People v. Berkeley

[459]

Opinion

DEVINE, J.

*

On April 23, 1977, a search warrant for premises in Newark was issued.

1

Shortly thereafter, five officers under the command of Detective Kasich proceeded to the house. Four were deployed to the front; Officer Lynch climbed over a fence in the rear. He encountered respondent Berkeley, who was on a sundeck clad in shorts sunning himself. Lynch announced his mission and told Berkeley to stay where he was and hold his dog. Berkeley asked to be allowed to open the front door. It was known by Lynch that Berkeley could enter, because he had taken a step or two inside. Lynch told him to stay where he was and let the people in the house answer.

Detective Kasich began to knock at the front door just then. He did not look for a doorbell although it was his belief that all the houses in the area had doorbells. His first knocking consisted of five or six raps. Berkeley moved to answer the door and Lynch told him to stay put and let the roommates answer it. Berkeley responded that they were asleep.

After about 30 seconds the knocking came again and Berkeley and Lynch responded as they had before. Along with this knocking was a yelled announcement that they were the police and had a search warrant. Almost immediately after this knocking, the door was kicked in and five officers entered. The ensuing search was rather dramatic: the officers pointed shotguns at a male occupant, who was in bed and had been asleep, and at a female (respondent Borders) in her bed. Search of the house produced cocaine, hashish, other drugs and a tear gas canister and a billy club. Additional facts appear at places within the discussion.

Upon motion under section 1538.5 of the Penal Code, the evidence was suppressed and the action was dismissed. The People appeal the dismissal of the action as it affects defendants Berkeley and Borders.

Section 1531 of the Penal Code allows an officer to break into a house only when, after notice of his authority and purpose, he is refused