People v. Berutko

• Decision Date: 07 May 1969
• Docket Number: Cr. 12695
• Citation: 453 P.2d 721,71 Cal.2d 84,77 Cal.Rptr. 217
• Court: California Supreme Court
• Parties: , 453 P.2d 721 The PEOPLE, Plaintiff and Respondent, v. Fred Leon BERUTKO, Defendant and Appellant.

Page 217

77 Cal.Rptr. 217

71 Cal.2d 84, 453 P.2d 721

The PEOPLE, Plaintiff and Respondent, v. Fred Leon BERUTKO, Defendant and Appellant.

Cr. 12695.

Supreme Court of California,

In Bank.

May 7, 1969.

Rehearing Denied June 4, 1969.

Fred Leon Berutko, in pro. per., Frederic G. Marks, Santa Monica, under appointment by the Supreme Court, Robert P. Mandler, Los Angeles, under appointment by the Court of Appeal, and Wellman, Contarino & Mandler, Los Angeles, 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.

SULLIVAN, Justice.

Defendant Fred Leon Berutko was charged by information with one count of possession of heroin (Health & Saf.Code, § 11500) and one count of possession of heroin for sale (Health & Saf.Code, § 11500.5). The information also charged one prior conviction for possession of heroin. He entered a plea of not guilty to the charged offenses and denied the prior conviction. Trial by jury was waived and the cause was submitted on the transcript of the preliminary examination; by stipulation all exhibits received at the preliminary examination were marked for identification and offered into evidence subject to objections by counsel. Following argument defendant was found guilty, motion for a new trial was denied, and the allegation of the prior conviction was found to be true. Criminal proceedings were then suspended and proceedings were instituted under section 3051 et seq. of the Welfare and Institutions Code. Upon defendant's return from the narcotics rehabilitation center, criminal proceedings were resumed, probation was denied, and defendant was sentenced to state prison. He appeals from the judgment of conviction.

On July 30, 1965, Officer Charles Wilson, a detective assigned to narcotics duty, received information from an informant that defendant was engaged in the sale of heroin at a certain address in Los Angeles. The information also stated that defendant was on parole from a prior narcotics conviction but was not reporting to his parole officer. A physical description of defendant was given and it was represented that he drove a red and white Buick automobile. No license number was provided.

Officer Wilson's prior contact with the informant had been limited to several telephone conversations. One arrest had been made on the basis of information provided by him, and the person arrested had been held to answer, but the case had not yet come to trial.

After verifying defendant's prior conviction through police records and obtaining his photograph, Officer Wilson and three other officers went to the address provided by the information. They had neither an arrest nor a search warrant. The manager of the apartment building identified defendant from the photograph and stated to the officers that he had 'a numerous amount of traffic' to and from his apartment and that he 'appeared suspicious.'

The officers placed defendant's apartment under surveillance. They saw several persons go to the door and then leave without entering; it appeared that there was no one at home. Presently defendant drove up in a red and white Buick and entered his apartment. The officers continued their surveillance for 10 to 15 minutes, and several times during this period Officer Wilson saw defendant come to a window and look briefly outside. ¹

Officer Wilson then went to the front portion of the apartment. The window there was covered by a light curtain or drape, the bottom of which rested upon a table in such a way that an aperture was formed through which a part of the interior of the apartment was visible. ² Looking through this aperture the officer saw a coffee table upon which there was a finger stall or condom which contained some 'lumpy' material and was tied off at one end. On the basis of his experience in narcotics investigations the officer formed the opinion that the finger stall contained heroin packaged for sale in balloons.

The officers thereupon obtained a key from the manager of the apartment building and entered defendant's apartment without knocking or giving any announcement as to their identity or purpose. They seized the condom, which contained 12 balloons of heroin, and arrested defendant. A further search of the apartment disclosed various items of narcotics paraphernalia.

Defendant contends that the entry into his residence was made in violation of section 844 of the Penal Code, ³ that the evidence obtained as a result of that entry was threfore illegally obtained and should not have been admitted against him, and that the judgment must be reversed because such evidence was crucial to his conviction. Although there is some question on the instant record whether defendant at trial objected to the admission of the subject evidence on the ground which he now seeks to advance, any failure on his part to make a proper objection is excused because the trial of the instant case took place prior to our decision in People v. Gastelo (1968) 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706, and the contention is therefore properly before us on this appeal. (People v. De Santiago (1969) 70 Cal.2d ---, ---, 76 Cal.Rptr. 809, 453, P.2d 353.)

The People do not maintain that the officers' conduct prior to entry constituted compliance with section 844. They do urge, however, that their noncompliance was excused because specific factual circumstances existing prior to entry gave rise to a reasonable belief on the part of the officers that unannounced entry was necessary to prevent destruction of evidence. ⁴ (See People v. De Santiago, supra, 70 Cal.2d ---, ---, 76 Cal.Rptr. 809, 453 P.2d 353; People v. Gastelo, supra, 67 Cal.2d 586, 588--589, 63 Cal.Rptr. 10, 432 P.2d 706.) Reference is made to defendant's repeated glances out of the window on his apartment shortly after his arrival, and it is argued that the officers could reasonably have concluded that this conduct was undertaken in order that the contraband might be quickly disposed of as soon as the presence of law enforcement officers was noted.

Because the instant case was tried prior to our Gastelo decision, neither party made any effort to learn from Officer Wilson the basis of his belief that unannounced entry was necessary to prevent the disposal of evidence. (See fn. 4, Ante.) It is possible, of course, that he based that belief upon the specific factual circumstances to which the People have adverted. It is also possible, however, that he based that belief wholly upon his general experience in dealing with narcotics offenders and his knowledge that the kind of evidence sought was subject to rapid disposal. ⁵ Since the record before us is silent on this point, we cannot now determine as a matter of law that the officers' noncompliance with section 844 was excused, and the judgment must therefore be reversed. (Cf. People v. Kanos (1969) 70 A.C. 397, 401--402, 74 Cal.Rptr. 902, 450 P.2d 278.) In the event of retrial the parties may develop the record in order to permit a proper determination of the matter of excuse in light of the Gastelo and De Santiago decisions.

For the guidance of the court in the event of retrial we treat some additional contentions raised by defendant.

Defendant contends that the officers were without reasonable and probable cause to arrest him prior to their entry, and that therefore the arrest and seizure after entry were unlawful. It is pointed out that the record does not show that the informant relied upon by Officer Wilson spoke of his own personal knowledge; it is further urged that the informant was not shown to be reliable. It is not necessary, however, that we determine whether the information provided by the informant was legally sufficient In itself to constitute probable cause to arrest defendant. Certainly that information was sufficient to justify the further investigation which was undertaken by the officers and which culminated in their surveillance of defendant's apartment. That surveillance in turn culminated in Officer Wilson's act of looking into the apartment through the aperture formed by the arrangement of the drapes. What he saw there (i.e., a finger stall tied off at one end containing some 'lumpy' material), in combination with the other facts which his investigation had disclosed, was sufficient--in view of the officer's training and experience in the field of narcotics--to constitute reasonable and probable cause for arrest.

It is contended, however, that the officer's act of looking through the aperture was itself an unreasoanble search and a violation of defendant's right of privacy. We do not agree. It is clear that this case does not involve the difficult questions which arise when the officer's observation is secured from a vantage point which he has gained by trespass. (See People v. Willard (1965) 238 Cal.App.2d 292, 47 Cal.Rptr. 734, and the many cases therein cited and discussed.) For aught that here appears the officers at no time strayed from common areas available to the other tenants of the apartment building as well as to other persons admitted by such tenants or the management and having legitimate business upon the premises. Nor are we here concerned with a situation wherein visual access to defendant's premises was obtained by means of an aperture made or installed for the purpose of observation by law enforcement officers or those cooperating with them. (See People v. Regalado (1964) 224 Cal.App.2d 586, 36 Cal.Rptr. 795.) Rather, the instant case involves observation by an officer from a place where he had a right to be and through an opening which Defendant had provided through his arrangement of drapes covering his window.

In People v. King (1965) 234 Cal.App.2d 423, 44 Cal.Rptr. 500, police officers went to the vicinity of the defendant's residence in response to complaints on the part of neighbors that he 'was keeping late hours and had an odd...