A court, sitting without a jury, found defendant guilty of possession of marijuana (Health & Saf. Code, § 11530) and possession of marijuana for sale (Health & Saf. Code, § 11530.5). He admitted prior felony convictions for possession of narcotics (Health & Saf. Code, § 11500) and possession of marijuana (Health & Saf. Code, § 11530).
Defendant appeals from the judgment, contending that the court erred in admitting, over objection, evidence of marijuana plants found in the yard adjacent to his residence and marijuana and narcotics paraphernalia found inside his house.
On July 28, 1967, Deputy Sheriff Narron, an experienced narcotics officer, was told by an informer of unknown reliability that defendant had marijuana in his house, was engaged in selling it, and was on parole for its possession. The informer also gave information concerning defendant's car. The next evening the same informer told Narron that defendant was growing marijuana by a fig tree at the rear of his residence.
After receiving this second report, Narron went to defendant's address about 9 p.m. on July 29, 1967. The premises included a house that faced the street; a driveway that ran along the east of the house and terminated in a garage at the rear and east of the house; defendant's residence which was attached to the rear of the garage; and a large "fenced in yard" to the west of defendant's residence. The extent and the manner of the fencing are not disclosed by the record.
Narron, noticing that defendant's car was gone, believed he was away and went into the "rear yard area" to investigate. There he saw a marijuana plant in a keg two or three feet from the base of a fig tree that was about 20 feet from defendant's door. The officer did not know if the tree was in the backyard of the owner (who presumably lived in the front house) or of defendant. It was necessary for the officer to be within almost a foot of the tree to distinguish the marijuana plant. According to the officer, the keg was "partially covered by the leaves and the limbs of the fig tree." When later asked if the "marijuana plant was hidden under the fig tree," the officer replied, "I don't believe you could say exactly hidden, however, it was covered by foliage." He did not have a search warrant.
After leaving defendant's premises Narron went to the sheriff's office where he obtained a photograph of defendant and from a record check ascertained he had been, but was no longer, on parole for "narcotics." Narron
Narron, accompanied by four other officers, then returned to defendant's residence about 3:15 a.m. on July 30, 1967. At this time Narron ascertained that there were three marijuana plants in the keg. The largest one was about two and a half feet tall; the others about a foot and a half tall. One of the officers stayed to guard the plants.
Narron and the other officers approached defendant's residence. The door was fully open. From the outside Narron, with the aid of a flashlight, saw a man who appeared to be asleep on a bed. Without asking permission or speaking to defendant, the officers entered. Narron testified that "as I went into the living room area, the defendant ... raised on his side as I was approximately half way across the room." Narron showed his "I.D.," illuminated by a flashlight, and identified himself. Another officer in uniform was by him. The officers told defendant he was under arrest for possession of marijuana and informed him of his "constitutional rights." When asked whether he minded if a search was made of the house, defendant replied, "No, go ahead." An ensuing search disclosed marijuana and specified narcotics paraphernalia.
Defendant contends that Officer Narron's discovery and seizure of the marijuana plants in the yard violated the Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643, 655-657 [6 L.Ed.2d 1081, 1089-1091, 81 S.Ct. 1684, 84 A.L.R.2d 933].) The Fourth Amendment provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." An essentially identical guarantee of personal privacy is contained in article I, section 19, of the California Constitution.
Bielicki v. Superior Court, 57 Cal.2d 602 [21 Cal.Rptr. 552, 371 P.2d 288], and Britt v. Superior Court, 58 Cal.2d 469 [24 Cal.Rptr. 849, 374 P.2d 817], cited by defendant, differ from the instant cases. In the cited cases unlawful conduct of the petitioners in public toilets, which were enclosed by three walls and a door, was observed by officers through a pipe installed through the roof in one case and through vents in the other, and this court condemned the officers' conduct as constituting exploratory searches. There the officers' surveillance, because of the character of the place to which it was directed, violated the petitioners' right of privacy. The character of the place here in question (i.e. the yard near the defendant's door) manifestly is totally dissimilar to an enclosed toilet stall.
Defendant's reliance on Wattenburg v. United States, 388 F.2d 853, 857, is misplaced. He points to the statement in Wattenburg that "it seems to us a more appropriate test [than one based on curtilage] in determining if a search and seizure adjacent to a house is constitutionally forbidden is whether it constitutes an intrusion upon what the resident seeks to preserve as private even in an area which, although adjacent to his home, is accessible to the public." The court applied this test and concluded that Wattenburg, in placing a stockpile of Christmas trees in the backyard of the motel where he resided, not more than 35 feet therefrom, sought to protect it from the search and that the search and the seizure of trees from the stockpile were
Here it does not appear that the officers demanded admittance and explained the purpose for which admittance was desired before their entry, but the Attorney General argues that section 844 is inapplicable because, he asserts, the entry through the open door was not a "breaking" within the meaning of this section.
The rule of announcement was early set forth in Semayne's Case (1603) 77 Eng. Rep. 194, which states, "... In all cases when the King ... is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K's process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors...." (See generally, Blakey, The Rule of Announcement and Unlawful Entry, 112 U.Pa. L.Rev. 499, 500 et seq; Wilgus, Arrest Without a Warrant, 22 Mich. L.Rev. 798, 800-807.)
In Sabbath v. United States, 391 U.S. 585 [20 L.Ed.2d 828, 88 S.Ct. 1755], a federal statute substantially identical to Penal Code section 844 was interpreted in accord with People v. Rosales, supra, 68 Cal.2d 299, to apply to opening a closed but unlocked door. The court stated in part (at p. 589 [20 L.Ed.2d at p. 833]), "... the statute uses the phrase `break open' and that connotes some use of force. But linguistic analysis seldom is adequate when a statute is designed to incorporate fundamental values and the on-going development of the common law."
The Legislature in codifying common law rules does not necessarily freeze the law to the rules existing at common law. (See e.g. People v. Spriggs, 60 Cal.2d 868, 871 [36 Cal.Rptr. 841, 389 P.2d 377].) Questions arise on which the Legislature has been silent or inexplicit, and the courts must answer these questions in the light of common law principles and the basic objectives of the legislation (see People v. Spriggs, supra, at p. 872; Stone, The Common Law in the United States, 50 Harv. L.Rev. 4; Pound, Common Law and Legislation, 21 Harv. L.Rev. 383, 388.)
People v. Hamilton, 257 Cal.App.2d 296, 300-302 [64 Cal.Rptr. 58], which contains dictum that section 844 "leaves the law of arrests where the common law left it" and that an officer may enter an open door without warning, is disapproved insofar as it is inconsistent with the views expressed herein.
The admission of that evidence requires reversal of the judgment on both counts. The marijuana and narcotics paraphernalia found in the search of the house manifestly were highly prejudicial, and, although as we have seen the marijuana plants in the yard were not obtained by an illegal search, the properly admitted evidence that defendant had possession of those plants was not overwhelming. From the recited evidence it appears that the officer did not know whether the plants were in the yard of defendant or the owner. Under the circumstances it is clear that the error in admitting the evidence found in the house contributed to the judgment. (Chapman v. California, 386 U.S. 18, 21-24 [17 L.Ed.2d 705, 708-710, 78 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Watson, 46 Cal.2d 818, 835-837 [299 P.2d 243]; People v. Marshall, 69 Cal.2d 51, 62 [69 Cal.Rptr. 585, 442 P.2d 665].)
The judgment is reversed.
Traynor, C.J., McComb, J., and Mosk, J., concurred.
I concur in the opinion of the majority that the marijuana and narcotics equipment found in Bradley's house were seized in violation of Penal Code section 844, and must be excluded from evidence. The majority reach this conclusion in the following language: "Although section 844 codified the common law rule requiring peace officers to demand admittance and explain their purpose before they break open a door or window, the section is silent or inexplicit as to whether the officers must make such a demand and explanation before they enter a house through an open door. Even if at common law an unannounced intrusion through an open door was lawful, we are satisfied in view of the purposes of section 844, as stated in People v. Rosales ... 68 Cal.2d 299, 304, that the demand and explanation requirements of that section also apply where, as here, officers walk into a dwelling through an open door at nighttime when the occupant apparently is asleep." (Ante, p. 87 [81 Cal.Rptr. 457, 460 P.2d. 129].) This language is unduly restrictive, and
Section 844 serves to protect the privacy of occupants (see Miller v. United States (1958) 357 U.S. 301, 313-314 [2 L.Ed.2d 1332, 1340-1341, 78 S.Ct. 1190]) and the safety of occupants, policemen, and bystanders (see People v. Rosales (1968) 68 Cal.2d 299, 304 [66 Cal.Rptr. 1, 437 P.2d 489].) I cannot accept the limiting language of the majority opinion in the light of these objectives: the intrusion upon privacy does not depend upon the time of day; an awake occupant is perhaps more likely to offer violent resistance than a sleeping one. In People v. Beamon (1968) 268 Cal.App.2d 61, 64-65 [73 Cal.Rptr. 604], the Court of Appeal stated: "In our opinion an open door does not excuse noncompliance with section 844 unless noncompliance is otherwise excused under the rules declared in Rosales. Accordingly, a police officer may not enter through an open door of a house without first demanding admittance and explaining the purpose for which admittance is desired unless he reasonably and in good faith believes that such compliance would increase his peril, frustrate an arrest, or permit the destruction of evidence. We are persuaded to this conclusion by the purpose of section 844 as declared in Rosales and by the clear language of the section which does not restrict the required announcement to any particular type of entry by the police officers.... Moreover, if analogy to the law of burglary is required, we note that in California no breaking or forceable entry is required in proof of the commission of a burglary ... and, accordingly, that a burglary can be committed by entering through an open door or window."
I believe that the Court of Appeal in Beamon correctly interpreted our decision in Rosales. I would therefore hold that the officers' entry in the instant case violated section 844 not because they entered upon a sleeping occupant at night, but simply because there was neither substantial compliance with section 844 nor excuse for noncompliance.
I concur also in the majority's reasoning that the protection of the Fourth Amendment is not limited to buildings, nor delimitated by common law definitions of the curtilage, but extends "wherever an individual may harbor a reasonable `expectation of privacy.'"
The marijuana plants were located in a keg under a fig tree in a back yard which was entirely or partially fenced. They were not on a portion of the property open to the general public, nor to implied invitees such as mailmen, milkmen, trash collectors (compare People v. Edwards, supra, 71 Cal.2d 1096) and the like. They were implanted about 20 feet from defendant's door and apparently could not be seen — or at least not seen clearly enough to be identified as marijuana — until the searcher approached to within a foot of the plants. The defendant could reasonably expect that members of the public calling at his residence would stay in the approximate vicinity of the door and pathway, would see only what can be seen from that viewpoint, and that the balance of the yard was private.
The recent decision of the Ninth Circuit in Wattenburg v. United States (9th Cir.1968) 388 F.2d 853, offers strong support for this position. In that case the defendant stole about 1,000 red fir trees from federal land and piled them about 35 feet behind his motel. Federal investigators cut cross-sections from nine stumps on the land, and without a valid warrant searched through the pile of trees to find the nine trees which matched the stumps. The court held the search unlawful, since it constituted "an intrusion upon what the resident seeks to preserve as private even in an area which, although adjacent to his home, is accessible to the public." (P. 857.)
The grounds advanced in the majority opinion to distinguish this case appear insufficient. Although the 1,000 fir trees must have been highly conspicuous from the motel 35 feet away, no evidence in the instant case indicates whether the marijuana plants were visible from Bradley's doorway. Despite the implication of the majority opinion, there is no evidence in Wattenburg that the nine trees were covered by other trees, or deliberately hidden by the defendant; one would assume they were not deliberately concealed,
People v. Edwards, supra, 71 Cal.2d 1096, also supports defendant's right to exclude the evidence. In that case we held a search of a trash can 2-3 feet from Edwards's back door unlawful. Edwards's trash can was covered, but such coverage was essential to insure its privacy since it was located where various members of the public would pass by, including, of course, the trash collector. Bradley's plants were not covered, but such coverage was not essential to insure their privacy since the plants could not be recognized from any area open to the public. The key similarity is that in both cases evidence in the back yard of a residence was not visible from the doorstep, walkway, or other place where visitors might be. It was, in short, located in a place where it was relatively safe from public intrusion, or so the occupant could reasonably believe. The trash can cannot logically be distinguished from the marijuana plants.
This case does not deal with "open fields," but with the yard adjacent to a private residence. (Compare Hester v. United States (1924) 265 U.S. 57 [68 L.Ed. 898, 44 S.Ct. 445].) The resident cannot reasonably expect privacy in those portions of the yard open to the public, or if not to the public, at least to a substantial number of people. (Compare People v. Terry, supra, 70 Cal.2d 410, permitting a search in the common garage of a large apartment building.) Nor can he expect privacy for things in plain sight from such public areas. (People v. Terry, supra, 70 Cal.2d 410; People v. Willard, supra, 238 Cal.App.2d 292.) But he can reasonably, and probably does, expect privacy for the remainder of the property. No evidence in this case shows that the marijuana plants could be seen until the officer left the area open to the public and approached to a point approximately one foot from the plants. Consequently, the evidence must be excluded.
Peters, J., and Sullivan, J., concurred.