People v. Abdon

• Decision Date: 15 December 1972
• Docket Number: Cr. 21387
• Citation: 30 Cal.App.3d 972,106 Cal.Rptr. 879
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Rufino Guerrero ABDON and Jimmie Florencio Abdon, Defendants and Respondents.

Page 879

106 Cal.Rptr. 879

30 Cal.App.3d 972

The PEOPLE, Plaintiff and Appellant, v. Rufino Guerrero ABDON and Jimmie Florencio Abdon, Defendants and Respondents.

Cr. 21387.

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

Dec. 15, 1972.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Joseph P. Busch, Dist. Atty., Harry Wood, Head, Appellate Division, Los Angeles, and Daniel L. Lieberman, Deputy Dist. Atty., for plaintiff and appellant.

Richard S. Buckley, Public Defender, James L. McCormick, Leon Hitch, Harry W. Brainard and Richard A. Curtis, Deputy Public Defenders, for respondent Rufino Guerrero Abdon.

Hanson & Egers, Inc., and Mitchell W. Egers, Los Angeles, for respondent Jimmie Florencio Abdon.

FORD, Presiding Justice.

The People have appealed from an order of the superior court setting aside an information (Pen.Code, § 995) by which the defendants Rufino Guerrero Abdon and Jimmie Florencio Abdon were accused of possession of heroin (count I), growing and cultivating marijuana (count II), and possession of marijuana (count III). (Pen.Code, § 1238, subd. (a)(1).) ¹

At the preliminary hearing the defendants made a motion to quash the search warrant on the ground of the insufficiency of the affidavit in support of the search warrant. The motion was denied.

The first witness offered by the People at the preliminary hearing was Gary Wilson, a narcotic agent for the State of California. At 1:00 p.m. on September 24, 1971, he arrived at the premises located at 9575 South Maie Street in Los Angeles, with respect to which he was in possession of the search warrant. He and Agent Watkins went to the front door of the one-story residence, each having his badge 'out.' Agent Watkins knocked on the door and stated: 'Police officers. We are conducting a narcotics investigation. We have a search warrant. Open the door.' The door was open but the screen door was shut. No one came to the door. Agent Wilson saw 'an individual lying on the couch inside the house'; that person was the defendant Rufino Abdon. The officers opened the screen door and entered the house.

Other agents subsequently brought the defendant Jimmie Abdon into the house; he had been outside the house. The two men were placed on the couch and shown the search warrant. A search of the premises was then conducted. A probation department form bearing the name of Jimmie Abdon and the address of the house was found in the dresser in the back bedroom. Gas company receipts in the name of Dolores Abdon, 9575 Maie, and medical identification cards in her name were also found. Other documents discovered were a post card from the State Department of Human Resources addressed to Jimmie Abdon at 9575 Maie Avenue and a social security card in his name. Dolores Abdon was not present at the residence while the officers were there.

Agent Wilson further testified that a can of milk sugar was found in the dining room area. After testifying as to his experience and training in the field of narcotics law enforcement, the officer stated: 'Milk sugar is used to cut heroin. It is put in with heroin to dilute it.' Behind the dresser in the back bedroom was found a 'cellophane sandwich bag' containing what appeared to be 'marijuana residue.' Two balloons were found; one was a red balloon which was in the bottom drawer of the dresser in the back bedroom. The officer testified that 'a common way of packaging heroin' was by means of balloons. Spoons, pieces of balloons and burnt match covers were also obtained, one plastic bag with the spoons and balloon pieces being found in the garage 'adjacent to that address.' The defendants were placed under arrest.

Agent Wilson further testified that what appeared to be two marijuana plants were 'found outside the back door at the corner of the porch growing'; the 'dirt appeared to have been dug up, and it was wet.'

After the defendants were arrested they were advised of their rights. Agent Wilson asked the defendant Rufino Abdon if he lived at that address and Rufino said that he did.

On cross-examination by counsel for Rufino Abdon, Agent Wilson testified that he went to the house at 1:00 o'clock in the afternoon. He believed that it was on a Friday. After the statement was made that they were police officers conducting a narcotic investigation and had a search warrant, and after 'Open the door' was said, the lapse of time before the officers opened the door was five or six seconds. He could see through the door and observe someone sleeping on the couch. When the officers entered, 'Rufino Abdon then was in the process of waking up, and Agent Watkins advised him what . . . (they) were there for.' A further portion of the witness' testimony was: 'He advised him we were police officers. Again we displayed our badges. He advised him we were conducting a narcotics investigation and that we had a search warrant. At this time I showed him the original search warrant I had in my hand.'

On cross-examination by counsel for defendant Jimmie Abdon, Agent Wilson testified that when he went to the location Jimmie Abdon was outside. Several agents went immediately to Jimmie, who was in the vicinity of some vehicles that were parked in the driveway. The witness further testified that at the time he noticed 'somebody laying on the couch.' He could not tell whether he was awake or asleep.

Agent Watkins testified that he had a conversation with defendant Jimmie Abdon in the back bedroom of the residence, which he related as follows: 'I asked Jimmie Abdon, 'Is the heroin in the dresser drawer yours?' He stated, 'It is mine.' He later stated, 'The heroin is mine.' He also stated, 'The money is mine. Don't bust my wife.''

Agent Watkins further testified that Jimmie Abdon requested a shirt and coat prior to being taken to be booked; they went into the middle bedroom and Jimmie Abdon 'extracted a shirt and coat from a closet.' Rufino Abdon requested a pair of shoes and Agent Watkins got a pair, which Rufino stated were his shoes, from the closet in the middle bedroom; Rufino put on the shoes.

Agent Watkins testified that there 'was women's and men's clothing in the dresser' in the back bedroom. He further testified that Jimmie Abdon 'was concerned about the women's clothing being next to the location of the narcotics.'

Section 1531 of the Penal Code, relating to the execution of a search warrant, is as follows: 'The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, He is refused admittance.' (Emphasis added.) A provision of the nature found in section 1531 permitting an officer to break into a residence in the execution of a search warrant if, after notice of his authority and purpose, 'he is refused admittance,' is not to be given cursory effect. In Masiello v. United States (1963), 115 U.S.App.D.C. 57, 317 F.2d 121, p. 123, Chief Justice Burger, then Circuit Judge Burger, stated: 'It would be a grave error to construe what we have said to mean that we are disposed to sustain all speedy entries and searches which are forcibly executed. Quite the contrary. We do so here only on the narrow grounds revealed by this record. Our concern with the importance of compliance with § 3109 (18 U.S.C. § 3109) is demonstrated by our earlier remand (footnote omitted herein) for the hearing now under review; close cases such as this will always receive careful appellate scrutiny. It is very desirable as an aid to appellate review that the facts concerning the required preliminary steps to entry should be developed and the factors relied on by the prosecution should appear in the record and be the subject of findings.'

In Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971), the officers, armed with a search warrant, arrived at the front door of the appellant's house at 12:40 p.m. They announced that they were police officers and had a warrant. Thereafter approximately ten or fifteen seconds elapsed before the officers broke in the door. The court, in the course of determining that the forcible entry violated the standards of the Fourth Amendment and that the fruits of the ensuing search were improperly admitted at the appellant's trial, stated as follows (277 A.2d at p. 163): 'It is settled in this Commonwealth that the Fourth Amendment prohibition against unreasonable searches and seizures demands that before a police officer enters upon private premises to conduct a search or to make an arrest he must, absent exigent circumstances, give notice of his identity and announce his purpose. (Citations.) The purpose of this announcement rule is that '* * * the dignity and privacy protected by the fourth amendment demand a certain propriety on the part of policemen even after they have been authorized to...