Loverde v. Superior Court

Opinion

WALLIN, Acting P. J.

Petitioners Rita Frances Loverde and Peter Charles Mullikin seek a writ of prohibition preventing the Orange County Superior Court from remanding their matter to municipal court to correct alleged errors in the preliminary examination (Pen. Code, § 995a, subd.

[104]

(b)(1)).

1

They also seek a writ of mandate to compel the Orange County Superior Court to set aside the information (Pen. Code, § 995). We stayed all proceedings to determine the propriety of remanding the matter for the magistrate to articulate her findings on the credibility of a certain witness.

I

Petitioners are charged by information with possession of cocaine (Health & Saf. Code, § 11350) and possession of cocaine for sale (Health & Saf. Code, § 11351). They were arrested after local police and FBI agents entered their home to arrest Mullikin on an unrelated federal arrest warrant. A motion to suppress evidence (Pen. Code, § 1538.5) was heard with the preliminary examination. Petitioners claimed the law enforcement agents violated the knock-notice requirements of Penal Code section 844 in entering the residence to arrest Mullikin. The evident factual dispute is whether the first FBI agent inadvertently stumbled through the doorway simultaneous with his oral identifying announcement or whether he unlawfully forced entry without waiting for a response from the inhabitants. The magistrate expressed concern with the method of entry but ruled the contraband found in the house was admissible under the doctrine of inevitable discovery.

2

Petitioners moved to set aside the information, contending the entry was illegal, and the magistrate erred in concluding the doctrine of inevitable discovery precluded suppression.

At the Penal Code section 995 hearing the district attorney conceded the magistrate erred in justifying the search and seizure under the doctrine of inevitable discovery. Nevertheless, the district attorney argued the magistrate reached the correct result because the evidence supported a finding of substantial compliance with section 844 and any ambiguity in the magistrate’s ruling on the claimed section 844 violation could be clarified by remanding the matter under section 995a, subdivision (b)(1).