Kinsey v. Superior Court

RATTIGAN, J. Pursuant to subdivision (i) of Penal Code section 1538.5, petitioner seeks review of the validity of a seizure whereby a certain quantity of heroin was obtained by the police. The heroin, which was admitted-in evidence at petitioner’s preliminary examination upon a charge-of its possession (Health & Saf. Code, § 11500), was seized when a police officer forcibly entered petitioner’s hotel room, Petitioner challenges the seizure—and unsuccessfully moved below to suppress the evidence—upon the ground that the officer, although in possession of a warrant which .authorized a search of the room, did not comply- with the .notice requirements of Penal Code section 1531.1

[190]We issued the alternative writ in order to examine petitioner’s contentions in the light of the Supreme Court’s recent decision in People v. Gastelo (1967) 67 Cal.2d 586 [63 Cal.Rptr. 10, 432 P.2d 706]. Having done so, we conclude that the circumstances hereinafter discussed were such as to excuse the officer from complying with section 1531 • that the ensuing entry and seizure were therefore reasonable; and that the petition must be denied.

The search warrant was issued by a municipal court on October 5, upon an affidavit executed on the same date by Sergeant Hilliard of the Oakland Police Department. The affidavit recited Hilliard's position and experience, plus facts which established the reliability of a confidential informant described as “X.” According to the affidavit, “X” informed Hilliard on October 2 that he had just been present in petitioner’s hotel room on that day; that he had observed eight $20 balloons of heroin there; and that petitioner had told “X” that he could purchase such balloons at any time by contacting petitioner at the room. The affidavit also identified the hotel room as petitioner’s and its location as room 306 at 2908 San Pablo Ave. The warrant which thereupon issued authorized a search of petitioner’s person and the room.

At a daylight hour (“10, 10:30”) on the morning of October 5, Sergeant Hilliard and several other police officers went to the San Pablo Avenue address (a hotel) to serve the warrant. Officer Romero and some of the other officers went to the corridor outside room 306. Romero, the just-issued search warrant in his possession, “listened” at the closed door for about three minutes. He could hear.“a male and a female talking” in the room. Then a hotel maid came along in the corridor where Romero was standing, knocked on the door, and opened it with a key. Officer Romero had given the maid no instructions; there was no conversation between them. No one connected with the hotel had been instructed to open the door, and the maid’s action was upon her own initiative.