Judge Must OK Battering Ram’s Use, Justices Rule

Police in Los Angeles can continue to use a motorized battering ram to break down the doors of suspected drug dealers, but they must first get a judge’s approval, the state Supreme Court ruled Friday.

Responding to a suit by the American Civil Liberties Union against the Los Angeles Police Department, the high court voted 4 to 3 to place restraints on battering rams by requiring that police must obtain not only search warrants, but also specific approval from a judge to use the devices.

The court also reversed five death penalty cases, including one in which a San Bernardino man beat and tortured to death his step-daughter, and another in which, the justices said, the defendant’s lawyer was a compulsive gambler with a significant drug problem. With the reversals, the Bird court overturned 64 of 68 death sentences it has heard.

Los Angeles police unveiled their motorized battering ram--a 14-foot steel pole mounted on an armored personnel carrier--in 1985. They maintained that without it, officers could not safely enter houses where rock cocaine is sold because the dwellings were so well fortified and the occupants so heavily armed.

The ram was used first at a Pacoima home, where, amid much media hoopla, police found two unarmed women, three young children and a trace of cocaine. The ACLU sued to block any future use of the device, charging that police were using the rams mostly in minority neighborhoods.

Although the court said battering rams can still be used, the justices made it clear that they frowned on their use, saying that the devices are so dangerous they “presumptively” violated constitutional guarantees against unreasonable searches and seizures.

“Authority to make a forced entry by means of a powerful armed vehicle that smashes blindly through the walls of a residence is by no means implicit in a routine warrant to search for contraband,” the court said in an opinion by Justice Stanley Mosk.

“More important, the motorized battering ram is usually not the least destructive, safest or only method of conducting such a search. Rather it is so destructive that its use against residences generally infringes on occupants’ and owners’ rights to be secure against unreasonable searches and seizures.”

The court said that because of the extreme nature of battering rams, police will need a search warrant, which they have needed all along, and prior approval of the judge who approves the warrant. In addition, officers will have to decide at the scene whether there are emergency circumstances--”amounting to an immediate threat of injury to officers executing the warrant or reasonable grounds to suspect that evidence is being destroyed,” the court said

Bird Dissents

In a dissenting opinion, outgoing Chief Justice Rose Elizabeth Bird agreed with the ACLU position, decrying “just how dangerous and unnecessary use of the motorized battering ram is in executing search or arrest warrants.”

Noting that other departments do not use battering rams, she likened them “to the use of an Uzi to shoot an illegally parked driver in the leg so he will be unable to escape getting a ticket.”

Calling the device a “military vehicle,” Bird said there is a danger that the battering ram can cause a house to collapse. She also noted that Los Angeles police used it four times--finding no cocaine or small amounts at three of the homes

Chief Justice-designate Malcolm Lucas, joined by Justice Edward Panelli, also dissented, but for different reasons than Bird. The conservative justices said the court should not issue specific dictates to police, such as telling them to get prior approval for a particular weapon.

“The courts,” Lucas wrote, “should neither interfere with nor restrain the use of particular law-enforcement methods or techniques which play a legitimate role in fighting crime, so long as no unreasonable risk of danger to human life is involved.”

No Problem Foreseen

Assistant Los Angeles City Atty. Lewis Unger said in a phone interview that the court-imposed requirement will not be a problem. But he said the decision raises the specter that other suits could be brought seeking to require prior approval from judges before police use tear gas or guns.

Police spokesman Lt. Dan Cooke noted that the department has not used the motorized battering ram for more than a year, in part because drug dealers have changed their methods and also because officers have been using other techniques--such as hand-held battering rams.

The court said police can continue unrestricted use of so-called “flashbangs,” fireworks-like bombs that are tossed into residences being searched to frighten the occupants and divert their attention. Police ignite flashbangs as soon as the battering ram breaks into the house.

In other action, the court:

- Unanimously overturned the death penalty sentence of Dale M. Bloyd, finding that Bloyd’s attorney erred by failing to present any evidence on his behalf in the penalty phase of the trial. The opinion was the first majority opinion written by Justice Panelli. Bloyd’s conviction remains intact. He was found guilty of the 1981 murders of Martha Jones and Donald North in Yuba County.

- Overturned by a 4-3 vote the death sentence of Melvin M. Wade, convicted in San Bernardino of beating and torturing to death his stepdaughter, Joyce Strong, 10, in 1981. The opinion was unsigned.

Basing the ruling on earlier precedent, the court said the trial judge erred by failing to tell jurors that they could spare Wade, even if they found that aggravating circumstances of the crime outweighed mitigating circumstances on behalf of Wade. Wade evidently suffered from severe psychological problems, including a split personality, and was a battered child himself.

Bird, joined by Justices Cruz Reynoso and Allen Broussard, said Wade’s conviction also should have been thrown out because the lawyer representing Wade was incompetent. The lawyer, for example, told jurors that perhaps the death penalty was appropriate for Wade.

- Unanimously reversed the conviction of Fermin R. Ledesma, who had been sentenced to death in the murder of a gas station employee in San Jose in 1978. In an opinion by Mosk, the justices said Ledesma had an incompetent lawyer. Attorney Jefferson Parrish admitted being a compulsive gambler who spent long evenings betting while trying to defend Ledesma during the day, the court said, noting that he failed to mount an adequate defense. Parrish also had a significant drug-abuse problem, the court said.

- Unanimously reversed the conviction and death sentence of Joe E. Johnson, convicted of murdering Aldo Cavallo during a 1979 burglary in Sonoma County. The opinion by Reynoso said the judge mistakenly allowed testimony by a witness who had been hypnotized. The court has ruled that such testimony must not be allowed in criminal trials.

- Voted 4 to 3 to overturn the death sentence of Venson L. Myers, convicted of murdering a Glendora liquor store customer in 1979. The opinion by Justice Joseph Grodin cited several errors during the penalty phase of the trial. In the dissent, Bird said the conviction also should have been reversed because, she contended, blacks were excluded from the jury.

- Ruled by a 5-2 vote that people facing contempt of court orders are entitled to jury trial when the potential sentence is six months in jail.

The ruling, written by Grodin, came in the case of San Francisco pornographers James and Artie Mitchell, who were sentenced to six months in jail and fined $61,000 for violating a court order that they stop lewd acts and prostitution at their theater here. Justice Lucas, joined by temporary justice, Superior Court Judge Frank Kim of San Joaquin County, dissented, saying jury trials are not required under federal law and thus should not be required in state courts.