Garcia v. Superior Court

California Court of Appeal Jan 15, 1973 No. Civ. 31784Published

Before: Molinari

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Holding. The court held that the officers' entry into the apartment was illegal because they failed to comply with the knock-notice requirements of Penal Code section 1531, rendering the subsequent search and seizure unreasonable.

Issues

Did the police officers comply with Penal Code section 1531 when entering the apartment and bedroom?
Did the officers' failure to announce their authority and purpose before entering render the search and seizure unreasonable?

Disposition. granted

Quotations verified verbatim against the opinion

“The entry into the apartment was illegal and therefore the subsequent seizure of evidence was illegal.”

“The officers rushed into the apartment without announcing their identity or authority.”

“In the instant case the officers did not identify themselves until after they entered the apartment.”

Opinion

MOLINARI, P. J.

In this proceeding we issued an alternative writ of mandate to review the denial of a motion to suppress evidence made pursuant to Penal Code section 1538.5.

Based upon an affidavit executed by Inspector Hilliard of the Alameda County District Attorney’s office, a search warrant was issued on April

[979]

12, 1972, for the premises known as 1739 89th Avenue, apartment 4, Oakland. The legal sufficiency of this affidavit is not an issue in this proceeding.

On the evening of April 12, 1972, Officer Romero of the Oakland Police Department, accompanied by Sergeant Goldberg, Officers Neuman, Tyson, Balousek and Sergeant Rothacker, set out to execute the warrant. None of the officers were in uniform. Romero, Neuman, Tyson, and Goldberg proceeded to apartment 4 and stationed themselves on the landing in front of the door to the apartment. Neuman rang the doorbell and a young girl asked “Who is it?” Goldberg then answered, “Marvin, it’s Marvin.” (Goldberg’s given name is Marvin.) The door was then opened 6 to 10 inches. The officers could not see who was opening the door. Goldberg then pushed the door open, showed his badge to the girl and stated that he had a search warrant. He did not ask the girl her name or if she lived in the premises. The police officers then rushed into the apartment.

Officer Romero went into the kitchen and Goldberg went down the hall to the bedrooms. In the kitchen Romero found the mother of petitioner Garcia. Romero explained to her that he was a police officer and that he had authority to search the apartment.

Petitioner Garcia opened a bedroom door just as Goldberg began to enter. Goldberg could see petitioners Garlock and Allen sitting on the bed inside. Goldberg showed his badge, and said, “Police officer. We have a search warrant.” Officers Neuman and Tyson followed Goldberg into the bedroom. Shortly thereafter Romero also entered the bedroom. At the foot of the bed Romero found some narcotics and on top of a nightstand he found a pistol containing five rounds of ammunition.

The three petitioners were then placed under arrest and given the warnings prescribed by

Garcia v. Superior Court

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MOLINARI, P. J.

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