People v. Cooper

• Decision Date: 03 June 1971
• Docket Number: Cr. 18797
• Citation: 95 Cal.Rptr. 471,17 Cal.App.3d 1112
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Tony Oral COOPER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 471

95 Cal.Rptr. 471

17 Cal.App.3d 1112

The PEOPLE of the State of California, Plaintiff and Respondent, v. Tony Oral COOPER, Defendant and Appellant.

Cr. 18797.

Court of Appeal, Second District, Division 2, California.

June 3, 1971.

Richard S. Buckley, Public Defender, James L. McCormick, James B. Jennings and Harry W. Brainard, Deputy Public Defenders, for defendant-appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Douglas B. Noble, Deputy Atty. Gen., for plaintiff-respondent.

HERNDON, Associate Justice.

Appellant was convicted of possession of restricted and dangerous drugs in violation of Health and Safety Code section 11910 after the cause had been submitted to the trial court upon the transcript of the preliminary hearing. He appeals from the order granting him probation for three years upon the condition that he serve a jail term of six months. The order is deemed to be an appealable final judgment under Penal Code section 1237.

Appellant's Contentions

To show the relevance of the evidence which we are about to summarize, we first indicate the nature of appellant's contentions which are as follows: (1) a police officer's observations made from a third floor fire escape of activities in appellant's bathroom constituted a violation of appellant's constitutionally protected right of privacy; (2) the information in the possession of the arresting officers did not provide probable cause for appellant's arrest; (3) the entry and search of appellant's apartment were not contemporaneous with a lawful arrest and therefore the entry was made in violation of Penal Code section 844.

Our review has led to the conclusion that appellant's contentions are mistaken and based upon misconceptions of the controlling law. We find ourselves in agreement with the trial court's findings that the actions of the arresting officers in this case were reasonable and lawful in all respects.

Summary of the Evidence

This summary is substantially taken from appellant's opening brief which accurately conforms with the record. Shortly before 3 a.m. on August 30, 1969, Officer Purington of the Los Angeles Police Department and his fellow officer while on patrol duty received a report of a robbery that had just occurred at the southeast corner of Western and Exposition in Los Angeles. The report provided a description of one of the robbers. The officers proceeded immediately to the indicated location which was only a few blocks distant.

On arriving at the location Officer Purington talked to one Paul Glen, the victim of the robbery. Glen gave the officers a detailed description of one of the persons involved in the commission of the robbery and stated that the robber who had used a gun in committing the crime had run from the scene into an apartment house two blocks away at 1608 West 38th Place. Officer Purington radioed a report including a description of one robber.

Very shortly thereafter Officers Duffy and Barnes arrived on the scene. Purington related to them the information he had received including the description of the robber as given by the victim. Officer Duffy talked to the robbery victim who again described the robber and repeated the statements he had made to Officer Purington. Duffy thereupon commented, 'You know, I think I recognize the suspect.' At the trial Duffy explained that he immediately suspected appellant because his appearance and physical characteristics were 'strikingly similar' to those of the robber described by the victim and because he knew appellant lived in the apartment house into which, according to the victim, the robber had run. Duffy further explained that he had arrested appellant on three prior occasions, the last such arrest having been made only two days previously.

Following their discussion with the victim the four officers proceeded to the apartment building on 38th Place arriving there at 3 a.m. which was about 15 or 20 minutes after Officer Purington had first talked to the victim. As Officer Duffy knew, appellant's apartment was located on the third floor. According to agreed plan Officer Purington went to the rear of the building while the other officers went to the front door. Purington entered the building and, using an inside stairway, went to the third floor and walked down a hallway to a point adjacent to appellant's apartment where he found an open window which looked out upon a fire escape.

Officer Purington testified that by reason of the information given by the victim that the robber had used a gun, he went out on the fire escape where he could look through a window into appellant's apartment. His purpose, he said, was 'to see if anybody had a gun and if they had any opportunity to use it I could warn the officers at the front.'

From the vantage point of the fire escape and looking through a bathroom window Officer Purington observed appellant and two other persons, one of whom was rummaging through a brown paper bag. Appellant was 'rubbing the inner portion of his left arm, the inner elbow.' At the same moment Officer Purington heard Officer Duffy knock at the front door and announce his presence including the statement 'Police officers.' Appellant immediately rolled down his sleeve and put on his coat and the other man put the paper bag in the commode and flushed it.

On the basis of his police training and experience Officer Purington concluded that appellant had either just injected or was about to inject a narcotic or dangerous drug and that the other individual was disposing of narcotics by flushing them down the drain. Purington immediately went to the front door and told Officer Duffy that he believed evidence was being destroyed. Upon receiving this report from Purington, Officer Duffy again knocked on the door. After waiting 20 or 30 seconds and receiving no response, the officers forcibly opened the apartment door and entered. Officer Purington walked toward the bathroom where he found the man with the paper bag still standing by the commode and flushing it with appellant standing nearby. Officer Purington pushed the man away, raised the lid of the commode and removed a bag containing approximately 400 red capsules and 20 white double-scored tablets. He concluded that these were dangerous drugs. He placed appellant and the other occupants present under arrest.

Officer Duffy testified that upon arriving at the front door of appellant's apartment, he knocked and announced, 'Police officer. I want to talk to Tony.' From the inside a female voice responded, 'Wait a minute.' At this juncture Officer Purington came around and said, 'Cooper is in the bathroom. He is fixing. They are dumping narcotics.'

Purington then returned to the rear window and Officer Duffy knocked on the door again, demanded admittance, stated that he was a police officer and that 'either open the door or we are going to have to force it.' There was no response to this demand. As Duffy testified: 'I could hear movement inside the apartment but no one answered the door. At this time Officer Purington again came around and we forced the door open.' Asked why the door was forced open, the officer replied, 'Because it was my understanding that the residents of the apartment or people inside were destroying evidence.'

It was stipulated that an expert forensic chemist had examined the items seized by Officer Purington and found that the 400 capsules contained secobarbitol and that the 20 white tablets contained amphetamine.

Officer Purington's Observations From The Fire Escape Constituted No Unreasonable Invasion of Appellant's Privacy.

It is unquestionable, of course, that the officers in this case were duty bound to investigate the reported robbery which had occurred only a few minutes before the report was received. The victim had told them that one of the robbers was armed and had run into an apartment house at 1608 West 38th Place, two blocks distant. The victim gave the officers a description of this man which precisely matched that of appellant Tony Cooper who, as Officer Duffy was aware, resided at 1608 West 38th Place. Duffy had arrested appellant for robbery only two days previously. Under these circumstances it is clear that the officers had good and sufficient cause to suspect that appellant was the armed robber and to arrest him. In other words, this combination of facts and circumstances was more than sufficient to 'lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that (appellant was) guilty of a crime.' (People v. Terry, 2 Cal.3d 362, 393, 85 Cal.Rptr. 409, 428, 466 P.2d 961, 980.)

The facts here largely parallel those in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, where, in upholding the arrest and search there in question, the court declared that the circumstances and exigencies made that course imperative. 'The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.' (387 U.S. at pp. 298--299, 87 S.Ct. at p. 1646.)

In view of the robbery victim's report that one of the robbers was armed, the reasonableness of Officer Purington's apprehension of serious danger to himself and his fellow officers is self-evident. It follows...