Petition for a Writ of Certiorari — Parra v. California

MARTHA GOLDIN

6430 Sunset Blva.

Suite 521

Hollywood, Cal. 90028

{213] 461-3464

Attorneys for

Petitioner

DAE ELIE AEA ION AEA AED ALOE IEE TE

IN THE |

SUPREME COURT OF THE UNITED STATES

October Term, 1973

NO.

NICHOLAS JOSEPH PARRA,

Petitioner,

Ve

PEOPLE OF THE STATE OF

CALIFORNIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

ALAN SALTZMAN and

MARTHA GOLDIN

6430 Sunset Blvd.

Suite 521

Hollywood, Cal. 90028

[213] 461-3464

Attorneys for

Petitioner

‘ TOPICAL INDEX -

oe pees

' Page -

Table of Authorities » ii

OPINION BELOW } 2

JURISDICTION 2

QUESTIONS PRESENTED <a

CONSTITUTIONAL AND STATUTORY ,

PROVISIONS INVOLVED © 4

STATEMENT OF THE CASE 4

REASONS FOR GRANTING THE

WRIT ; 11

CONCLUSION "24

APPENDIX A

OPINION OF THE COURT OF

APPEAL

APPENDIX B

ORDER DENYING HEARING

AFTER JUDGMENT BY

COURT OF APPEAL

APPENDIX C

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Agnello v. United States,

269 U.S. 20, —

46 S.Ct. 4 (1925)

Camara v. Municipal Court,

387 U.S. 523,

87 S.Ct. 1727 (1967) ll, 12

Chambers v. Maroney,

399 U.S. 42,

90 S.Ct. 1975 (1970)

Chapman v. United States,

365 U.S. 610,

81 S.Ct. 776 (1961)

Chimel v. California,

395 U.S. 752,

89 S.Ct. 2034 (1969) ll, 12, 13

Compagnie Francaise de Navigation

a Vapeur v. Louisiana State Board

of Health,

186 U.S. 380,

22 S.Ct. 811 (1902)

Coolidge v. New Hampshire,

403 U.S. 443,

91 S.Ct. 2022 (1971) 12, 14

Jacobson v. Commonwealth of

Massachusetts,

197 U.S. ll,

25 S.Ct. 358 (1905)

ii.

13

» as

13

17

, 23

16

, 20

16

— ll ea eu i ee a ec

NE Mo NLT CIN Tis me At” A ANI

Johnson v. United States,

333 U.S. 10,

68 S.Ct. 367 (1948) 17

Katz v. United States,

389 U.S. 347,

88 S.Ct. 507 (1967) 20

Mapp v. Ohio,

367 U.S. 643,

81 S.Ct. 1684 (1961) 12

North American Cold Storage Co,

v. City of Chicago,

211 U.S. 306,

29 S.Ct. 101 (1908) 16

Preston v. United States,

376 U.S. 364,

84 S.Ct. 881 (1964) 14

Schmerber v. California,

384 U.S. 757,

86 S.Ct. 1826 (1966) 17

See v. City of Seattle,

387 U.S. 541,

87 S.Ct. 1737 (1967) 12, 15

Sibron v. New York,

392 U.S. 40,

88 S.Ct. 1889 (1968) 18

Terry v. Ohio,

392 U.S. l, |

88 S.Ct. 1868 (1968) 18, 21, 22

iii,

i 2 a Oe As ee | ee ed

- Cases.

342 U.S. 48,

72 S.Ct. 93 (1951)

Vale v. Louisiana,

399 U.S. 30;

90 S.Ct. 1969 (1970)

Warden v. Hayden,

387 U.S. 294,

87 S.Ct. 1642 (1967)

Wolf v. Colorado,

338 U.S. 25,

69 S.Ct. 1359 (1949) —

United States v. Jeffers,

13, 17, 20

17

11

CONSTITUTION

United States Constitution

Fourth Amendment

Fourteenth Amendment

9, 40 Ve Me 22

12, 13, 14, 15

20, 21, 22, 23

3, 4, 7

ll, 15

STATUTES

California Penal Code

§995

§1538.5

§1538.5 (m)

Health and Safety Code

§11500.5

iv.

SEROVAR § 14

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ite) fee] ©

WT PE IY on pet

A Pr we win

IN THE

SUPREME COURT OF THE: UNITED STATES

October Term, 1973

NO,

NICHOLAS JOSEPH PARRA,

Petitioner,

Vv.

STATE OF CALIFORNIA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

Petitioner, NICHOLAS JOSEPH PARRA,

prays that a Writ of Certiorari issue

to review the judgment and opinion of

the Court of Appeal of the State of

California, Fourth Appellate District,

ney ree eee

TU) OTT ein " . - 7

“Or eRe yee er mete vate ERLE OW Ro tr NepTng TOR etna cali

died us PRP ORL GR RA peste TT ARLEN VOCL ITER WIE So oe

Second Division, entered in this pro-

ceeding on February 21, 1973.

’ OPINION BELOW

The opinion of the court below is

reported at 30 Cal.App.3d 729, 106 Cal.

Rptr. 531. A copy of the opinion is

attached hereto as Appendix "A".

' JURISDICTION

The judgment of the Court of Appeal

of the State of California, Fourth Appel-

late District, Second Division, (Appendix

"A") was filed and entered February 21,

1973. A timely Petition for Hearing in

the Supreme Court of the State of Cali-

fornia was denied on May 9, 1973, without

opinion. A copy of the order denying

hearing is attached hereto as Appendix

"B". The Court of Appeal, therefore,

became the highest court in the State

of California in which a decision could

2.

SES ND Pe AOA EN NT BN AEE HO Pe TR Nn -

Pers, a i a eta a ida coi naar ath

EPL ER SATE II a Tey te ee fe. .

: FE CT Oe a eee aoe Mee ORY

oe gee

We dR Bee

be had.

QUESTIONS PRESENTED

‘ Whether a warrantless entry

made into a private shop not open for

business, solely in order to search for

the name and address' of the Shopkeeper

is unreasonable and prohibited by the

Fourth and Fourteenth Amendments guaran-

tees of right to privacy and freedom

from unreasonable searches and seizures,

2. Whether the Fourth and Four-

teenth Amendments to the Constitution

require suppression of evidence seizeq

ina warrantless, rummaging and ransack-

ing search of the contents of a desk 7

located inside a private business es-~

tablishment, Which search was conducted

solely to ascertain the name and address

of the shopowner,

3. Whether a warrantless,

rummaging

PIB NEUE, DEIR EPL EI IEF el TE RAS Ee a

and ransacking search of the contents of

Snetinenehetemeeemeee

a desk located inside a private business

establishment, which search was conducted

solely to ascertain the name and address

of the shopowner may be justified on

the grounds of "exigent circumstances"

where it is clear that there are avail-

able several reasonable alternatives to

the search.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The pertinent provisions of the

Fourth and Fourteenth Amendments to the

United States Constitution, and the per-

tinent provisions of California Penal

Code §§995 and 1538.5 and Health and

Safety Code §11500.5 are set forth as

Appendix "C" attached hereto.

STATEMENT OF THE CASE

A. At all times relevant herein

eg? BA Sac ’ a

ae Slee a a a arn . .

ow Set a Ey eR Ce om baie

Petitioner conducted a florist business

in a store located in a shopping center

in Colton, California. About 6:00 p.m.

on the evening of September 27, 1971,

the police were called and told that the

store was apparently closed but the

front door was unlocked. An officer

checked and saw that the shop door was

ajar, although the store was dark and

not open for business. The door could

be locked only with a key.

He went in. The store was parti-

_ tioned, the front appearing to be the

portion open to the public, the rear

"appearing to be the private business

area. With the aid of a flashlight,

the officer looked around. There was

no one in the store; it was totally ¢

undisturbed. He thoroughly examined

both the front and rear portions for

the name and address or telephone

SPE RRA I TE Na rm a ate Sere

number of the shopowner, but found

nothing. He went to his car, which

was parked immediately in front of the

store, and by use of his radio, noti-

fied the police station that he could

not find the name of a responsible

party. A second police officer arrived

and the two men went back into the

shop. They turned on the lights and

looked again, but again did not locate

the identity of the owner. The officers

proceeded with their search.

There was a desk in the rear, wits

vate portion of the store. The police

rummaged around the top of the desk,

but found nothing. They then pulled

open the center drawer of the desk and

there found three prophylactics filled

with some substance, and tied shut. |

(It was later determined that the pro-

phylactics contained heroin). The

scanner

FETT et Ee SNS A Ne ION ENP ~

cans

0 TE IG SEI DY

Police continued their search until

Sometime later, when Petitioner arrived.

In response to their inquiry, he iden-

tified himself as the shopor -r, Peti-

tioner was then arrested «:. charged

with Possession of herein for Sale,

B. A preliminary hearing was con-

ducted in the Municipal Court at which

Petitioner Sought to Suppress the evi-

dence because it had been illegally

Seized in violation of his right of

Privacy and his right to be free from

unreasonable searches and seizures, all

guaranteed by the Fourth and Fourteenth

Amendments to the Constitution, in the

aforementioned warrantless search of

his shop. His motion was denied and

Petitioner was held to answer,

An information charging Petitioner

with possession for sale of heroin in

ae i

q

violation of California Health and Safety

Code §11500.5 was filed in the Superior

Court. Petitioner made a motion pursuant

to California Penal Code §995 to dismiss

the information on the grounds that it

was not founded on reasonable or probable

cause and that it was based on the afore-

mentioned incompetent evidence seized in

violation of his aforementioned consti-

tutional rights. This motion was denied.

Petitioner then made a motion pursuant

to California Penal Code §1538.5 to

suppress the aforementioned illegally

Obtained evidence on the same grounds of

constitutional infirmity. This motion

was also denied. Petitioner then entered

a plea of guilty to the charge and was

sentenced to state prison for the term

prescribed by law (five to fifteen years).

In accordance with the procedure

authorized by California Penal Code

8.

aR Ce wees!

a

§1538.5(m), Petitioner appealed to the

Court of Appeal from the judgment of

conviction entered on his guilty plea.

His appeal Sought to review, on consti-

tutional grounds, the validity of the

Search and seizure which resulted in the

evidence essential to establish his

guilt. The Court of Appeal, one judge

dissenting, brushed aside his constitu-

tional arguments, holding that the police

entry into Petitioner's florist shop

did not violate his right of privacy

because it was necessary in order to

protect the shop and its contents. The

court further held that the subsequent

Search of the desk conducted after it

was absolutely plain that neither life

nor property had been harmed or disturbed,

was justified because of the "exigent

circumstance" that the identity of the

Owner had to be discovered in order to

TS

=

FPF OES

SE POO DPR Oe ERS,

EAT EN BR HUET ER AIM A 00: hel ET ie WY ere ty ot iM

secure the shop.

The dissenting judge, assuming that

necessity justified entry into the shop,

said of the purported "exigency" that

other alternative means of safeguarding

the premises were available: "The offi-

cers could have wedged the front door

shut, called a locksmith, or paid special

attention to the premises during patrol."

(Appendix "A", p.14). In short, it was

made absolutely clear that the invasion

of Petitioner's rights under the Fourth

Amendment could have been preserved in

a manner entirely consistent with the

duty of the police to protect life and

property.

A timely Petition for Hearing in

the California Supreme Court again

raising the federal constitutional

questions was denied and this Petition

for Writ of Certiorari follows.

" REASONS FOR GRANTING THE WRIT

The court below has decided. federal

questions of substance not heretofore

determined by this Court, and decided

the federal questions in a way not in

accord with applicable decisions of this

Court,

1. The Fourth Amendment stricture

against unreasonable searches and seizures

has as its basic Purpose the safeguarding

of individual privacy and security from

governmental intrusion. Camara v. Muni-<

cipal Court, 387 U.S. 523, 87 S.ct. 17277

(1967). «It expresses a purpose "basic

to a free society" Wolf v. Colorado,

338 U.S. 25, 27, 69 S.Ct. 1359 (1949),

Hence, its guarantees are enforceable

against the states through the due process

Clause of the Fourteenth Amendment,

Chimel v. California, 395 U.S. 752,

| b

SPE env ener a i 8 el al a SME REI tent one aN CAR RRR TONG

ll.

SOREN ON AEN wend —————

89 S.Ct. 2034 (1969); Mapp v. Ohio, 367

U.S. 643, 81 S.Ct. 1684 (1961).

Though .the fundamental purpose of

the Fourth Amendment is clear, the pre-

cise limits of “unreasonable” government

conduct are not always apparent. However,

this Court has recognized that except

within narrowly defined situations, a '

warrantless, uninvited intrusion into an

individual's home or business is unrea-

sonable. See, e.g., See v. City of Seattle,

387 U.S. 541, 87 S.Ct. 1737 (1967); Camara

v. Municipal Court, supra.

The states may not carve exceptions

out of the general rule that a warrant-

less search is unreasonable which are

inconsistent with the fundamental consti-

tutional guarantees. Coolidge v. New

Hampshire, 403 U.S. 443, 91 S.Ct. 2022

(1971); Chimel v. California, supra.

Thus, while a properly limited search of

? LL OORT ODE PRIA IY Me A RO me

- eomeeneaas

a dwelling incident to'a lawful arrest

may be constitutional ‘(Chimel v. cali-

fornia, supra), it is well settled that

a@ warrantless search not incident to a

lawful arrest, though base’ upon probable

cause, violates the Fourth Amendment:

"Belief, however well founded,

that an article sought is concealed

in a dwelling house furnishes no

justification for a search of that

place without a warrant." Agnello

Vv. United States, 269 U.S. 20, 33,

46 S.Ct. 4, 6 (1925),

See also Vale v. Louisiana, 399 U.S. 30,

90 S.Ct. 1969 (1970), And, while a

warrantless search of an automobile may,

under some circumstances, be valid

(Chambers v. Maroney, 399 U.S. 42, 90

S.Ct. 1975 [1970]), it is repugnant to

the Constitution where it is reasonable

for the police to obtain a warrant,

Coolidge v. New Hampshire, supra; Preston

V. United States, 376 U.S, 364, 84 S.Ct,

881 (1964).

In light of the foregoing fundamental

principles sharply limiting the class of

cases in which a warrantless search may

be deemed reasonable within the meaning

of the Fourth Amendment, was it permissible

for the police to enter and search Peti-

tioner's store with neither consent nor

a warrant, merely to satisfy their curio-

sity about the condition of the premises

and ownership of the store? A majority

of the court below, disregarding the con-

stitutionality mandated rule that even

probable cause for a search does not ex-

cuse the need for a warrant, answered the

foregoing question, "Yes." Its decision

conflicts with the decisions of this

Court and permits a hitherto unknown

deprivation of rights of privacy and

decided by this Court,

2. The Fourth Amendment protects

the non-criminal from official warrant-

less intrusion into his privacy as much

as it does the criminal, Camara v. Muni-

cipal Court, Supra. And the Public in-

terest, while it may require Searches,

does not necessarily demand warrantless

Searches. See v. City of Seattle, Supra;

Camara Vv. Municipal Court, Supra. Hence,

in Camara and See, this Court held that

a warrantless, routine inspection to

enforce building, Safety and fire codes

was contrary to Fourth Amendment guarantees,

Pe ee eee ee a ne

— 25 ow

It recognized the necessity for such

inspections, but noted that neither the

laudable motive of protecting life and

property nor the fact that the inspections

were not for purposes of uncovering crime

justified a warrantless search.

At the same time this Court referred

‘to the possibility that an individual's

right to be free from a warrantless search

constitutionally might be compelled to

give way in an emergency. North American

' Cold Storage Co. v. City of Chicago, 211

U.S. 306, 29 S.Ct. 101 (1908) (seizure of

unwholesome food); Jacobson v. Common-

wealth of Massachusetts, 197 U.S. ll, 25

S.Ct. 358 (1905) (compulsory smallpox

vaccination); Compagnie Francaise de

Navigation a Vapeur v. Louisiana State

Board of Health, 186 U.S. 380, 22 S.Ct.

811 (1902) (health quarantine). And, in

PNR Age women fv

other cases this Court has mentioned the

"emergency" doctrine as one Which could

excuse the need to obtain a Search warrant.

See, e.g., Vale Vv. Louisiana, supra;

' Warden Vv. Hayden, 387 U.S. 294, 87 s.Ct,.

1642 (1967) (hot Pursuit); Schmerber vy,

California, 384 U.s. 757, 96 S.Ct. 1826

(1966) (destruction of evidence) ; hap-

man v. United States, 365 U.S. 610, 81

S.Ct. 776 (1961) ; United States Vv. Jeffers,

342 U.S. 48, 72 s. Ct. 93 (1951); Johnson

Vv. United States, 333 U.S. 10, 68 s.ct.

367 (1948).

But apart from the cases in which

Warrantless Searches have been upheld

because a car with its high mobility was

involved, Or because evidence might other- F

wise be dissipated, no decision of this

Court has held that particular exigencies

will justify a warrantless search of a p

business or home noe incident to an arrest,

ae

And no decision appears to have applied

the concept of exigency to a case where

there was no probable cause, or at least

reason to believe that some kind of pro-

tective search was necessary. C£., Terry

vy. Ohio, 392 U.S. 1, 88 S:Ct. 1868 (1968);

Sibron v. New York, 392 U.S. 40, 88 S.Ct.

1889 (1968).

The court below justified the entry

into Petitioner's shop upon the theory

that "An unlocked door to a retail estab-

lishment after business hours [leads] to

the beaten’ conclusion that the cireum-

stance was a threat both to the private

and public interests involved." (Appen-

dix "A", p.7). The search itself was

justified on the basis that the police

could not solve the problem by merely -

locking the door and leaving. This re-

quired a iain ton the identity of the

proprietor who could himself then provide

18,

ee

Se ore

Was this the type of emergency to

which this Court has alluded as authori-«

Zing a Warrantless Search? Isn't an in-

dividual's right of Privacy and security

Stpre; not to halt in midstream a crime

reasonably thought to be taking Place

inside; not €ven to prevent the destruction

Of evidence of @ crime; but merely to look

around and locate the identity of the shop-

Owner? The question is a Substantial and

recurrent one, implicating the balance

between the Police duty to Protect life

and Property and the individual's right

Of privacy ana Security in his own busi-

ness. It has never been decided by this

Court and requires resolution in this

Case,

Pet bien 5 tapll

3. Assuming, arguendo , that the

initial entry of the police into Peti~

tionex's: store, in order to ascertain

whether all was well, was not in vio-

lation of the Fourth Amendment, could the

subsequent general search be justified

because of “exigent circumstances"? The

exigent circumstances doctrine is an ex-

ception to the general rule requiring a

warrant. This Court has never accepted

it where the obtaining of a warrant was

merely inconvenient. See, €.g-, Coolidge

v. New. Hampshire, supra; Vale v. Louisi-

ana, supra. Cf., Katz v. United States,

389 U.S. 347, 88 S.Ct. 507 (1967). This

Court has applied the "emergency" doctrine

exception only where probable cause existed

and the imminent dissipation of evidence

justified the immediate warrantless in-

trusion.

Can the “exigent circumstances"

20.

doctrine survive the mandate of the Fourth

Amendment where there is no probable cause

and where there are reasonable alternatives

available? Terry v. Ohio, Supra, implies

that probable cause may not always be the

appropriate criteria (although it does

demand specific facts to justify govern-

mental interference with individual liberty).

But what of the fact that alternatives are

available? The majority of the court below

considered only the desirability of finding

the shopowner in order to secure the store.

This it held, necessitated and justified

the search. The dissent pointed to thes

reasonable alternatives, any of which would

have dissipated the supposed emergency and

necessity: The police could have wedged

the door shut; they could have called a

locksmith; or they could merely have paid

special attention to the premises during

patrol.

21.

_— ee

Whether exigent circumstances such

as justify a warrantless invasion of

privacy and security can exist where

there are reasonable alternatives is a

substantial, frequent and recurring ques-

tion which this Court should answer in

order to strike the appropriate balance

between the protection of private rights

and the duty of the police to _

the safety of the public.

4. In Terry v. Ohio, supra, this

Court held that a limited intrusion upon

an individual did not violate the dictates

of the Fourth Amendment although there

was no probable cause for arrest, because

there was a reasonable basis for a pro-

tective search. This Court emphasized

that the necessity for even that limited

intrusion must clearly be present and

that the search which something less than

probable cause justified must be extremely

narrow in scope. In Petitioner's case

the police first entered the store and

ascertained that no robbery was in progress

and nothing appeared disturbed. Assuming,

_arguendo, that that "limited" search did

not deprive Petitioner of his rights guaran-

teed by the Fourth Amendment , wasn't the

second investigation of his store and the

search of his closed desk drawer beyond

the scope of any warrantless search based

upon any doctrine of necessity so far

developed by this Court? See, .e.g., Chimel

v. California, supra. Does the necessity

to find the owner of a store in order to

lock it justify a search of the entire

premises, including closed and private

places? This significant question re-

garding the permissible scope of a warrant-

less search conducted for reasons of police

convenience should be answered by this

. oe

Court in this case.

- CONCLUSION

For the foregoing reasons, a writ

of certiorari should issue to review the

judgment and opinion of the Court of

Appeal of the State of California, Fourth

Appellate District, Second Division.

Respectfully submitted,

ALAN SALTZMAN and

MARTHA GOLDIN

By: MARTHA GOLDIN

Attorneys for Petitioner

. - ew ek

- at. BECP OOD AM e en ot y

- sea nian

see “pe

TTI OF AEM EoeTy'p

COURT nr OF “APPERS, Fours GAiOH Ri iL, nS D

rs,

SECOND pIvrsron = a ep

ene FEY 2 21973

i . STATE OF CALIFORNIA 3 JUAN R. MeL iizil, Clerk

| ME PEOPLE oF THE STATE OF CALIFORNIA, i tea Snes Basa Giese

t Plaintife ang Respondent, : 4 Crim. 5530

iv. | ) (Sup. ct..No.cr-25423)

+ NrcHozas JOSEPH PARRA, " ) OPINIoy

F Defendant and Appellant. )

‘ )

APPEAL from a judgment of the

weenie Court of San

Bernardino County,

John P. Knauf, Judge, Affirmed,

| Pred A. Lopez, ar.

and Appellant.

; Evelle y,

and Jesse Arias, Jr, for Defendant

Younger, Attorney General

Chief Assistant Attorney General,

Assistant Attorney General, and Mark 1,

Yvonne H. Behart,.

° ‘Ghee A. Kins,

William Ez. James,

Christiansen and

Deputy Attorneys General; for Plainti¢e °

» Respondent,

i

Judgment of conviction was entered on a Plea of guilty’

Made by Gefendant Nicholas Joseph Parra to the Charge of

Possession of heroin for Sa

le. (Health & Saf, Code, $11500. 5. )

defendant necenetaliy moved the

aa court to Suppress:

eee Se See eee td

s

and, seisure. (Pen, Code, $1539. 5, subd, (a) )

At nightfall on Sunday evening, September 27, 1970,

police officer Michael Robitzer arrived at a shopping center

in Colton in response to a citizen's report that the front:

door of the Alpar Florist Shop was open. Although a sign

on the door announced “Sorry, We Are Closed," Robitzer saw

‘ that the door was ajar. The door was made of glass, with

a metal frame and push bar, and was hinged to swing both in

and out. The lock on the door was of a kind that could be

_ worked only by its key.

' Robitzer checked the door and the front window for the

name of the proprietor but found none. He then stepped inside

the shop and with the aid of his flashlight looked around for

the same information, without success, The city business

license read only “Alpar Florist." A radio check with the

police dispatcher also failed to produce from police records -

any name or telephone number. of the pasty responsible for the

business premises, Robitzer explained the reason for his

investigation as follows: “Well, the fact that the door was

‘left open and the building could be entered, the reason we

have to have responsible person come down is to check to

see if anything is missing, to see if a crime is committed

‘and to secure his building and make sure everything was to

3°

his satisfaction before leaving."

.

rae SE a1 ESRD COLE Toe May! veel oh MORN ON

Robitzer , a@ new man on the force, called the shift

supervisor for assistance and shortly thereafter Sengeant .

Paul Connally appeared, The two reentered the shop. :

Connally explained the purpose for entering the premises

as follows: “Our: purpose would be to attempt to secure the

atore for the owner of the business as best we could, contact

| him and find out if anything, everything was all right, if

anything had been taken, anything disturbed."

The officers passed through a partition to the rear

| portion of the shop. Connally found a light switch and turned

on the lights. A kneehole-type desk was near the light switch.

An examination of the clutter on the top of.the desk yielded

no information as to the proprietor of the shop. Connally said

ey thought that quite possibly there would be a business card

in the desk and so I opened the large drawer in the center of

‘|the desk, the one right under the. top of the desk." Upon

pening the drawer six or eight inches, Connally saw three

ranslucent prophylactic sheaths, one and one-half inch to’

inches in diameter and:three or four inches long, tied

ff at the ends and containing & powdery substance, Connally

new that narcotics are packaged in this way. His knowledge

as derived from a class in vice and narcotics control at

alifornia State College Los pnaehes. departmental schools

onducted by the narcotics division, and “training boards with

recotics paraphernalia and substances on them.” He had .

-3<

" pblle arrests for narcotics offenses and was familiar with

how heroin was packaged for use on the streets.

' Connally untied the end of the prophylactic and saw the

: “brownish powdery grainy substance" inside. He said that

he “had a stronger suspicion at this time that it was, in

fact, a narcotic,” founded upon “previously seen narcotic

heroin substance.” Connally put in a call for the depart~-

ment's narcotics officers who Subsequently arrived and con-

firmed that.the substance was heroin.

Further search of the top desk drawer revealed more

balloons and prophylactics, one of the latter containing

“some type of substance inside.” _ | ,

The other drawers of the desk were opened. There and

in other parts of the room more balloons and some teaspoons |

were found but no narcotics were found.

Defendant appeared at the shop about 10 Pome Robitzer

asked defendant if he was the owner of the shop and when

Gefendant said, "Yes," he was placed under arrest. After

being advised of his rights, defendant was asked whether.

the suspected heroin was his. Defendant admitted it was

his, that it was neseia, that he got it from Mexico, and

that he was dealing in narcotics and had been dealing "since

March," — When defendant was asked how much heroin there was

he said, “Three balloons that are uncut, I cut three to one.*

Defendant said that he paid $2,500 for the heroin, and that

-4-

he received a supply every month or month and a half from | oe

which he made $7,500, P — oie

Defendant consented to a search of his car in the trunk

of which was found a balloon with “some type of substance

inside." | i aera

The brown powder found in the desk and the automobile

was chemically analyzed as 5. 2 ounces of heroin.

The first question ‘ds whether it was lawful for the

officers to enter the shop.

' Phere is nothing in the record to suggest that the

officers entered the retail business establishment for any

| purpose other than to provide for its security. To paraphrase

section 197 of the Restatement of Torts. (24 ed.), one is

privileged to enter and remain on Send - the possession of

another if it reasonably appears to be necessary to prevent

.@erious harm to the land or chattels of the other party,

unless the actor has reason to know that. the one for whose

benefit he enters 4s unwilling that he shall take such action.

" Section 197 is cited by the Supreme Court in People Vs Roberts,

' 47 Cal.2d 374, 377, wherein the court sesognises the privilege ‘

of police officers to enter private premises to preserve life

‘or property: “Necessity often justifies an action which weulé.

otherwise constitute a trespass, as where the act is prompted

by the motive of preserving life or property and reasonably

appears to the actor to be necessary for that purpose.”

<-5-

'

uatien: £4 FRESE EN IB

According to the uncontradicted and credible evidence before ‘

the trial court, the officers entered theAlpar Florigt Shop to

protect the shop and its contents. Their presence in the

shop was privileged. . eae | :

Two recent Supreme Court cases relied on _ defendant,

People v. Smith, 7 Cal.3d 282, and Horack v. Superior Caurt,

3 Cal.3d 720, are inapposite ‘since both involved police in-

trusions into saahey residential premises which were —

in their inception. _ re A “an

Concerning Smith, a police officer responded to a land-

lord's report that the tenant of an upstairs flat had left

unsupervised a eix-year-old girl. The officer talked to the

. Child, and then directed the landlord to unlock the door to

the upstairs flat, ostensibly to ascertain whether the child's

mother had returned home in the interim. The trial court had

found the evidence insufficient e0 establish the existence of

an imminent and substantial threat to life, health or property,

and suppressed the evidence uncovered during the officer's

entry. The Supreme Court could perceive no valid justification

for reweighing the factual basis of this determination and

affirmed the order of the trial ‘court. (7 Cal.3d at’ PP. °286-287.)

As to Horack, police officers were conducting a. noontime ‘

investigation of a report that two “hippie type” individuals -

had been seen entering what was believed to be a vacant resi-

dence. When there was no answer to the knock at the locked

' front door, ‘the officers entered the house, guns drawn,

through an unlocked rear door and proceeded to conduct

a room=by-room and closet-by-closet search, which revealed

a quantity of contraband. The Pespie contended that the

entry and search ‘was authorized by the general duty of the

police to investigate, detect and prevent crime and to °

. protect life and property. The Supreme. Court held, among

' other things, that,on the facts, emergency circumstances giving’

rise to an entrance under compulsion of necessity were simply

not present. (3 Cal.3d at p. 725.)

“The Supreme Court considered that in both Smith and

Horack the belief upon which the officers acted was not the

product at facts known to or observed by them but of “a

‘ fanciful attempt to rationalize” a justification for ine

less entry. (People v. Smith, supra, 7 Cal. 3d at p. 287.)

In this case, unlike Horack, the officers were not engaged

in tracking down criminals or evidence of crime, and unlike

| both Horack and Smith, the officers' reaction in entering’ — /

| the shop was not predicated upon abstractions or speculation ;

| but upon the observed fact of an unlocked door to a retail

‘establishment after business hours, leading to the logical

conclusion that the circumstance was a threat both to the

Private and public interests involved. , oe ;:

The ‘next question is whether it was lawful for the

officers *2. open the desk drawer.

According to the facts, the police were unable to ‘solve

the problem by merely locking the door ‘and departing. The |

. mext move indicated by the ‘circumstances was to communicate

the difficulty to the proprietor who could himself then pro~

_ vide for the secarity of the shop and its contents. This

" move was frustrated by the absence of any identification of

the proprietor displayed in the shop or recorded in the police

department's index. At this point the officers were confronted

with three alternatives: one, they could place a guard in the —

shop, at the expense of police service otherwise available to

the community; or, two, they could leave the unlocked shop _

unguarded and resume patrol; or, three, they could continue

efforts to identify and locate the proprietor. To avoid the

dilemmas implicit in the first two alternatives, the officers —~

elected the third alternative. Having exhausted the first

‘obvious sources of information, they looked for identification sia

of the proprietor in the next logical place, namely, the. top

drawer of the desk. The legal issue is whether this conduct

‘ offerided the Fourth Amendment of the United States Constitu-

tion which commands that the right of the people to be secure

'. dn their perscns, houses, papers and effects, against unreason-

able searches and seizures, shall not be violated.

The protection of the constitution against unreasonable

searches and seizures extends to business premises: there is

no formula for the determination of reasonableness and

each case must be decided on its own facts and circumstances.

(Go-Bart Importing Co. v. United States, 282 U.S. 344° (75°

L.Ed 374, 51 S.Ct. 153].) e iki

In a situation analogous to the within case, the Supreme

Court has recognized that official reaction to exigent cir-

cumstances is equal to the emergency which attracted concern

in the first place. (People v. Lanthier, 5 Cal.3d-751.) Ia

Lanthier, a supervisor of university maintenance and security

received a complaint of a noxious odor emanating from some=

where in a study hall. Using a master key, he opened each

student locker in the hall until, in a locker used by the

Gefendant, he found a briefcase from which the odor was

emanating. The official opened the briefcase and saw, in

transparent plastic wrapping, material which he suspected

might be marijuana, The briefcase was turned over to uni-

versity police who onimenves the sheriff's department. ‘A:

deputy sheriff identified the material as contraband.

At the preliminary examination, the magistrate found

that the official was not looking for contraband or illicit

or stolen property or any evidence of guilt of any crime

or other offense; that the search was not unreasonable; and =

that it did not become unreasonable even when the official

opened the briefcase. The Supreme Court agreed, holding

that the People sustained the burden of showing justification

y ae

: -

for the warrantless search by a showing of facts bringing

the search within shin elewqusicy exception, that is, that

_@ compelling urgency was clearly shown making reasonable a

prompt inspection of the premises. (5 Cal.3d at pp. 755-

' 756.) The court’ also held that once the briefcase was dis-

covered and opened, its contents were in ‘plain sight, and

that an observation from a lawful vantage point of contra=

band in plain sight is not a search in the constitutional

- .gense. ~ J et Md om

Here, as in Lanthier, the search was not undertaken to

seek out evidence of crime. Two distinctions can be made —

between this: case and Lanthier. In Lanthier, the inspection

was conducted for the purpose of abating a nuisance. This

case involved an emergency presented by. the discovery of an

unlocked business premise, a situation. which, if nota

nuisance, nevertheless constituted an invitation to criminality . .

.e-a condition certainly not less hurtful to the community

than the existerice of a bad onei3. In Lanthier, it was a. A

university official who first inadvertently uncovered the |

. cunuqebent in the course of solving the prectical problem —

presented by the exigent event.* In this case it was a police |

officer who stumbled upon the narcotics. But the court in

Lanthier expressly declined to base its decision on this

distinction. Rather, it placed its nenneag squarely on Fourth

Amendment principles. (5 Cal.3d at p. 755.)

-10- .

MR RM AP ADM LG AS EAP PELL ALT LIMP LIEN AME OLE Lt Ra EA LD

Appellant does not argue that discovery of the :

translucent condoms containing a powdery substance and - °

tied off at the ends was other than a “plain sight® of - | ng”

contraband, identical in effect to the discovery in Lanthier

of “Baggies” containing a green leafy substance; nor would.

such an argument be meritorious (cf. People. v. Berutko, 71

Cal.2d 84, 90-91).

Pinally, consistent with the principle that the scope

>£ a search must be strictly limited to the circumstances

vhich rendered its initiation permissible (Terrv v. State

of Ohio, 392 U.S. 1, 19 [20 L.Ed.2d 889, 88 S.Ct, 1868, 1878];

silbert v. California, 368 U.S. 263, 274-275 [18 L.Ed.2d 1178,

1187-1188, 87 S.Ct. 1951, 1957]; People v. Marshall, 69 Cal.24

1, 59-60), it is noted that the items found elsewhere in the

lesk and in the shop subsequent to discovery of the contraband

ire the unlawful product of a general, unprivileged police

earch, However,. appeilant does not raise the point, which can

@ taken as a concession that the evidence of the first-seen

SONTAG, which by itself would have supported a conviction,

as the efficient cause of appellant's guilty plea.

The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

, COURT OF APPEAL, FOURTH DISTRICT

i 7 ae SECOND DIVISION = COURT OF AFPEALENLT OSS,

. ee SS, STATE OF CALIFORNIA . RFI Lif D

ps hee. : FEB 2 11973

0 et duo N ER, MeDOVICLL, Clerk

: ‘MWe PEOPLE OF THE STATE OF CALIFORNIA, ) .: UCR

“Plaintifé and Respondent, § ) - 4 Crim, 5530

ov. ; on esas)

NICHOLAS JOSEPH PARRA, oe

Defendant and Appellant. 45° DISSENTING OPINION.

ier respectfully dissent.

Assuming that necessity justitied entey into the shop

to determine whether a burglary was in progress or had been.

committed (but see Horack v. Superior Court, 3 Cal.3d 720),

once the officers checked the premises out and found no _

unauthorized persons present or evidence of a burglary). —- 7

having been committed, there no longer existed an immediate

threat to life, health or property which justified rummaging

through the owner's desk drawer however laudable the officers’ |

motives may have been.

The "necessity" upon which the majority seek to

justify the search of the desk was no more imminent than

the necessity arising out of the quandary faced by the

ep re re REE —

-4

officers in People vy, Smith, 7 cal. 34° 282, as to what to do :

with the child who had been left alone in her apartment. ;

‘In Smith the court commended the ‘officers for their solicitude |

"for the child's safety and welfare but pointed out that the ‘

issue was "not simply whether the conduct of Officer Brown

might have been ‘reasonable’ under all the circumstances,

but whether the People have shown that his entry into Mrs.

Blim's home falls within one of the ‘few specifically

established and well-delineated exceptions’ to the warrant )

requirement. [Citations.]"" (7 Cal.3d at 286.) The court *

held that the "necessity" or "emergency doctrine"

"must not be permitted to swallow the rule: in the absence

. Of @ showing of true necessity -- that is, an imminent and

substantial threat to life, health, or property ‘e- the

.

-

constitutionally guaranteed right to privacy must prevail.” 5

_ (Emphasis supplied.) (7 Cal.3d at 286.) .. ates

People v. Lanthier, 5 Cal.3d 751, ts clearly

| distinguishable. There the noxious odor emanating ‘ ‘from

te locker constituted @ nuisance; it posed a present and .

iontnent threat to the health, safety and welfare of the

studets, An unlocked business premises, however, without *

more, ches not pose such an imminent threat to life, health

Or property, The majority poses a threat which was > peenihde

but not one which was imminent.

. L junder the wajotity holding, if the police were

unable to find evidence of the proprietor's identity in

the first desk drawer, presumably they could continue to

Look, through the. ‘remaining drawers and perhaps even

rummage through file cabinets or other personal effects

in order to find evidence of such identity. The mere fact -

of an unlocked business premises cannot be used to justisy | wks

such a serious and extensive intrusion into a citizen's ‘i file

Fourth Amendment right of privacy. Other alternative: *. :

means of safeguarding the premises were apparently not -

considered, The officers could have wedged the front -

door shut, called a locksmith, or paid special pene: hs

t6 the premises during patrol. aoe i Na

I would hold the search unlawful under People \ v. 3 va S

Smith, supra, 7 Cal.3d 282, and Horack v. —Suserior Court, og

3 Cal.3d 720, and reverse the judgment, © Mr ee i He vee. s

_ CERTIFIED FOR PUBLICATION. oe _ Bh ee A

oe Se a ee /s/' Tamura od

. y aw 3 PiJde

de . 4 - ° e & Fie

.

_— . at age

CLERK'S OFFICE, SUPREME ‘COUR!

4250 STATE BUILDING

San Francisco, Carzrornra 94102

MAY 9 1973

Dear Sm: I have this day filed Order...._

ae

tas @

“Pee .

. e *G-

MZARING DEMAD _

In re:. Ht. Crdm.__No.__5530_

People

vs.

—_' Parra _

Respectfully,

G. E. BISHEL

Clerk

©7723-677 16-78 8M O8P .

|

EXHIBIT "Bp"

'

APPENDIX C_

CONSTITUTIONAL AND STATUTORY

PROVISIONS..INVOLVED,

1. The provisions of the Pourth

Amendment are:

"The right of the people to be

secure 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."

2. The provisions of the Fourteenth

Amendment, Due Process clause:

"***nor shall any State deprive

any person of life, liberty, or property,

without due process of law; ***"

3. The pertinent provisions of

$995 of the California Penal Code are:

"The indictment or information

must be set aside by the court in which

the defendant is arraigned, upon his

motion, in either of the following cases:

«+eIf it be an information: ...That the

defendant had been committed without

reasonable or probable cause."

4. The pertinent provisions of

§1538.5 of the California Penal Code are:

"(a) A defendant may move for

the return of property or to suppress

as evidence any tangible or intangible

thing obtained as a result of a search

or seizure on * * either of the following

grounds:

"(1) The search or seizure with-

out a warrant was unreasonable * * *

"(i) If the property or evidence

obtained relates to a felony offense

initiated by complaint and the defendant

was held to answer at the preliminary

hearing, or if the property or evidence

relates to a felony offense initiated by

indictment, the defendant shall have the

right to renew or make the motion in the

superior court at a special hearing re-

lating to the validity of the search or

seizure which shall be heard prior to

trial and at least 10 days after notice

to the people unless the people are wil-

ling to waive a portion of this time.

The defendant shall have the right to

litigate the validity of a search or

seizure de novo on the basis of the evi-

dence presented at a special hearing.

After the special hearing is held in the

superior court, any review thereafter

desired by the defendant prior to trial

shall be by means of an extraordinary

writ of mandate or prohibition filed

. Within 38, days. after the denial of his

[hike ot Aik seecinl haaxing.*. ««--

"“(m) The proceedings provided for

in this section, Section 995, Sethton 1238,

and Section 1466 shall constitute the

sole and exclusive remedies prior to con-

viction to test the unreasonableness of

a search or seizure where the person making

the motion for the return of tiie or

the suppression of evidence is. a defendant

in a criminal case and the property or

thing has been offered or will be offered

as evidence against him. A defendant may

seek further review of the validity of a

search or seizure on appeal from a con-

viction in a criminal case notwithstanding

the fact that such judgment of conviction

is predicated upon a plea of guilty. Such

review on appeal may be obtained by the

defendant providing that at some stage

of the proceedings prior to conviction

he has moved for the return of property

or the suppression of evidence."

5. The pertinent provisions of

§11500.5 of the Health and Safety Code

are:

"Except as otherwise provided in

this division every person who possesses

for sale any narcotic other than mari-

juana shall be punished by imprisonment

in the state prison for not less than

five years nor more than 15 years, and

shall not be eligible for release upon

completion of sentence, or on parole, or

on any other basis until he has served

not less than 2 1/2 years in prison."

, _ «

14 Ee ay Pita

: A ; 5 ed ‘ r y

4 ‘ Meer oe bs

p ‘ st ¥

s .

| :

: ‘ .

¢

October Term 1973

NO. 73-256

NICHOLAS JOSEPH PARRA,

Petitioner,

v.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE

OF CALIFORNIA

FOURTH APPELLATE DISTRICT

BRIEF OF RESPONDENT IN OPPOSITION

EVELLE J. YOUNGER,

Attorney General

EDWARD A. HINZ, JR., Chief

Assistant Attorney

General - -

Criminal Division

DORIS H. MAIER,

Assistant Attorney

General - -

Writs Section

A. WELLS PETERSEN,

Deputy Attorney General

YVONNE H. BEHART,

Deputy Attorney General

1350 Front Street, Room 5006

San Diego, California 92101

Telephone: (714) 236-7351

Attorneys for Appellant