Guerrero v. Superior Court

• Decision Date: 26 November 1969
• Court: California Court of Appeals Court of Appeals
• Parties: Joe Lopez GUERRERO, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, PEOPLE of the State of California, Real-Party in Interest. Civ. 35264.

Page 443

82 Cal.Rptr. 443

2 Cal.App.3d 136

Joe Lopez GUERRERO, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, PEOPLE of the State of California, Real-Party in Interest.

Civ. 35264.

Court of Appeal, Second District, Division 3, California.

Nov. 26, 1969.

David F. Aberson, Sherman Oaks, for petitioner.

No appearance for respondent.

Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, and Harry R. Sondheim, Deputy Dist. Atty., for real party in interest.

FEINERMAN, ^* Associate Justice pro tem.

Pursuant to Penal Code section 1538.5(i), petitioner seeks a writ of mandate directed to respondent court requiring it to annul its action of August 14, 1969, denying his motion to suppress evidence, and to make a new and different order granting the motion to suppress evidence.

We have concluded that the trial court's action in denying the motion to suppress evidence was correct and that the alternative writ heretofore issued should be discharged and the peremptory writ denied.

STATEMENT OF FACTS

By stipulation of the parties, the 1538.5 motion was submitted to the trial court on the transcript of the preliminary examination and argument by counsel. Evidence of the following facts was presented at the preliminary examination: At approximately 6 p.m. on May 27, 1969, Deputy Sheriff Richard Kennerly contacted a confidential informant at East Los Angeles Sheriff's Station. The informant told Deputy Kennerly that a person by the name of 'Joe', whom he described as a made Caucasian of Latin descent, approximately 35 to 40 years old, 5 feet 7 inches in height, and 135 pounds in weight, was living at 1571 Ridgecrest, Apartment 'F', and drove a blue Camaro which he parked in stall number 76 underneath the apartment building.

Deputy Kennerly testified that 'He (the informant) stated that in order to obtain narcotics from a person named Joe, he would have to go to his house and knock on the door. That person was very leery of the police. He would open the curtain which was adjacent to the door to see who it was. If he recognized you and he had narcotics, he would let you inside the location. He said that if he thought it was the police, he would attempt to destroy the evidence. He said if you called the person named Joe on the telephone, that the person would always say he did not have any narcotics.'

After receiving this information from the informant, Deputy Kennerly went to the apartment complex and contacted the manager. The manager told the deputy that a man was living at the location who fit the description given him and that the apartment was registered to a Nita Rene Daniel. He also stated that he had previously called the Monterey Park Police Department because of 'his suspicions of the persons and the numerous traffic going to and from that location.' The manager then provided Deputy Kennerly with the license number of the blue Camaro and a key to Apartment 'F'.

Deputy Kennerly checked out the license number given to him and was advised that the car was registered to a Jose Guerrero. Thereafter, the officer returned to the East Los Angeles Sheriff's Station and conducted a search of the informant who had previously agreed to cooperate in an attempt to purchase narcotics from 'Joe' at the location in question. The informant, who was found to have no narcotics on his person, was furnished with $25 in County Funds, the serial numbers of which had been recorded. The informant was taken to the vicinity of the residence under surveillance. Deputies watched him walk to the front door of 1571 Ridgecrest, Apartment 'F', observed him knock on the door, saw the door opened, saw him enter the apartment, and saw him exit from the apartment approximately five minutes later. The informant walked back to the sheriff's car, handed a small yellow balloon to Deputy Kennerly, and stated that 'he had purchased it from a suspect known as Joe who was in the location and the only other persons in the location were his (Joe's) wife and small child.'

Officers entered the apartment where they observed the petitioner and Nita Rene Daniel standing in the northeast bedroom of the apartment. Petitioner was arrested, advised of his Mirando rights, and then searched. He was found to have $675 on his person. Twenty-five dollars was the same money that had been given to the informant prior to his going to the location. A subsequent search of the apartment turned up the narcotic contraband which was seized by the officers and admitted into evidence at the preliminary examination.

THE LEGALITY OF THE ENTRY INTO THE APARTMENT

The sole issue presented is the validity of the deputy sheriffs' entry into the premises without complying with Penal Code section 844. ¹ It is the contention of the People that the trial court had sufficient evidence before it from which it could infer that the informant had personal knowledge of defendant's preparation for the destruction of evidence if and when police officers were to come to the premises, and that in reliance thereon, the officers were authorized to enter the premises without compliance with Penal Code section 844.

Petitioner relies upon PEOPLE V. MARQUEZ, 273 CAL.APP.2D ---, 77 CAL.RPTR. 907,^A and MARTINEZ V. SUPERIOR COURT, 273 CAL.APP.2D ---, 78 CAL.RPTR. 427,^B to support his conclusion that the trial judge in this case did not have 'substantial specific facts' in the information given by the informant to the authorities to justify an inference of personal knowledge regarding those matters about which the informant had given information.

In People v. De Santiago, ^c 71 Cal.2d ---, 76 Cal.Rptr. 809, 453 P.2d 353, the California Supreme Court held that '* * * the particular reason for entry must be based upon the specific facts of the case. Thus, where officers have obtained particular information which leads them to reasonably conclude that the occupants of an apartment or residence have specifically resolved to effect disposal in the event of police intrusion or have made specific preparations in that regard (citations), or when officers prior to entry are able to detect activity from within which leads them to reasonably conclude that the occupants are then engaged in the destruction or concealment of evidence (citations), an unannounced entry may be justified. In these cases, however, compliance with the applicable knock-and-notice provision is excused not because of a...