry of a private home to make a

felony arrest where the police have had time and

opportunity to procure an arrest warrant. California

statutes sanction the practice. Penal Code section

836, subdivision 3, authorizes police to make a war-

rantless arrest of a person reasonably suspected of

a felony. When they believe the suspect is in a

house, Penal Code section 844 permits them to break

in after complying with the ‘knock and explanation”

requirement.*

A number of California decisions directly or in-

ferentially support the proposition that the police

may make a warrantless arrest at the home of a

person reasonably suspected of a felony, but these

decisions do not inquire whether the poliee had time

aud opportunity to secure an arrest warrant. (F.g.,

People v. Hill, supra, 12 Cal.8d 757; People v. Terry

(1970) 2 Cal.3d 362, 393: People v. Kellett (1969)

1 Cal.App.3d 704, 712-713.) In sustaining an outdoor

arrest of a felony suspect, at least one court has held

* Evidence in the present case illustrates a police belief that the

law dispenses with the necessity for a warrant for a felony

arrest at the suspect’s home. At the suppression hearing Of-

ficer Garcia was asked whether he had made any effort to

secure an arrest warrant. He responded: ‘‘That is not our

practice in burglary. We just go out and arrest the people

when they’re readily available.’

ww 52 —

that the opportunity to procure a warrant preceding

the arrest does not affect the arrest’s validity. (Peo-

ple v. Williams (1971) 17 Cal. App.3d 554, 562.)

On the other hand, there is a basis for the view

that the Fourth Amendment’s demand for the inter-

position of a neutral magistrate between the citizen

and the police is just as stringent for an arrest as

for a search; that a felony arrest and incidental

search at the suspect’s home require an arrest war-

rant except under exigent circumstances. (Coolidge

v. New Hampshire (1971) 403 U.S. 443, 447, 480-

481 [29 L.Ed.2d 564]; note, 23 Stan.L.Rev. 994; ef.

Ker v. California (1963) 374 U.S. 23 [10 L.Fd.2d

726].) In Coolidge v. New Hampshire, supra, 403

U.S. at pages 477-478, the majority opinion states:

“Tt is clear, then, that the notion that the warrantless

entry of a man’s house in order to arrest him on

probable cause is per se legitimate is in fundamental

contliet with the basie principle of Fourth Amend-

ment law that seizures inside a man’s house without

warrant are per se unreasonable in the absence of

some one of a number of well defined ‘exigent cir-

cumstances.” ’

In Warden v. Hayden (1967) 387 U.S. 294 [18

L.ed.2d 782), the court sustained a search of the

premises after the police had entered in hot pursuit

of a fleeing robber. The //ayden case involved an

exigent, wide-ranging search of the premises, not an

arrest and incidental search of the confined area

Within the suspect’s reach. Indeed, the court dis-

claimed any attempt to justify the search as an in-

cident of the arrest. (/d. at p. 299.) Nevertheless,

in Coolidge v. New Hampshire, supra, five members

of the court expressed the view that Warden v. Hay-

ay

den ‘‘certainly stands by negative implication for

the proposition that an arrest warrant is required

in the absence of exigent cireumstances.”” (403 U.S.

at pp. 480-481.)

At this point of his argument defendant relies on

People vy. Privett (1961) 55 Cal.2d 698, where of-

ficers staked out the home of a burglary suspect,

knocked on the front door and, receiving no response,

kicked in the door, arrested the suspect and searched

the premises. In Privett the court invalidated the

entry and search, holding that the officers had ample

Opportunity to secure a warrant; holding that the

facts Jefore the arrest did not tend to connect any

occupant of the house with any reported or known

felony; holding that forcible and warrantless entry

of the defendant’s home violated Fourth Amendment

principles. Although the Prive/t opinion spoke of the

constitutional sanctity of a private home, those ob-

servations were surplus to the decision, for the ar-

rest and search did not even measure up to the de-

mands of Penal Code section 836.

As we view the facts of this case, we need not

enter this relatively obseure corner of search and

scizure law. Here, unlike Privett, the officers had rea-

sonable ground to suspect the occupant of a felony

before they arrived at his home. Approximately three

hours earlier they had been reliably informed that

defendant and at least one other person in the apart-

ment had loaded, possibly stolen, handguns. When

police receive word of the whereabouts of felony

suspects with loaded guns, they need not halt for

the drafting of affidavits and the solicitation of war-

rants before moving into action. They need take no

more time than reasonably necessary to mount an

=

expedition of sufficient size and power to accomplish

their dangerous task effectively and safety. Officer

Garcia testified that after receiving Turner’s phone

call he discussed the problem with his supervisor and

‘subsequently, around shortly after 5:00, we managed

to get enough detectives together to go over to Mr.

Ramey’s residence.’’ Appellate judges should not

second-guess the police or indulge in refined conjec-

tures when loaded guns in the hands of felony sus-

pects threaten the public safety. The circumstances

were sufficiently exigent to excuse what might other-

wise be charged as an invasion of privacy. (See Terry

v. Ohio (1968) 392 U.S. 1, 24-25 [20 L.Ed.2d 889];

Warden v. Hayden, supra, 387 U.S. at p. 298; Sch-

merber v. California (1966) 384 U.S. 757, 770-771

[16 L.Fed.2d 908]; ef. Vale v. Louisiana (1970) 399

U.S. 30, 35 [26 L.Ed.2d 4097].)

Incidental to defendant’s arrest, the officers could

lawfully search an area within their immediate con-

trol, i.e, the area in which he might have ready

access to weapons or evidence. (Chimel v. California

(1969) 395 U.S. 752 [23 L.Ed.2d 685]; People v.

Superior Court (Manfredo) (1971) 17 Cal.App.3d

195, 202.) The .45 caliber revolver, the marijuana and

the pills found behind the portable bar, the marijuana

haggie in the eveglass case, could lawfully be seized

either as an Incident to the arrest or under the plain

view doctrine.

Judgment affirmed. (CERTIFIED FOR PUBLI-

CATION.)

FRIEDMAN, Acting P.J.

We concur:

REGAN, J.

JANES, J.

APPENDIX C

—

AMENDMENT IV

Seizures, Searches and Warrants

[SECTION 1.] The right of the people to be se-

cure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and

the persons or things to be seized.

AMENDMENT XIV

Citizenship, Representation, and Payment

of Public Debt

Citizenship

SECTION 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or en-

force any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.

ARTICLE |

DECLARATION OF RIGHTS

[Unreasonable Seizure and Search—Warrant |

Sec. 13. The right of the people te be secure in

their persons, houses, papers, end effects against un-

reasonable seizures and searches may not be violated;

and a warrant may not issue except on probable cause,

supported by oath or affirmation, particularly describ-

ing the place to be searched and the persons and things

to be seized. [ New section adopted November 5, 1974. ]