Badillo v. Superior Court

294 P.2d 23, 46 Cal. 2d 269, 1956 Cal. LEXIS 177

• Court: California Supreme Court
• Decided: February 24, 1956
• Docket: S. F. 19346
• Status: Published

Opinions

TRAYNOR, J.

By information petitioner was charged with possessing heroin in violation of Health and Safety Code, section 11500. His motion to set aside the information on the ground that the evidence against him was obtained by an illegal search and seizure was denied, and he now seeks a writ of prohibition to prevent his trial.

Evidence was presented at the preliminary hearing of the following facts: At approximately 6 p. m. on January 6, 1955, federal narcotics Agents Hipkins and Casey and Officers Getchell and McKinley of the San Francisco Police Department went to a house on Sycamore Street in San Francisco. Agent Hipkins retnained in front of the house, and the three other officers went to the rear. Officer Getchell knocked at the back door, which was locked, and received no response. He then forced the door open and entered the house followed by Agent Casey. Shortly thereafter, petitioner, followed closely by Officer Getchell, ran out the front door and threw a package of heroin toward Agent Hipkins, who recovered it. None of the officers had a search warrant.

In Rogers v. Superior Court, ante, p. 3 [291 P.2d 929], we held that a “defendant has been held to answer without reasonable or probable cause if his commitment is based entirely on incompetent evidence,” (ante, at p. 7) and accordingly, in such a case the trial court should grant a motion to set aside the information (Pen. Code, § 995), and if it does not do so, a peremptory writ of prohibition will issue to prohibit further proceedings. (Pen. Code, § 999a.) No problem is presented in applying this rule in cases involving searches and seizures in which the facts bearing on the legality of the search or seizure are undisputed and establish as a matter of law that the evidence is or is not admissible. In many eases, however, the evidence before the magistrate bearing on this issue may be in conflict or susceptible of conflicting inferences or consist only of the testimony of prosecution witnesses, and under these circumstances the court in ruling on a motion to set aside the information will frequently not be in a position to make a final determination as to the admissibility of the evidence. Accordingly, the information should not be set aside on the ground that essential evidence was illegally obtained if there is any substantial evidence or applicable presumption to support a contrary conclusion (see People v. Michael, 45 Cal.2d 751, 753-754 [290 P.2d 852]; People v. Martin, 45 Cal.2d 755, 761-762 [290 P.2d 855]), and in such cases the ultimate decision on admissibility can be made at the trial on the basis of all of the evidence bearing on the issue. (See People v. Gorg, 45 Cal.2d 776, 780-781 [291 P.2d 469]; People v. Berger, 44 Cal.2d 459, 464 [282 P.2d 509].) In the absence of evidence to the contrary, it is presumed that the officers acted legally (see People v. Farrara, ante, p. 265 [294 P.2d 21]), and if the issue is raised for the first time on a motion to set aside the information, the motion should be denied unless the evidence before the committing magistrate establishes that essential evidence was illegally obtained. When, however, the question of the legality of an arrest or of a search and seizure is raised either at the preliminary hearing or at the trial, the defendant makes a prima facie case when he establishes that an arrest was made without a warrant or that private premises were entered or a search made without a search warrant, and the burden then rests on the prosecution to show proper justification. (Dragna v. White, 45 Cal.2d 469, 471-472 [289 P.2d 428]; Coverstone v. Davies, 38 Cal.2d 315, 319 [239 P.2d 876]; Hughes v. Oreb, 36 Cal.2d 854, 858 [228 P.2d 550]; People v. Boyles, 45 Cal.2d 652, 656 [290 P.2d 535]; People v. Gorg, supra, 45 Cal.2d 776, 782-783.)

In the present case defendant made a prima facie showing of illegal entry by establishing that the officers broke into the house without a search warrant, and the burden then rested on the prosecution to introduce evidence that the officers had reasonable cause to break and enter to make an arrest. (See Pen. Code, § 844.) Since no such evidence was presented, it must be taken as established for the purposes of this proceeding that the entry into the house was unlawful,

* and it is immaterial whether or not it was defendant’s house. (People v. Martin, supra, 45 Cal.2d 755, 760-761.)

The attorney general contends that defendant abandoned the evidence when he threw it toward Agent Hipkins and that therefore he may not object to its use against him. It clearly appears, however, that defendant’s flight out the front door and attempted disposal of the evidence was the direct result of Officer Getchefl’s illegal entry, and accordingly, the evidence was obtained in violation of constitutional guarantees. (Silverthorne Lbr. Co. v. United States, 251 U.S. 385, 392 [40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426]; People v. Berger, 44 Cal.2d 459, 462 [282 P.2d 509]; People v. Stewart, 232 Mich. 670 [206 N.W. 337, 338].)

Let the peremptory writ of prohibition issue as prayed.

Gibson, C. J., Schauer, J., and McComb, J., concurred.

Although the preliminary hearing in this case was held before the decision in People v. Cahan, 44 Cal.2d 434 [282 P.2d 905], defendant anticipated a possible change in the law, and the magistrate permitted him to establish that the entry was made without a search warrant. Presumably in reliance on the nonexelusionary rule, the prosecution made no attempt to prove that the officers had reasonable cause to enter the house to make an arrest. Since defendant has not been in jeopardy (In re Harron, 191 Cal. 457, 466 [217 P. 728]; see People v. Godlewski, 22 Cal.2d 677, 681-682 [140 P.2d 381]; Pen. Code, §§ 999, 1021), there is nothing to prevent the prosecution from instituting a new proceeding and proving, if it can, that the officers had reasonable cause to enter the premises to make an arrest.