Respondents Lopez, Marquez, Rodriguez and Ortega were charged with possession of heroin. At the conclusion of the preliminary examination the magistrate held them to answer.
The evidence presented to the committing magistrate establishes that one Arthur Marquez was a parolee who had failed to abide by the conditions of his parole. His parole agent, Jack Allen, testified that he had been informed that Arthur Marquez was using narcotics, that by reason of his failure to report as required by the terms of his parole, Marquez had avoided taking the tests required of narcotic parolees designed to detect such violations. Allen therefore determined to take Marquez into custody and had requested the Pomona Police Department to assist him in this effort.
Parole Agent Allen had been informed, as had the Pomona police, that Marquez was residing at the Clayton Motel with one Helen Fayloga. At approximately 10:30 p.m. on the night of July 11, 1967, Agent Allen and four officers from the Pomona Police Department proceeded to the Clayton Motel. The manager of the motel identified a photograph of Arthur Marquez. He advised the officers that he was staying with
The officers also saw in the parking area of the motel a car owned by Arthur Marquez' cousin, the defendant Ruben Chavira Marquez. The officers had seen Arthur and Ruben together in this vehicle on several occasions. The police knew that Fayloga was a name used by defendant Helen Ortega. They were personally acquainted with her and with Ruben Marquez and knew from past experience that both of them had been extensively engaged in traffic in narcotics. When the officers arrived at the apartment occupied by Arthur Marquez and Helen Ortega, Parole Agent Allen and Detectives Oliver and Miller went to the front door. Detectives Traber and McGavock went to the rear of the apartment. Officer Oliver knocked on the front door. When a woman's voice asked who was there, the officer answered, "The Manager." The woman then asked, "What do you want?" Officer Oliver replied that it was in relation to a phone call.
At this point defendant Helen Ortega parted the venetian blinds and looked out the window at the officer. He recognized her from their frequent prior contacts and it was evident that she recognized him, for she cried out what sounded like the warning "Narcos."
When the officers' true identity became known to the occupants of the apartment, the following described events ensued. Officers Traber and McGavock testified that they had taken their positions at the rear of the apartment to prevent Arthur Marquez from escaping in this direction in the event he attempted so to do. They observed a person they thought to be Arthur Marquez, but who was later identified as his cousin Ruben, attempt to jump through the rear window. As described by Officer McGavock:
"It appeared to be a running motion, and he crashed into the screen coming approximately halfway out of the window, at which time I ordered him to halt. As a matter of fact, I stated `Halt, police. Stay inside.'"
After Ruben retreated back into the apartment, the officers heard the sound of more running footsteps and then the sound of "the lever of the toilet being constantly worked." Officer Traber located "sort of a wash basin" and standing on it looked into the window from which the sound was emanating. Inside he observed Ruben and defendant Lopez. There
Officer Traber yelled as loudly as he could, "Stop flushing that toilet, get away from that toilet" and, to his fellow officers in front, "Make her open that door." Officer Oliver, who had remained waiting outside the front door throughout this period, heard Officer Traber crying "`halt' or `get away' or something like that" and proceeded to force entry. Various illegal items were recovered from the toilet. The several defendants, who were all under the influence of narcotics, were placed under arrest. A search disclosed further contraband and narcotic paraphernalia. The wanted parolee, Arthur Marquez, was absent from the premises but was arrested in some unspecified fashion on the same day.
In granting the motion to set aside the information, the trial court indicated its acceptance of respondents' basic contention that by reason of the failure of the arresting officers to comply with the requirements of section 844 of the Penal Code before entering the apartment, their entry and their subsequent search and seizure of contraband were illegal. In the trial court and in their arguments in this court, respondents have relied mainly upon the decisions in People v. Gastelo, 67 Cal.2d 586 [63 Cal.Rptr. 10, 432 P.2d 706]; People v. Rosales, 68 Cal.2d 299 [66 Cal.Rptr. 1, 437 P.2d 489]; and People v. Arellano, 239 Cal.App.2d 389 [48 Cal.Rptr. 686].
For reasons which we shall set out more fully hereinafter, the cited decisions do not support, but rather argue against, respondents' basic contention. In the case at bench, the officers made no entry into the apartment until after their identity had been made known to the occupants
In approaching the basic question presented by the instant appeal, care must be taken not to confuse the issues involved herein with those arising in two other superficially related, but essentially dissimilar, situations. The instant case is not one in which the officers, lacking reasonable cause to enter a private residence prior to their use of subterfuge, resorted to
Contrary to defendants' contentions, decisions such as People v. Reeves, 61 Cal.2d 268, 273 [38 Cal.Rptr. 1, 391 P.2d 393], and People v. Miller, 248 Cal.App.2d 731, 736 [56 Cal.Rptr. 865], have no direct applicability here. These decisions hold that "Unless the officers had reasonable cause to enter [a] room before the door was opened they cannot lawfully rely on any information secured by inducing the opening of that door by ruse or subterfuge." (Italics added.) (People v. Reeves, supra, p. 273.)
In the instant case, prior to the moment they knocked on the door, the officers had the unquestionable right both to arrest Arthur Marquez and to enter the apartment in which they had reasonable cause to believe he would be found.
As we have previously noted, the holdings in People v. Rosales, supra, 68 Cal.2d 299; People v. Gastelo, supra, 67 Cal.2d 586, and the decision of this court in People v. Arellano, supra, 239 Cal.App.2d 389, are not controlling here. In each of these cases the police made a forcible, or wholly unannounced, entry into a private residence, the occupants of which were unaware of the officer's identity or purpose. In none of these cases did the prosecution make an adequate showing of the existence of exigent circumstances justifying unannounced or forcible entry. These decisions indicate California's recognition that "Section 844 is designed to protect fundamental rights. `Decisions in both the federal and state courts have recognized, as did the English courts, that the requirement is of the essence of the substantive protections which safeguard individual liberty.' (Ker v. California (1962) 374 U.S. 23, 49 [10 L.Ed.2d 726, 747, 83 S.Ct. 1623], Brennan, J. dissenting.)" (People v. Rosales, supra, 68 Cal.2d 299, 304.)
This well understood rule is founded upon two basic considerations relating to the practical hazards of law enforcement. As Justice Brennan further stated in Ker v. California, 374 U.S. 23, 57-58 [10 L.Ed.2d 726, 752-753, 83 S.Ct. 1623]: "First, cases of mistaken identity are surely not novel in the investigation of crime. The possibility is very real that the police may be misinformed as to the name or address of a suspect, or as to other material information. That possibility is itself a good reason for holding a tight rein against judicial approval of unannounced police entries into private homes. Innocent citizens should not suffer the shock, fright or embarrassment attendant upon an unannounced police intrusion. Second, the requirement of awareness also serves to minimize the hazards of the officers' dangerous calling. We expressly recognized in Miller v. United States, supra (357 U.S. at p. 313, footnote 12 [2 L.Ed.2d at p. 1340, 78 S.Ct. 1190]), that compliance with the federal notice statute `is also a safeguard for the police themselves who might be mistaken for prowlers and be shot down by a fearful householder.' Indeed, one of the principal objectives of the English requirement of announcement of authority and purpose was to protect the
Because of these underlying considerations, certain logical exceptions to the rule always have been equally well recognized.
Since the officers could not have been denied admittance in any event, it is apparent that insofar as the instant criminal charges are concerned, respondent's suffered no prejudice by reason of the officers' failure to comply with this section. Moreover, the subsidiary argument that the use of a ruse, with its attendant risk of exposure, might violate the constitutional rights of innocent parties by causing them to react as did respondents herein is manifestly absurd. The fact that respondents possibly may have assumed that the primary reason for the officers' presence was to arrest them rather than the parole violator, Arthur Marquez, only proves the lasting verity of the biblical observation that "The wicked flee when no man pursueth." (Proverbs 28:1.)
The order is reversed.
Roth, P.J., concurred.
FLEMING, J. Concurring.
In the absence of exigent circumstances the use of a ruse to obtain entry to premises to make an arrest does not satisfy the requirements of Penal Code, section 844, that a peace officer first demand admittance and explain his purpose, and I would so hold in this case. (People v. Rosales, 68 Cal.2d 299 [66 Cal.Rptr. 1, 437 P.2d 489]; cf. Miller v. United States, 357 U.S. 301 [2 L.Ed.2d 1332, 78 S.Ct. 1190].) But here the ruse failed to achieve its purpose, and its effect was entirely dissipated when those
Petitions for a rehearing were denied February 26, 1969, and the petitions of respondents Lopez, Marquez and Rodriguez for a hearing by the Supreme Court were denied April 2, 1969.