People v. Block

¶1I dissent.

¶2The majority’s conclusion that there was probable cause to believe that there were other suspects on the second floor of the house is in conflict with the principles of Chimel v. California, 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034].

¶3I agree with the majority in their statement of the basic general rules applicable to the instant facts but find that the majority have incorrectly applied them to these facts. To apply these rules as the majority have done would make them mere empty words, and I can imagine no case where the officers who have made an arrest in one room of a house would be prohibited from searching the rest of the house for other possible suspects.

¶4*247The scope of an allowable search of- an arrestee’s home was determined in Chimel v. California, supra,395 U.S. 752. The court held that the police can search the arrestee’s person and area “within his control,” i.e., the area from which he might gain possession of a weapon or destructible evidence. The court recognized that, “there is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.” (Chimel v. California, supra, 395 U.S. at p. 763 [23 L.Ed.2d at p. 694].) (Italics added.)

¶5I agree with the majority that where officers arrest suspects in one part of the house, there must be “specific, articulable” facts supporting a reasonable belief that others are present before the officers may undertake a search of other rooms in the house for additional suspects. The crucial inquiry is whether there were sufficient “specific, articulable” facts giving the officers probable cause to believe that there were other suspects in the upstairs of the house.

¶6The majority state that “the reasonableness of an officer’s conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. . . . [D]ue weight must be given not to his unparticularized suspicions or ‘hunches,’ but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific facts from which he concluded that his action was necessary.” (Italics added.) In reasoning that more than good faith is necessary to search for additional suspects, the majority recognize that an objective standard must be used in judging the facts. Thus it follows that hunches and mere suspicions are not part of the objective test. “And simple ‘ “good faith on the part of the arresting officer is not enough.” . . ” (Terry v. Ohio, 392 U.S. 1, 21-22 [20 L.Ed.2d 889, 905-906, 88 S.Ct. 1868]; see People v. Collins, 1 Cal. 3d 658, 663 [83 Cal.Rptr. 179, 463 P.2d 403].)

¶7Neither officer was able to point to any specific facts justifying his suspicion that other narcotics suspects might be present. There were six people downstairs in close proximity to a smoking “roach.” The rooms upstairs were dark and quiet. The officer did not claim that he searched the upstairs bedrooms because he feared for his own safety; in fact, he specifically testified that his weapon was not drawn. Neither officer testified that he heard any noise upstairs, or that there were any lights coming from any of the upstairs rooms. In fact, the bedroom where the marijuana was found was darkened. Neither officer testified that there were any hurried movements by the six people when they entered the house which might have given rise *248to the suspicion that someone had just left. Nor did the officers receive any information prior to arriving at the premises that anyone other than defendant Block would be in the house. Block was found in the living room prior to the search.

¶8The sole basis suggested by the majority for the asserted reasonable belief that suspects might be upstairs was that the officers had found a “pot party” in progress downstairs. The superior court judge’s rhetorical question succinctly answers the majority’s point: “How could you possibly say that an officer has a right to wander around a house, looking for people, just because there are two people, or four people, smoking a roach?” The absence of any specific facts indicating the presence of additional suspects reduces Officer Galloway’s suspicion to a mere hunch, insufficient to warrant a search under the foregoing authorities. To infer that because six people were found in the house others might be present is just as illogical as to infer that because only one person was found in the living room others should be around the house somewhere. As Justice Mosk stated in Horack v. Superior Court (3 Cal.3d 720, 727 [91 Cal.Rptr. 569, 478 P.2d 1]), “Only the wandering fancy of the police officer, and not a reasonable interpretation of the circumstances here, could explain such belief.”1

¶9I conclude that the mere fact that the officers found a “pot party” downstairs does not, without additional facts, furnish probable cause to believe that further participants were upstairs. The reasoning of the majority in reaching a contrary result means that a search for additional “possible suspects” could be undertaken in every case where more than one suspect who may be engaged in criminal conduct is arrested. The rule announced today allows the police to search throughout a house for other suspects pursuant to an arrest of two or more in a variety of situations involving a myriad of crimes where an officer could surmise that there may be more than one person involved in the crime. To permit such searches would totally emasculate Ch-imel and allow the police to search any areas except places like desk drawers which are so small that even a midget could not hide in one.

¶10There is, of course, always the possibility that some additional unknown person may be found in a large or multi-story building. But the mere possibility of additional persons in other parts of the house, without more, is not enough to provide probable cause to search the entire premises for addi*249tional persons once all of the suspects have been arrested. It bears emphasizing that in Chimelthe court stated there is no justification “for routinely searching any room other than that in which an arrest occurs . . . .” (Chimel v. California, supra,395 U.S. at p. 763.)

¶11By holding that the mere possibility that there might be an additional unknown person in the house warrants a search of the entire premises the majority have rendered the above rule meaningless.

¶12In sum, the only person the officers were seeking when they came to the premises they found downstairs. Before arriving on the premises they had no reason to suspect that any additional suspects would be there. After arriving they had no reasonable cause to believe that anyone was on the premises other than those found downstairs. To uphold the search of the upstairs in the instant case leaves the Chimelrule as mere empty words.

¶13The majority purport to rely on Guevara v. Superior Court, 7 Cal.App.3d 531 [86 Cal.Rptr. 657]. Guevara, however, is a case where the arresting officers had information warranting a reasonable belief that a confederate of the person arrested was in the house, and the case furnishes no support for today’s decision.

¶14In Guevara, police officers were told by an informant that the defendant was engaged in large-scale dealings in heroin. They arranged with the informant to purchase an ounce of heroin from the defendant. After that transaction, the defendant departed for his home. The informant returned to the police officers, gave them a condom of heroin that he claimed he had received from the defendant, and informed them that the defendant had gone home to await the arrival of some potential buyers from San Francisco. The informant also had told the officers that the defendant was living with a woman, that other persons frequented the apartment, and that the buyer from San Francisco was expected momentarily, in fact, that the defendant had gone home to meet the buyer. The officers then proceeded to the defendant’s home and, after seeking and being granted admission, arrested him in the living room of the house. The officer walked through an open entry way, adjacent to the living room, into the kitchen, looking for confederates of the defendant. In the kitchen, the officer saw heroin in plain view. This evidence was held admissible as the officers had factual information that others such as the woman, or buyers might be present.

¶15Guervara stands for the proposition that when officers are informed that there are confederates of an arrestee, who are probably on the premises, they may walk into the room adjacent to where the arrestee is arrested and look for these confederates and any contraband found in plain view is admissible. However, unlike the instant case, the officers in Guevarawere *250able to point to specific and articulable facts from which they concluded that other suspects might be present in the house. The case at bar does not present such a fact pattern.

¶16In the instant case, the accused has made a prima facie showing that the search and seizure were illegal, establishing that they were made without a warrant; the burden thereafter rests with the prosecution to show proper justification. (People v. Haven, 59 Cal.2d 713, 717 [31 Cal.Rptr. 47, 381 P.2d 927].) I believe that the People have not met this burden, and that the decision of the superior court holding the search of the upstairs bedroom illegal must be upheld.

¶17The order dismissing the information pursuant to Penal Code section 995 should be affirmed.

¶18Tobriner, J., concurred.