Opinion
For Opinion on Hearing, see 139 Cal.Rptr. 725,566 P.2d 627.
Opinion on pages 515-537 omitted.
Pursuant to Const., art. VI, § 21.
[134 Cal.Rptr. 564]William P. Min, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Lawrence P. Scherb II and Joyce L. Kennard, Deputy Attys. Gen., for plaintiff and respondent.
KINGSLEY, Associate Justice.
Defendant was charged with burglary, in violation of section 459 of the Penal Code. After his motion under section 1538.5 of the Penal Code had been denied, he pled guilty to burglary in the second degree. Proceedings were suspended and he was placed on probation. He has appealed; we reverse.
Two other men were jointly charged with the burglary and they made a joint 1538.5 motion. Only an appeal by Solario is before us.
The plea and judgment were before and by Commissioner Price, sitting by stipulation as a temporary judge. The 1538.5 motion was heard and decided by Judge Ryburn. It is Judge Ryburn's order that we review on this appeal.
As a result of his conviction in the case at bench, probation was revoked in a prior case and reinstated with an additional jail term imposed as a condition of the new probation. That action is not before us on this appeal.
Officer Fleet, of the Los Angeles Police Department, had investigated a burglary at 135 North New Hampshire in the City of Los Angeles. The burglary had been committed by prying open the door with a screwdriver. The burglars were described by the victim as two male Latins, between 17 and 20 years old, wearing T-shirts and blue jeans. Ten days later, the officer saw two men, fitting the description of the burglars, exit from an apartment house directly across from No. 135 and enter No. 135. Suspecting that these might be the burglars involved in the crime, he entered the building and checked the apartment doors. He saw that the door to apartment No. 401 had been pried open in the same way as the door involved in the previous burglary. The door was about one-third open and the officer could see defendant removing pieces of jewelry from a dresser and place them on a bed. A screwdriver was on the bed. The officer, who was in uniform, entered the room, saying, as he entered: 'Police Officer.' He then arrested defendant and another man in the apartment.
On this appeal, defendant contends that his 1538.5 motion should have been granted suppressing '[a]ll property taken on October 18, 1974, from those premises located at 135 North New Hampshire, Apartment 402, at the time of defendant's arrest at said time and place, consisting of a screwdriver, together with all evidence respecting any and all conversations, observations, and other events that occurred at said time and place, and all fruits thereof.'
No point was made in the trial court, or here, of the error in referring to Apartment 402 rather than to Apartment 401. As did the parties and the court below, we disregard the clerical error.
We agree with defendant that the entry violated section 844 of the Penal Code. As to that issue, we regard the case [134 Cal.Rptr. 565] at bench as being indistinguishable from People v. Keogh (1975) 46 Cal.App.3d 919, 927, 120 Cal.Rptr. 817, which held that announcement of an officer's status and purpose must be made prior to, and not during, his entry.
The Attorney General relies on two earlier decisions from this district which, he contends, we are required to follow. Neither case so relied on is in point. In People v. Glasspoole (1975) 48 Cal.App.3d 668, 121 Cal.Rptr. 736, the officer had both announced his identity and his purpose prior to the entry. In People v. Lee (1971) 20 Cal.App.3d 982, 98 Cal.Rptr. 182, the officers testified that they entered in order to prevent the imminent destruction of evidence--a position that the magistrate had accepted as true.
'Although initially Officer Smith knocked at defendant's door and identified himself as 'Joe,' before the end of his conversation with Marilyn Glasspoole, and prior to his entry into her residence, he identified himself as a police officer, and placed her under arrest for being in a place where marijuana was being used. The demand for entry was contained in the purpose for which admittance was sought--demand for entry was made to effectuate her arrest. The record reveals that she understood a demand for entry was made by Smith, since she attempted to bar his entry by continuing close the door.' (People v. Glasspoole, supra, 48 Cal.App.3d at p. 673, 121 Cal.Rptr. at p. 739.)
The Attorney General also contends that Eogh is distinguishable on the theory that, in that case, the entry was to arrest a tenant of the premises, whereas the entry here was to arrest a non-tenant burglar. We are aware that in several cases, language to that effect has been used. We do not regard that language as either controlling or persuasive. It is now well settled that a defendant has a 'vicarious' right to raise an issue of unlawful search even though it is the rights of a third person that have been directly violated (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 98 Cal.Rptr. 649, 491 P.2d 1; People v. Martin (1955) 45 Cal.2d 755, 290 P.2d 855.) In Kaplan, the Supreme Court (6 Cal.3d at pp. 156-157, 98 Cal.Rptr. at p. 652, 491 P.2d at p. 4) explained the reasons for the adoption of the vicarious exclusionary rule in California as follows:
In People v. Ortiz (1969) 276 Cal.App.2d 1, 80 Cal.Rptr. 469, the officer had been requested by the owner of premises, presumably vacant, to enter, arrest and remove any trespassers; in People v. Sanchez (1969) 2 Cal.App.3d 467, 82 Cal.Rptr. 582, the officers entered a house, known to be unoccupied, in response to a neighbor's complaint of prowlers; in People v. Minervini (1971) 20 Cal.App.3d 832, 98 Cal.Rptr. 107, the entry was by a motel manager for the legitimate purpose of checking the rooms; in People v. Wilcox (1969) 276 Cal.App.2d 414, 81 Cal.Rptr. 60, the vacationing owner had requested that the police make a 'vacation check' on his residence; the trial court, and the court of appeal, held that that request could reasonably be construed as including a request to enter if signs of trespass or vandalism appeared.
'The evil which gave rise to the Cahan [People v. Cahan, 44 Cal.2d 434, 282 P.2d 905] decision, we said, 'occurs whenever the government is allowed to profit by its own wrong by basing a conviction on illegally obtained evidence, and if law enforcement officers are allowed to evade the exclusionary rule by obtaining evidence in violation of the rights of third parties, its deterrent effect is to that extent nullified. Moreover, such a limitation virtually invites law enforcement officers to violate the rights of third parties and to trade the escape of a criminal whose rights are violated for the conviction of others by the use of the evidence illegally obtained against them.''
That rationale is equally applicable here.
Finally, the Attorney General contends that, since the officer, prior to entry, saw defendant, whom he had reasonable cause to believe was a burglar, taking articles out of a drawer, he was justified in entering, without complying with section 844, by virtue of the provisions of section 841. While there is dictum to that effect [134 Cal.Rptr. 566] (see, for example, People v. Lee, supra, (1971) 20 Cal.App.3d 982, 989-990, 98 Cal.Rptr. 182), the Supreme Court has expressly rejected that doctrine. In People v. DeSantiago (1969) 71 Cal.2d 18, 76 Cal.Rptr. 809, 453 P.2d 353, that court said (at pp. 29-30, 76 Cal.Rptr. at p. 816, 453 P.2d at p. 360):
Section 841 of the Penal Code provides:
'[W]e have not disregarded the suggestion of amicus curiae that compliance with knock-and-notice provisions should be excused when an officer has personal knowledge that a felony is being committed in an apartment or residence contemporaneously with his entry. Aside from the difficulties inherent in determinations as to what constitutes 'personal knowledge' on the part of the officer, it is clear that his knowledge or belief that a felony is being committed relates to probable cause for arrest--not to the imminence of disposal of evidence. As we stated in Gastelo [People v. Gastelo, 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706] and have reiterated above: 'Just as the police must have sufficiently particular reason to enter at all, so must they have some particular reason to enter in the manner chosen.' (67 Cal.2d at p. 589, 63 Cal.Rptr. at p. 12, 432 P.2d at p. 708.) The reason for entry without announcement must be additional to the basic reason for entry. [Fn. omitted.]' (Italics in original.)
However, our conclusion that the entry was unlawful, as not complying with section 844, does not dispose of the case at bench. 'Noncompliance with section 844 may . . . be excused when the officer acts on a reasonable and good faith belief that compliance would increase his peril, frustrate an arrest, or permit the destruction of evidence.' (People v. Bradley (1969) 1 Cal.3d 80, 88, 81 Cal.Rptr. 457, 462, 460 P.2d 129, 134, quoting from People v. Rosales (1968) 68 Cal.2d 299, 305, 66 Cal.Rptr. 1, 437 P.2d 489.) A police officer is entitled to act on information secured by looking through an open door. (People v. Bertuko (1969) 71 Cal.2d 84, 77 Cal.Rptr. 217, 453 P.2d 721; Witkin, Cal.Evidence (2d ed. 1972 and supp.), § 105.) All of the physical evidence involved in defendant's motion was legally observed by Officer Fleet prior to his entry and from a place where he had a right to be. He could lawfully testify as to what he had seen without the items themselves being introduced. Insofar as the motion sought suppression of that testimony it was properly denied. But the seizure of the physical articles was the fruit of the entry. Nothing in the record before us suggests that the arrest of defendant would have been frustrated had the officer announced his status and purpose before rather than during his entry. Insofar as the motion sought to suppress the physical items themselves, it was improperly denied in part, a reversal is mandated. (People v. Hill (1974) 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1.)
The judgment (order granting probation) is reversed.
FILES, P. J., and JEFFERSON, J., concur.
'The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission, or after an escape.
'The person making the arrest must, on request of the person he is arresting, inform the latter of the offense for which he is being arrested.'