MacHado v. Superior Court

Opinion

FRANSON, J.

Petition for writ of mandate to review respondent’s denial of a motion to suppress evidence prior to trial. Writ granted.

The fundamental question is whether, absent exigent circumstances, the failure of police officers to comply with the notice requirements of Penal Code section 1531 in securing a house until a search warrant is obtained, renders illegal the subsequent seizure of contraband in the house pursuant to the warrant. We hold that it does.

Statement of the Case

An information was filed in the respondent court charging petitioner with a violation of Health and Safety Code section 11359, possession of marijuana for sale. A Penal Code section 1538.5 motion to suppress

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evidence was denied by respondent. A timely petition for review of respondent’s ruling was filed with this court and we issued an order to show cause.

Statement of Facts

On May 22, 1974, just before 2 p.m., Detective Matt of the Stanislaus County sheriff’s office was in the vicinity of petitioner’s residence at'614 Coldwell. The residence was under surveillance because it was suspected that a delivery of contraband might be made there. In particular, Detective Matt was looking for Richard Potter. Potter and another man arrived at 614 Coldwell. When they left, Detectives Matt and Holloway followed them to Potter’s residence at 417 Bodem where they stopped Potter and apparently found marijuana on his person.

Detective Matt radioed Deputies Benjamin and Richards and instructed them to secure the 614 Coldwell premises until a search warrant could be obtained.

At 2 p.m., Deputy Richards and Officer Sanders of the Modesto Police Department went to the front door of 614 Coldwell and Deputy Benjamin went to the back door. Richards knocked three or four times for approximately 45 seconds on the front door, and then he went around to the back door. Officer Sanders remained at the front door, but he did not knock again or otherwise announce his purpose for being there.