Opinion
For Opinion on Hearing, see 66 Cal.Rptr. 1, 437 P.2d 480.
Joseph C. Battaglia, Beverly Hills, under appointment by Court of Appeal, for appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Brian Amer, Deputy Atty. Gen., for respondent.
FOURT, Associate Justice.
This is an appeal from a judgment of conviction of a violation of section 11500, Health and Safety Code, a lesser included offense than that charged in the information.
In an information filed in Los Angeles on February 9, 1966, defendant was charged with having in his possession, on January 13, 1966, certain heroin for sale. It was charged further that defendant previously had been convicted of burglary in El Paso, Texas, in 1951, and had served a term in prison therefor; that he had been convicted of a violation of section 11500, Health and Safety Code, in Los Angeles in 1957, and had served a term in the state prison therefor, and that he had been convicted of another violation of section 11500, Health and Safety Code, in Los Angeles in 1960 and had served a term in the state prison therefor. A jury trial was properly waived. The judge found defendant guilty of a violation of section 11500, Health and Safety Code (simple possession of heroin), a lesser included offense to the charge in the information. The charged priors were found to be true. Defendant was sentenced to the state prison, the sentence to run concurrently with any other time to be served. A timely notice of appeal was filed.
Some of the facts as established by the evidence are as follows: On January 13, 1966, Waldo Damerell, a state parole officer, received a telephone call from Officer Barbarick, a narcotics officer of the San Fernando Police Department, with reference to the status of Genovevo Rosales There was a girl at the doorway at the La Rue Street address. The door was open, but apparently a screen door was closed. Officer Barbarick, from the outside of the house, recognized Berru inside the house before any entry was made by the officers. The girl was advised that those entering the house were police officers. Rosales was observed through the screen door seated on a couch. Mr. Damerell made an identification from a picture of Rosales which he had with him. The officers entered the house quickly because they feared that otherwise Rosales would take flight. After entry Rosales was apprehended and searched. The search disclosed a condom containing a considerable quantity of heroin.
Rosales testified in his own behalf to the effect that there was no screen door on the house, that the door was closed prior to the entry of the officers and that the heroin in his possession was for his own personal use and not for purposes of sale.
Rosales was found guilty of simple possession of heroin, a lesser included offense to that charged. The three charged prior convictions were found to be true. Rosales was sentenced to the state prison, the sentence to run concurrently with any other time to be served.
Appellant now asserts that the search of his person and the premises was unreasonable and that the entry into the house violated the provisions of section 844, Penal Code.
Penal Code, section 844, provides:
The record seems to indicate that Mr. Damerell was an active participant in the entry and arrest of appellant for he testified, 'We entered through the front door which was open' and 'We entered quickly and placed the subject into custody.' The officers searched Rosales and found the heroin in his possession. It is perfectly proper for a parole officer to be accompanied by policemen; indeed, under the circumstances, it could have been foolhardy not to have been so accompanied. (See People v. Giles, 233 Cal.App.2d 643, 646, 43 Cal.Rptr. 758.) There was substantial compliance under the circumstances with the provisions of section 844 of the Penal Code. Here the 'exigent circumstances' excused the strict compliance with the statute. The contraband in this case was susceptible to destruction in a matter of seconds; indeed, the parole violators themselves undoubtedly would have made an effort to escape had there been the slightest opportunity open to them. (See People v. Manriquez, 231 Cal.App.2d 725, 728, 42 Cal.Rptr. 157; People v. Maddox, 46 Cal.2d 301, 294 P.2d 6.)
Surely Rosales had no constitutional right to get a head start on the officers under the circumstances. As stated in People v. Carrillo, 64 Cal.2d 387, at page 391, 50 Cal.Rptr. 185, at page 187, 412 P.2d 377, at page 379:
As we explained in People v. Maddox (1956) [citation], however, Penal Code section 844 is simply a codification of the common law and does not require literal compliance with its terms where 'the officer's peril would have been increased or the arrest frustrated.' We recognized that 'The officer's compliance with [this section] will delay his entry, and cases might arise in which the delay would permit destruction or secretion of evidence * * *.' Since 'Suspect have no constitutional right to destroy or dispose of evidence, and no basic constitutional guarantees are violated because an officer succeeds in getting to a place where he is entitled to be more quickly than he would, had he complied with section 844,' we concluded 'that when there is reasonable cause to make an arrest and search and the facts known to him before his entry are not inconsistent with a good faith belief on the part of the officer that compliance with section 844 is excused, his failure to comply with the formal requirements of that section does not justify the exclusion of the evidence he obtains.' (See also Ker v. State of California [citation].)' (Emphasis added.)
Rosales and Berru were already parole absconders and what could be more natural than that they would continue in desperate flight if provided with any avenue of escape--at least the officers had a right to suspect and reasonably believe that if they knocked on the door and announced their presence and awaited a reply, at least one of the parolees would have been out of reach in a matter of seconds.
Since the development and perfection of indoor plumbing through which evidence can quickly be destroyed, or at least lost, the section (Penal Code, § 844) in question is a dangerous anachronism if interpreted literally. In these days when many of the criminal element are captured only after long, tedious, expensive chases, and frequently long gun battles, a rule requiring officers to forfeit the valuable element of surprise is dangerous to law enforcement and society.
In an abortion case where the police believed a woman was being aborted at a described house at a certain location the court said: 'However, in People v. Maddox, [citation], the court held that the requirements of section 841 of the Penal Code are analogous to the requirements of section 844; that if the officer has reasonable grounds to make an arrest, a violation of section 841 would be unrelated and collateral to the securing of evidence by a search incident to the arrest, for what the search turns up will in no way depend on whether the officer informed 'the person to be arrested of the intention to arrest him, of the cause of the arrest and the authority to make it.' It was further held that:
"* * * [s]ince the officer's right to invade defendant's privacy clearly appears, there is no compelling need for strict compliance with the requirements of section 844 to protect basic constitutional guarantees. [Citations.] We conclude therefore that when there is reasonable cause to make an arrest and search and the facts known to him before his entry are not inconsistent with a good faith belief on the part of the officer that compliance with section 844 is excused, his failure to comply with the formal requirements of that section does not justify the exclusion of the evidence People v. Ramsey,
In People v. Gauthier, 205 Cal.App.2d 419, at page 425, 22 Cal.Rptr. 888, at page 892, it is set forth:
'* * * 'The appellant cannot complain that the officers entered the house without having made a demand for admittance and given an explanation of the purpose for which admittance was desired. It appears to have been probable that if such had been done, incrimination evidence would have been destroyed.' [Citations.] In the Shelton case, the court stated ([People v. Shelton] 151 Cal.App.2d , at p. 588 [311 P.2d 859]): 'The cases hold that where compliance with this provision ['after having demanded admittance and explained the purpose for which admittance is desired'] would probably frustrate the arrest or permit the destruction of incrimination evidence compliance is not required.''
In People v. Russell, 223 Cal.App.2d 733, at page 738, 36 Cal.Rptr. 27, at page 29, it is set forth:
'In determining the legality of a search and seizure made as an incident to a lawful arrest, the law does not demand a strict compliance with the provisions of section 844, in all cases [citations]; for instance, noncompliance is justified in situations in which, had the officer demanded admittance and stated his purpose, the arrest would probably have been frustrated or destruction or secretion of incriminating evidence might have resulted or the suspect might have escaped. [Citations.]'
In People v. Maddox, 46 Cal.2d 301, at page 306, 294 P.2d 6, at page 9, the often quoted statement is contained, namely:
'It must be borne in mind that the primary purpose of the constitutional guarantees is to prevent unreasonable invasions of the security of the people in their persons, houses, papers, and effects, and when an officer has reasonable cause to enter a dwelling to made an arrest and as an incident to that arrest is authorized to make a reasonable search, his entry and his search are not unreasonable. * * * Moreover, since the demand and explanation requirements of section 844 are a codification of the common law, they may reasonably be interpreted as limited by the common law rules that compliance is not required if the officer's peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose. [Citation.] Without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide these questions in the first instance.
'When, as in this case, he has reasonable grounds to believe a felony is being committed and hears retreating footsteps, the conclusion that his peril would be increased or that the felon would escape if he demanded entrance and explained his purpose is not unreasonable. In this proceeding we are not concerned with whether or not the officer's failure to do so would have justified defendant in using force to protect his person or property, or whether or not a jury in a trespass action might conclude that reasonable cause for the officer's failure to comply with the demand and explanation requirements did not right exist. Moreover, since the officer's to invade defendant's privacy clearly appears, there is no compelling need for strict compliance with the requirements of section 844 to protect basic constitutional guarantees. [Citations.]'
The officers, by their prompt and efficient actions, violated no basic constitutional or statutory guarantee by getting inside of the house, where they they were entitled to be, more quickly than they would have had they complied with the literal provisions of the section.
The judgment is affirmed.
WOOD, P. J., and LILLIE, J., concur.
'To make an arrest, a private person, if the offense be a felony and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.'