68 Cal.2d 299, 11533, People v. Rosales

Docket Nº:11533
Citation:68 Cal.2d 299, 66 Cal.Rptr. 1, 437 P.2d 489
Opinion Judge:[9] Traynor
Party Name:People v. Rosales
Attorney:[7] Genovevo Rosales, in pro. per., and Joseph C. Battaglia, under appointment by the Supreme Court, for Defendant and Appellant. [8] Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Brian Amer, Deputy Attorney General, for Plaintiff and Respondent.
Case Date:February 28, 1968
Court:Supreme Court of California

Page 299

68 Cal.2d 299

66 Cal.Rptr. 1, 437 P.2d 489

The PEOPLE, Plaintiff and Respondent,


Genovevo ROSALES, Defendant and Appellant.

Cr. 11533.

Supreme Court of California

Feb. 28, 1968.

        In Bank

        Rehearing Denied March 28, 1968.

Page 300

[Copyrighted Material Omitted]

Page 301

         Genovevo Rosales, in pro. per., and Joseph C. Battaglia, Beverly Hills, under appointment by the Supreme Court, for defendant and appellant.

        Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Brian Amer, Deputy Atty. Gen., for plaintiff and respondent.

        TRAYNOR, Chief Justice.

        Defendant appeals from a judgment of conviction of possession of heroin. (Health & Saf.Code, § 11500.) The prosecution was based on the discovery of heroin on defendant's person at the time of his arrest. Defendant contends that the heroin was obtained by an unconstitutional search and seizure by the arresting officers.

        Defendant and Fred Berru were arrested in a house in the Pacoima area of Los Angeles County. They were apprehended by Parole Officer Damerell, San Fernando Police Officer Barbarick, and two other police officers. Officer Barbarick had received information that defendant and Berru were arranging sales of heroin by telephone at the house where they were arrested. He got in touch with Parole Officer Damerell and learned that both suspects were parolees who had violated their paroles by failure to report and that the Adult Authority had suspended defendant's parole and issued an all points bulletin for his arrest. The officers then went to the house to arrest defendant for parole violation. Officers Barbarick and Damerell went to the front door, and the other officers covered the back of the house. Before entering, one officer saw Berru through a front bedroom window and another officer saw defendant through the front screen door. Defendant was sitting on a couch with his back to the door. Officers Barbarick and Damerell quickly entered the house and accosted defendant. Just before they arrested defendant they passed a girl and told her that they were police officers but they did not announce their purpose or demand entry before going into the house.

        There is some evidence that the girl was related to Berru, but there is no evidence of her age, or whether she lived at the house, was visiting or just arriving for a visit. It does not appear whether the officers were in uniform. Damerell was not the parole officer of either Berru or Rosales, and there is no evidence that either knew who he or the other officers were.

Page 302

        Damerell testified that before he entered the house he believed that the screen door was closed but that the wooden door was open. 1

        Although the prosecution did not elicit sufficient details of Officer Barbarick's information on defendant's current narcotics activities to show he had reasonable cause to believe that defendant was guilty of a new narcotics offense, defendant's arrest was justified by the suspension of his parole and the order of the Adult Authority that he be returned to custody. (Pen.Code, §§ 3060, 3061.) It also appears that before they entered the house the officers had reasonable cause to believe that defendant was there. The crucial question, therefore, is whether the officers' failure to explain their purpose and demand admittance as required by section 844 of the Penal Code 2 vitiated the arrest. We hold that it did.

        We note at the outset that the officers' identification of themselves to the girl did not constitute substantial compliance with section 844. That section requires that an officer explain his purpose before demanding admittance, not merely that he identify himself as an officer. 'The burden of making an express announcement (of purpose) is certainly slight.' (Miller v. United States (1958) 357 U.S. 301, 309, 78 S.Ct. 1190, 1196, 2 L.Ed.2d 1332.)

        Such identification alone could constitute substantial compliance with section 844 only if the surrounding circumstances made the officers' purpose clear to the occupants or showed that a demand for admittance would be futile. There is nothing in the record to show that any of the occupants or even the girl knew that the officers' purpose was to arrest the defendant or understood that they were demanding admittance. 3

Page 303

         The Attorney General contends that since the officers did no more than open an unlocked screen door and walk in, no 'breaking' within the meaning of the statute occurred. We do not agree with this contention. Although the common law rule was first articulated to regulate entry by force, it is not limited to entries effected by physical violence. Section 844 is a codification of the common law. (People v. Maddox (1956) 46 Cal.2d 301, 306.) At the very least, it covers unannounced entries that would be considered breaking as that term is used in defining common law burglary. (Rest.2d Torts (1965) § 206, com. b; Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California (1964) 112 U.Pa.L.Rev. 499, 505; Wilgus, Arrest Without a Warrant (1924) 22 Mich.L.Rev. 798, 806.) As so defined, no more is needed 'than the opening of a door or window, even if not locked, or not...

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