DAVID MICHAEL HORACK, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest, 3 Cal. 3d 720

Opinion MOSK, J. This is a petition for a writ of mandate after the respondent superior court denied petitioner’s pretrial motion pursuant to Penal Code

section 1538.5 to suppress evidence seized in a search of a residence. Petitioner is charged with the unlawful possession of marijuana. On Saturday, June 28, 1969, Officer Thompson of the Newport Beach Police Department, while on patrol duty in a police vehicle, received a radio message from the dispatcher informing him that a Mrs. Hamplin of 521 Riverside, Newport Beach, had telephoned to report that she had seen two “hippie-type” individuals with sleeping bags enter what she believed to be the vacant residence located next door at 519 Riverside. Officer Thompson proceeded to Mrs.

Hamplin’s address, but his knock on the door there brought no response. It was later established that she had driven away from her home as Officer Thompson approached.

Having been unable to contact the informant, or to ascertain that she was reliable and had in fact telephoned the police station, Officer Thompson next walked to the residence at 519 Riverside and, stationing another officer at the rear, went to the front door, knocked on the door and identified himself by announcing “Police Officer.” Standing in front of the door, he could see into the living room of the house through a window in the door: the room was carpeted, but otherwise contained no furnishings with the exception of a large stereo speaker enclosure and stereo receiver.

The receiver was turned on and he heard music playing “quite loud.” There was no response to the knock or announcement and he heard no sounds from inside except the music. He tried the front door and found it locked. Officer Thompson proceeded to the rear of the house at which time he was joined by Sergeant Petersen. The other officer who had been stationed at the back door then left. The two remaining officers approached the back door and knocked. Again, no sound was heard from the inside. They tried the door and found it unlocked.

Officer Thompson opened the door and, before entering, again announced “Police Officer.” He did not explain the purpose for which admittance was desired. Still receiving no response, both officers entered the house with their guns drawn. The entry was made at approximately 1 p.m. The officers proceeded to conduct a room-by-room and closet-by-closet search for the persons who reportedly had entered the house.

Officer Thompson testified that the reason he sought entry was to “ascertain if there were people in the dwelling that did not have the authority to be inside.” Although he had heard no response to his knocking on the door or his announcements, he entered “Looking for individuals hiding; figured that they probably heard me and were hiding if they were in there.” He also stated that he thought “there might be possibly a burglary being committed inside the residence,” although he candidly conceded on voir dire that he saw absolutely nothing to indicate that a burglary was in progress.

He further admitted that he had never heard of a vagrant going into a house to sleep with his own expensive stereo equipment, the value of which he estimated to be approximately $300, nor had he ever heard of any persons leaving valuable stereo equipment behind when they moved out of a house. Finally, the officer indicated that the appellation “hippie-type” had no special significance to him and that he did not know what Mrs. Hamplin meant when she used it. The rear door of the house opened into a rear bedroom and, finding no one in the room, Officer Thompson checked the closet.

The closet was also empty, and Thompson proceeded to another rear bedroom in search of the intruders. Finding no one, he then looked into the closet of that room. Although this closet, too, was devoid of human occupation, Officer Thompson made an important discovery: on the shelf of the closet, at eye level, he saw a little plastic “Baggie” containing marijuana. He also observed some clothing hanging in the closet. Taking the contraband with him, Officer Thompson next searched a linen closet that was two and one-half to three feet wide and ran from the floor to the ceiling.

It had two sets of double doors, and Officer Thompson was of the opinion that the bottom portion of the closet was big enough for a person to get into if he were crouched down; therefore, he opened the doors to the bottom portion. On the bottom shelf, just above the floor, he saw a cardboard box which contained a smaller shoe box. The shoe box was on top of a stack of papers and, because it was positioned at an angle, he could see its contents. In the shoe box he saw another “Baggie” which was found to contain more marijuana and a bricklike piece of hashish.

Officer Thompson took the cardboard box into one of the rear bedrooms he had already searched and placed it on the floor. At this time, he saw some papers scattered on the floor, including a “bill of sale for the house and offer for sale” which had petitioner’s name on it. He left the bill of sale on the floor and, with Sergeant Petersen, checked the bathroom and a third bedroom and its closet, still seeking the elusive intruders. Having satisfied himself that no one was in the house, Officer Thompson then telephoned the station and requested that Officer Epstein of narcotics detail come to the house.

Upon his arrival, Officer Epstein examined the contraband already discovered, confirmed Thompson’s identification of the substances found, and proceeded to a thorough search of everything in the house not previously searched by Officer Thompson. In clothing hanging in the closet of one of the rear bedrooms, Epstein found a small “Baggie” of hashish and a passport, an international driver’s permit, international vaccination certificate, and Hertz car rental document, all bearing petitioner’s name. In the third bedroom, on the floor, he found a leather pouch containing a pipe and a small piece of hashish.

He also found various documents containing the name of Michael Turkington and, apparently, $12,000 in cash. The cash was turned over to the State Board of Equalization and is not in issue on this petition. In the bedroom farthest to the rear, Officer Epstein found documents in the name of M. R. McCurdy on the floor and a small piece of hashish in a pair of boots. At no time during the various searches or during a brief surveillance period which followed did any one of the suspects appear; nor did the police find any sleeping bags in the house.

Petitioner was subsequently arrested in Laguna Beach, but the details of his arrest are not part of the record presently before us. The sole issue is whether the police entry and subsequent searches, which turned up the marijuana and hashish sought to be suppressed, were in violation of the Fourth Amendment protection against unreasonable searches and seizures. Petitioner made out a prima facie case that the search and seizure were unlawful when he established that they were made without a warrant; the burden then rested on the prosecution to show proper justification. (People v.

Haven (1963) 59 Cal.2d 713, 717 [31 Cal.Rptr. 47, 381 P.2d 927].) With respect to the search conducted by Officer Thompson and the evidence he discovered, the People contend that the entry and search for persons believed to be in hiding were authorized by the general duty of the police to investigate, detect, and prevent crime and to protect life and property. Under the circumstances of this case we cannot agree. The doctrine of necessity relied on by the People is applied in cases such as People v. Roberts (1956) 47 Cal.2d 374 [303 P.2d 721], People v.

Clark (1968) 262 Cal.App.2d 471 [68 Cal.Rptr. 713], and People v. Gonzales (1960) 182 Cal.App.2d 276 [5 Cal.Rptr. 920], involving emergency circumstances which are simply not present in the facts of the instant case. Thus, in People V.

Roberts, we stated that “[Necessity often justifies an action which would 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.” (47 Cal.2d at p. 377.) The “necessity” in Roberts was that police heard a moaning sound as if from a person in distress and entered defendant’s apartment to render aid; the evidence sought to be suppressed was discovered in plain sight after the valid emergency entry.

Similarly, in Clark, police entered the defendant’s apartment because, circumstances apparent to the officers indicated the “probability that a woman within the apartment was the unwilling victim of some criminal act.” (262 Cal.App.2d 471, 476.) And in Gonzales, a police officer discovered marijuana in a search for identification in the clothing of a man found seriously injured with an abdominal stabbing wound. In the case at bench, there was no comparable emergency situation.

The only property to be protected was the bare carpeted house containing a stereo system, and the police officers saw nothing to indicate any immediate threat of damage or destruction. Indeed, Officer Thompson candidly admitted that he saw nothing to indicate that a burglary was in progress or had been committed. And even the most vivid imagination would be unable to contrive imminent danger to human life in the situation apparent to Officer Thompson and Sergeant Petersen prior to their entry. Therefore, no justification for the entry and search may be found in the doctrine of necessity.

An alternative justification for the entry and search might be sought in Penal Code sections 836, subdivision 1, and

Section 836, subdivision 1, authorizes a police officer to make an arrest without a warrant “[w]henever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.”

Section 844 justifies an entry by police officers into a closed residence in order to make an arrest, if they have reasonable grounds for believing the person to be arrested is inside and if they have demanded admittance and explained the purpose for which admittance is sought. Thus, it might be argued that the entry and search were justified to arrest persons whom the officers had probable cause to believe were committing, in their presence, the offense of unlawful occupancy of a dwelling.

Such concept ostensibly would be consistent with Officer Thompson’s testimony as to his purpose in entering the residence: to “ascertain if there were people in the dwelling that did not have the authority to be inside.” The foregoing theory necessitates a showing that Officer Thompson and Sergeant Petersen had reasonable cause to believe that there were within the dwelling persons who had entered without authority. We conclude, however, that the facts and circumstances perceived by the officers prior to their entry could not provide them with the requisite reasonable cause.

Regardless of the status of any persons inside the dwelling, the officers initially must have had reasonable cause to believe that there were, in fact, persons inside at the time of their entry. Officer Thompson knew that, some time before his arrival on the scene, Mrs. Hamplin had reported seeing two persons enter the residence at 519 Riverside. Mrs. Hamplin’s reliability as an informant had not been established, and, indeed, the officers could not ascertain with certainty that it was she who called.

Nevertheless, assuming arguendo that her reliability had been established so that the officers could be certain that persons had entered the house (see People v. Hogan (1969) 71 Cal.2d 888, 890-891 [80 Cal.Rptr. 28, 457 P.2d 868]; People v. Guidry (1968) 262 Cal.App.2d 495, 497-498 [68 Cal.Rptr. 794]), the officers had no way of knowing whether the persons had left the residence prior to their arrival. Indeed, Mrs. Hamplin herself had left the scene between the time of her call and the arrival of the police.

When Officer Thompson approached the house and looked inside, he could see no one, and complete silence greeted his knocking and announcements at both the front and rear doors. The only indications that there might be someone inside the residence were that the radio was turned on and the back door, though closed, was unlocked.

However, neither of these circumstances justifies a reasonable inference that persons are present; when an occupant leaves a house temporarily, it is not unusual for him to fail to turn off a radio, but it would be most unusual for an unauthorized intruder to call attention to his presence with a musical accompaniment. Indeed, many law enforcement agencies publicly suggest leaving lights and radio on when homeowners are absent, as a deterrent to potential burglars.

But even assuming further that there was reasonable cause to believe persons were in the house, the officers still had no basis for entry to search for the persons, unless they had reasonable cause to believe that the persons were committing a public offense in their presence—in this case, that could only be occupancy of a dwelling without authority. Only the wandering fancy of the police officer, and not a reasonable

interpretation of the circumstances here, could explain such belief. The only evidence to indicate that persons who might be inside the residence must be occupying it without authority came from Mrs. Hamplin’s purported report relayed secondhand to Officer Thompson from the station dispatcher. We can assume Mrs. Hamplin believed the “hippie-type” intruders were strangers and the house was vacant. But her view was not corroborated by any officer’s observations on the scene. Officer Thompson was unable to talk with Mrs.

Hamplin to determine the basis for her opinion, if any, but despite lack of further information, he approached the residence and looked inside. He saw a carpeted living room with no furnishings except an expensive stereo receiver and speaker. On voir dire, he candidly admitted that he had never heard of anyone moving out of a house and leaving valuable stereo equipment behind; nor had he ever heard of a vagrant entering a vacant house to sleep and carrying his own stereo.

Therefore, if Officer Thompson reasonably assessed the appearance of the front room, he would have concluded that the house was probably not vacant—that either a new owner was in the process of moving in or an existing owner was in residence but had temporarily moved the furniture from the only room visible to exterior inspection. According Officer Thompson the benefit of every doubt, after having looked into the front room, he could have maintained, at most, a transitory suspicion that unauthorized persons might be inside.

Nevertheless, as he testified, he made no attempt to ascertain the actual ownership of the residence, nor to ascertain whether the utilities or telephone had been turned on. He apparently relied exclusively on the unverified belief purporting to be that of Mrs. Hamplin that the house was vacant, even though the presence of an operating stereo system could not easily be reconciled with that theory. After looking inside, Officer Thompson proceeded to knock at both the front and rear doors and to identify himself as a police officer. He heard no response, in fact no sound of any kind except the music from the radio.

Incredibly, this silence reinforced his belief that there were persons inside without authority: because there was no response, he believed the persons were intentionally failing to open the door; because they were consciously refusing to open the door, he believed they had something to hide, namely, that they were occupying the house without authority. Therefore, Officer Thompson concluded he should enter the residence and search every room and closet in which someone might be hiding.

In our view, the silence which greeted Officer Thompson’s knocks on the door and announcements of identity added nothing to his unsupported suspicion that persons were inside the residence without authority. A more reasonable conclusion would have been that no one was inside the house. But if the officer believed persons were inside, he had no basis for assuming that they heard his knocking and announcements and were deliberately refusing to respond, particularly because of the high volume of the radio.

Furthermore, even if the officer could reasonably believe and did actually believe that any persons inside would have heard him, their silence was not indication of their guilt of any offense. As we stated in Tompkins v. Superior Court (1963) 59 Cal.2d 65, 68 [27 Cal.Rptr. 889, 378 P.2d 113], “[flhere are many reasons other than guilt of a felony why an occupant of an apartment may not wish himself or others present exposed to the immediate view of a stranger, even if the stranger is a police officer.

If refusal of permission to enter could convert mere suspicion of crime into probable cause to arrest the occupant and search his home, such suspicion alone would become the test of the right to enter, and the right to be free from unreasonable police intrusions would be vitiated by its mere assertion.” Furthermore, the “right to seek interviews with suspects or witnesses at their homes does not include the right to walk in uninvited merely because there is no response to a knock or a ring.” (People v. Haven (1963) supra, 59 Cal.2d 713, 717; see also People V.

Shelton (1964) 60 Cal.2d 740, 746-747 [36 Cal.Rptr. 433, 388 P.2d 665].) Therefore, if Officer Thompson lacked probable cause to arrest the occupants at the time he knocked on the doors and announced his presence, he lacked probable cause at the time he entered the house as well because the silence of the occupants provided no evidence of guilt. It is noteworthy that in both Tompkins and Haven, the officers had reason to be certain that the persons failing to respond were inside the dwellings, and yet we held that the officers were not justified in presuming guilt.

In the instant case, Officer Thompson could not ascertain that there was anyone inside, but he nevertheless permitted the silence to convince him the mythical intruders were hiding. For the foregoing reasons, we conclude that the entry and search conducted by Officer Thompson and Sergeant Petersen constituted an unreasonable search and seizure in violation of the Fourth Amendment.

The officers lacked a justifiable basis for entering the residence without a warrant, and their subsequent search of the rooms and closets and seizure of marijuana and hashish violated the petitioner’s constitutional right to be free from unreasonable intrusions into his private domain. Therefore, the petitioner was entitled to suppress the seized contraband pursuant to his motion under

section 1538.5. No authority exists permitting the police to enter into private premises without probable cause in a search for nonexistent trespassers, and the fruits of such improper conduct cannot be received in evidence. Finally we come to the search of the premises by Officer Epstein, after he responded to Officer Thompson’s call. Officer Epstein was called in because he was assigned to the narcotics detail, and his thorough search was obviously aimed at uncovering further narcotics.

There was no conceivable legal basis for his warrantless search and at oral argument counsel for the People conceded his conduct was unlawful. Indeed, even if the initial invasion were sustained as a search for persons believed to be violating Penal Code

section 602.5, the subsequent search for contraband would nevertheless have been unconstitutional. By the time Thompson called Epstein, it was obvious there were no persons hiding in the house. Officer Epstein’s general search for evidence far exceeded the scope of any activity that would have been permitted even if Thompson’s entry had been legal. Let a writ of mandate issue directing the superior court in case No. C-21818 to suppress all the evidence seized in the unlawful searches conducted by Officers Thompson and Epstein. Peters, J., Tobriner, J., and Sullivan, J., concurred. Penal Code

section 602.5 makes it a misdemeanor for any person to enter or remain in any noncommercial dwelling house or apartment without the consent of the owner. Our disposition of the instant action makes it unnecessary for us to consider petitioner’s additional allegation that the search by Officer Thompson was illegal because he failed to explain the purpose for which he desired admittance, as required by Penal Code

section 844.