Hernandez v. Superior Court

Opinion

This petition has to do with arrest of a parolee and with the ensuing search of his home. An all-points bulletin to law enforcement agencies for the arrest of petitioner Vincent Hernandez, á parolee, was issued because he had violated parole by changing his residence without permission and by failing to submit a monthly report to his parole agent. Four San Francisco police officers (the leader of whom had seen the teletype which gave the fact that Hernandez had been committed for selling narcotics) went to Hernandez’ apartment and rang the door bell. Hernandez opened the door, saw two officers and immediately tried to close the door and to hide behind it. The officers pushed the door open and entered. A balloon was taken from Hernandez’ hand. It was found later that it contained heroin. One officer then entered the kitchen and saw, in plain view, narcotics paraphernalia: syringes, needles, balloons, cotton and a funnel. He testified that he had gone into the room to see if there was anyone there. Another officer went into a room which was a combination living room with bedroom and found that there was, indeed, someone there, the other petitioner, Anita Carlson, who was sitting on the bed. The same officer entered from the hallway a walk-in closet and found a loaded revolver, on top of a bureau.

Vincent Hernandez and Anita Carlson were held to answer on a charge of possession of heroin and Hernandez has been charged with possession of a concealed weapon by an ex-felon. Motions under Penal Code section 1538.5, for suppression of evidence, having been denied, there followed the instant petition for writ of prohibition.

Petitioners’ second point is that the officers violated Penal Code section 844, which applies to arrests of parolees (Pen. Code, § 3061; People v. Rosales, 68 Cal.2d 299 , 303-304 [ 66 Cal.Rptr. 1 , 437 P.2d 489 ]), by entering without stating their authority and their purpose. But the officers did not have opportunity to do so. They were not required to announce anything before the door was opened, because they were not then “breaking” (or entering) the premises. The rapid reaction of Hernandez prevented a solemn declaration when the door was momentarily opened. To have hesitated while he was attempting to bar the police from action might have frustrated the arrest and exposed the officers to danger. The fact that a loaded weapon was but a few feet away, within a closet, was not known to the officers, to be sure, but that fact is illustrative of what may be at hand in arrests at a house.

Petitioners argue—and this, we take it, is their principal point— that there was a search which exceeded the bounds set by Chimel v. California, 395 U.S. 752 [ 23 L.Ed.2d 685 , 89 S.Ct. 2034 ], because it went beyond the area in which Hernandez might have seized a weapon or destructible, evidence.

Respondent proposes two answers to this: the first, that a complete search was permissible because the parole agents had authorized the arrest, and impliedly authorized a complete search. Search by parole officers, whether or not they are accompanied by conventional law enforcement officers, is allowable, probably under circumstances which do not constitute a full showing of probable cause. (In re Martinez, 1 Cal.3d 641 [ 83 Cal. Rptr. 382 , 463 P.2d 734 ].) But it is an exceedingly doubtful proposition that by merely authorizing an arrest, the parole officers actually authorize, or may validly authorize, other peace officers, unaccompanied by parole agents, to make a search of the parolee’s home upon the arrest of a parolee. We do not accept the proposition in this case wherein, as presently appears, it is unnecessary; but we abstain from declaring it invalid, for to do this, too, is unnecessary.

The officers had three alternatives: One was to remove Hernandez upon his arrest, close the door and depart without taking further action of any kind. But while this would have fulfilled their duty in making the arrest, it would have left undetected any person who might be a possessor of narcotics within the apartment, despite the evidence that narcotics probably were there; would have allowed either the destruction of such narcotics as evidence or, on the other hand, their use or sale. A second duty of the police, a very important one, would have been abdicated.

Another alternative would have been for all the officers to .leave, with the intention of returning with a warrant. But to have believed that everything would remain untouched within the house if some person were within, would have been folly.

Another choice would have been for some officers to leave and to procure a search warrant while others remained scrupulously within the hallway where the arrest had been made, so that their vision might not fall upon anything beyond the immediate area of the arrest. Meanwhile, suppose the remaining occupant, Miss Carlson, had gone into the kitchen. Must the officers remain immobile, hoping for quick return of their fellows armed with a warrant? Or, if they could then follow Miss Carlson, thus seeing that which a supposed constitutional modesty had forbidden them to see, on what principle could they do so which did not

Petition for writ of prohibition is denied and the alternative writ is discharged.

Rattigan, J., and Christian, J., concurred.