# Petition — California v. Ramey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0128%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 929 ## Text 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. ] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0128%3A1. Public record. Not legal advice.