Swan v. Superior Court

Opinion

ALARCON, J.

*

Robert Heath Swan petitions for a writ of prohibition or mandate to require the Superior Court of Los Angeles County to vacate its order denying his motion to suppress the evidence obtained as a result of the entry of his premises on April 24,. 1968.

Factual Background

On April 14, 1968, a fire occurred at the petitioner’s residence located at 426 North Mirada, West Covina, California. Battalion Chief Ora M. Short of the West Covina Fire Department testified that when he first observed the residence the flames were “coming through the front door under the eaves of the building, and to the rear; they had gone through the patio cover, and would be extending approximately ten feet above the patio cover.” The upper half of the front door was burned off. On the same date, after the fire was knocked down, the witness entered the residence. He observed heavy fire damage “in the living room, dining room area” and high heat damage in the kitchen, hallway, and front entrance hall, and heavy smoke damage in the hall and the three bedrooms in the north portion of the house. A couch in the living room was completely burned. Fire Captain D. C. Andrus of the City of West Covina testified that he is assigned to the investigation of fires to determine if they were the result of arson. Captain Andrus entered the petitioner’s residence at 9 a.m. on April 14, 1968, to conduct an investigation as to the cause of the fire. Captain Andrus determined that the fire was incendiary in origin and so notified the West Covina Police Department.

On April 24, 1968, Captain Andrus, a West Covina police officer, and Sergeant Carlberg of the Los Angeles County sheriff’s office went to the residence to continue the arson investigation. The residence was entered; the officers did not have a search warrant. Photographs were taken of the

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fire damage inside the residence. It was stipulated at the hearing pursuant to section 1538.5 of the Penal Code that Sergeant Carlberg formed the opinion that the fire was incendiary in nature and was the product of arson based upon his examination of the inside of the premises on April 24, 1968.