Joe Sterling Et Al. on Habeas Corpus, In re
| Citation | 45 Cal.Rptr. 280 |
| Decision Date | 22 June 1965 |
| Docket Number | Cr. 10320 |
| Court | California Court of Appeals |
| Parties | In re Joe STERLING et al. on habeas corpus. |
For Opinion on Hearing, see 47 Cal.Rptr. 205, 407 P.2d 5.
Walter L. Gordon, Jr., Los Angeles, for petitioners.
Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., Wm. R. Yates, Deputy City Atty., for respondent.
These are misdemeanor gambling cases originally brought in the Los Angeles Municipal Court. Throughout the trial and on appeal the principal defense was the claim of an illegal search in violation of the state and federal Constitutions. We conclude (1) that petitioners have been convicted on evidence obtained by means of an unlawful search in violation of the state and federal Constitutions and (2) that habeas corpus is an appropriate remedy to vacate judgments of conviction secured through the use of unconstitutionally-seized evidence, and that in these cases relief under the writ should be granted.
Prior to petitioners' arrests, police officers had received information through an anonymous phone call and through undercover operators and informers that professional gambling was again being conducted at the Westside Social Club on premises formerly used as a Safeway store. Arriving at the location about 1:30 a. m., the police found many parked cars on the lot and on the street, and saw persons, usually solitary males, approach the front door, hold short conversations at a window, then pass through an outer door, and thereafter through an inner door. After observing these activities, police officers went to the rear of the building, placed theirs ears against the wall, and were able to hear the following: 'I'm coming out for a point.' 'Who's going to cover me?' 'I will take five bucks of that.' From this and similar conversation the officers deduced that a dice game for money was taking place inside. They could not, however, identify any of the voices.
The police officers next climbed a ladder to the roof of the two-story building and made a hole in the roof approximately two and a half feet square by forcing up the wooden roof with a crowbar. Through this hole in the roof the officers were unable to see any of the players inside, only the ceiling below the roof, but by lowering themselves into the attic and looking through a vent in the ceiling, they were able to observe petitioners standing around a pool table engaged in shooting craps. One petitioner was seated at the pool table acting as houseman for the game. Another petitioner entered the room, went to the pool table where he was handed an unknown amount of money, and then left the room. Three petitioners stopped shooting craps, sat down at one of several card tables, and began playing cards for money.
To obtain a better view, the police then moved from the attic to an upstairs office which overlooked the main room, and after making a hole in the office partition the officers resumed their observations of activities in the room below. According to the arrest report these observations continued for approximately twenty minutes.
Thereafter, upon a prearranged signal by these officers their partners forced entry through the front door. Gambling equipment was seized, and all petitioners were arrested.
Petitioners contend that the direct evidence of their gambling was obtained by police officers as a result of an illegal search in violation of the Fourth and Fourteenth Amendments to the United States Constitution and of Article I, section 19, of the California Constitution.
The City Attorney replies that the evidence was properly admissible because it was obtained as an incident to a valid arrest made with reasonable cause to believe that a public offense was being committed in the presence of the arresting officers.
We untangle this skein by first considering the question of reasonable cause to make an arrest, thereafter the circumstances which justify forcible entry to make an arrest, and then the question of permissible search incident to an arrest.
A police officer may make an arrest whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence. (Penal Code, § 836(1).) Gaming is a public offense. Presence is not limited to propinquity but is liberally construed to comprehend any crime which is apparent to the officer's senses. (People v. Burgess, 170 Cal.App.2d 36, 41, 338 P.2d 524; People v. Bock Leung Chew, 142 Cal.App.2d 400, 402-403, 298 P.2d 118.) In the present case as a basis for reasonable cause we have (1) the anonymous phone call that professional gambling was being conducted at the Westside Social Club; (2) the knowledge of the officers from past arrests, undercover operators, and other informants that professional gambling had been conducted at these premises during the past year; (3) the observations by the officers of the entry of individual males into the club at 1:30 a. m. and their manner of entry; and (4) conversations directly overheard by the officers which strongly indicated that craps were being played for money. We agree with the City Attorney that the arresting officers had reasonable cause to believe a public offense was being committed and being committed in their presence. (People v. Hen Chin, 145 Cal.App.2d 583, 587, 303 P.2d 185 citing Pacetti v. State of Georgia, 82 Ga. 297, 7 S.E. 867.)
Being satisfied that the police officers had reasonable cause to make arrests, we take up the second point, what methods were permissible to the police officers to effect their arrests.
The persons to be arrested were inside the building, and the persons to do the arresting were outside the building and therefore squarely faced with the problem how they could reasonably and constitutionally get inside in order to make their arrests. According to the early rule at common law, adopted by statute in California, they would have been first required to demand admittance and explain the purpose for which they desired admittance, and only after such demand and explanation would they have been privileged to break in to effect their arrest. (Penal Code, § 844.)
However, to the rule at common law a number of exceptions developed, arising out of danger to life and limb, danger of escape, and danger of destruction or concealment of evidence during the period of delay caused by the demand and explanation. Experience demonstrated that in certain types of crimes if demand for admittance and explanation of purpose were made known prior to entry, the evidence of the crime might be entirely disposed of. This is certainly true in narcotic cases and is likely to be true in most gambling cases. Indeed in this very case, according to the arresting officers' report, a sign inside the premises told patrons what to do in case of a police raid.
Because of these practical considerations the common law exceptions to the original requirement for demand and explanation came to be acknowledged in California, and the police were authorized to force an entrance without demand or explanation when they had reasonable grounds to believe that otherwise evidence would be destroyed or the danger to the arresting officers increased or the person to be arrested make good his escape if demand were made and purpose explained. (People v. Maddox, 46 Cal.2d 301, 305-306, 294 P.2d 6.) These common law exceptions have been read into the specific language of Penal Code § 844 by the California Supreme Court, and their constitutionality sustained in a five-to-four decision by the United States Supreme Court. (Ker v. State of California, 374 U.S. 23, 37-41, 83 S.Ct. 1623, 10 L.Ed.2d 726.)
This rule of 'exigent circumstances' (Ker, p. 40, 83 S.Ct. 1623) is a rule of reason involving some relaxation of Section 844, in order to meet situations where announced entry might be dangerous and delayed entry would probably result in destruction of evidence. Curiously enough, most of the California cases which apply the exceptions have involved fact situations where some demand has actually been made. (People v. Maddox, 46 Cal.2d 301, 294 P.2d 6 (); People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (); People v. Foster, 199 Cal.App.2d 866, 19 Cal.Rptr. 283 (); People v. Fisher, 184 Cal.App.2d 308, 7 Cal.Rptr. 461 (); People v. Williams, 175 Cal.App.2d 774, 1 Cal.Rptr. 44 (); People v. Steinberg, 148 Cal.App.2d 855, 307 P.2d 634 (police identification); People v. Moore, 140 Cal.App.2d 870, 872, 295 P.2d 969 ().) In the last case Mr. Justice Ashburn pointed out that the right to break down barriers is recognized (1) in order to make an immediate arrest, and (2) to save evidence from destruction.
Accordingly, with the information which the police had obtained in this case they would have been privileged to make an arrest without prior demand or explanation and to use any appropriate means to effect as rapid an entry as possible in order to prevent probable destruction of evidence of gaming and of equipment used for that purpose. The officers could have forced an entry through the front door, or surreptitiously entered by means of a pass key, or entered quietly through a window, or used other appropriate means to get inside the building to make their arrests as quickly as possible. Noncompliance with the requirement for demand and explanation would have been justified by the need for speed.
This brings us to our third question--what search may be made as an incident to a lawful arrest.
A search is, of course, a different thing from an...
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