People v. Glasspoole

• Decision Date: 30 May 1975
• Docket Number: Cr. 25854
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kenneth Palmer GLASSPOOLE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 736

121 Cal.Rptr. 736

48 Cal.App.3d 668

The PEOPLE, Plaintiff and Respondent, v. Kenneth Palmer GLASSPOOLE, Defendant and Appellant.

Cr. 25854.

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

May 30, 1975.

Hearing Denied July 23, 1975.

Gerald Klausner, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., and James H. Kline and Owen Lee Kwong, Deputy Attys. Gen., for plaintiff and respondent.

POTTER, Associate Justice.

By information defendant was charged in count I with possession of a controlled substance (L--Amphetamine) for purpose of sale (Health & Saf. Code, § 11351), in count II with possession of a controlled substance (pentobarbital) for purpose of sale (Health & Saf. Code, § 11378), in count III with possession of marijuana for purpose of sale (Health & Saf. Code, § 11359), in count IV with possession of a controlled substance (meprobamate and sodium secobarbital) (Health & Saf. Code, § 11377) and in count V with possession of a controlled substance (Peyote) (Health & Saf. Code, § 11350). Defendant pleaded not guilty.

Defendant's motion pursuant to Penal Code section 995 was denied. His motion pursuant to Penal Code section 1538.5, by stipulation submitted in part on the preliminary hearing transcript, was denied. Defendant's motion to reconsider his 1538.5 motion was also denied.

By stipulation the matter was submitted to the court on the transcript of the preliminary hearing, with each party reserving the right to offer additional evidence. The court found defendant guilty as charged. Criminal proceedings were suspended and defendant was granted probation for a period of three years on terms and conditions set by the court. Defendant was allowed credit for 17 days already served in custody.

Defendant appeals from the judgment. The appeal lies. (Pen.Code, § 1237, subd. (1).)

Facts ¹

On October 21, 1973, Officer Joseph L. Smith, of the City of Long Beach Police Department, Narcotic Detail, received information from an anonymous informant that large quantities of marijuana, cocaine and dangerous drugs were being sold at 814 Main Street in Long Beach.

The following day, at approximately 8:30 p.m., Officers Smith and Scholtz began surveillance of the residence. During the next two hours they observed 'six groups of subjects ranging from two to six people' enter the residence, stay a brief period of time and depart. At about 10:30 p.m., the officers returned to the Long Beach Police Department to meet with other officers. Smith, Scholtz and Officer Darrell T. Gath later returned to the residence to attempt to make a purchase of marijuana from defendant. Smith and Gath, dressed in plain clothes, approached the residence and knocked on the front door. Smith smelled the odor of burning marijuana outside the door. Marilyn Glasspoole, defendant's wife, came to the door and said, 'Who's there?' Smith replied, 'Joe.' She then opened the door and Smith said, 'Is Ken here?' At that time Smith perceived that the smell of marijuana became much stronger. Marilyn Glass-poole again asked, 'Who are you?' and Smith again replied, 'Joe.' She asked, 'What do you want?'; Smith replied, 'I want to talk to Ken.' She asked, 'What's your last name?' As she started to close the door Officer Smith produced his police identification card and advised her that she was under arrest for being in a place where marijuana was being used. Simultaneously Smith put his hand on the door and prevented if from being closed.

As he stepped through the threshold Smith heard male voices and smelled the odor of marijuana which 'appeared' to be coming from a room in the southwest portion of the residence. He went to the room and opened the closed door and observed defendant, sitting on the bed, place an object between his legs. The smell of marijuana was very strong in the bedroom. Smith immediately advised defendant and two other subjects that they were under arrest for being in a place where marijuana was being used. Inside the bedroom Smith observed what appeared to be hashish. He requested defendant to stand up. Defendant complied and Smith observed a glass vial on the bed which he had observed defendant place between his legs. It contained a brownish powdery substance which Smith believed to be a dangerous drug. He recovered the hashish and the vial. After being advised by another officer that he had consent to search the residence, Smith opened a metal box located in the bedroom and observed it to contain numerous blue pills. During a further search of the entire residence several other items of contraband were recovered.

On appeal defendant contends that Officer Smith forcibly entered his residence and his inner bedroom door in violation of Penal Code section 844 and that, therefore, the contraband seized therein was improperly admitted in evidence.

The Police Acted Properly in Entering the Residence

In order to make an arrest a police officer may forcibly enter the door of a house in which is the person to be arrested after (1) identifying himself as an officer; (2) explaining the purpose for which he desired to enter; and (3) demanding entry. (Pen.Code, § 844 ².) The requirements of Penal Code section 844 are met if prior to entry the officers give notice of their presence through knocking or some other means, identify themselves as police officers, and explain the purpose for which admittance is desired. (People v. Buckner, 35 Cal.App.3d 307, 314--315, 111 Cal.Rptr. 32.) Minimal compliance with the elements of section 844 requires 'an effort by the officers prior to entry to communicate to persons inside that they seek to be admitted in order to discharge their duties As law enforcement officers.' (Greven v. Superior Court, Supra, 71 Cal.2d at p. 293, 78 Cal.Rptr. at p. 508,455 P.2d at p. 436.) (Emphasis original.) In the case before us these elements were met. Although initially Officer Smith knocked at defendant's door and identified himself as 'Joe,' before the end of his conversation with Marilyn Glasspoole, and prior to his entry into her residence, he identified himself as a police officer, and placed her under arrest for being in a place where marijuana was being used. The demand for entry was contained in the purpose for which admittance was sought--demand for entry was made to effectuate her arrest. The record reveals that she understood a demand for entry was made by Smith, since she attempted to bar his entry by continuing to close the door. 'If uninvited entry through a door opened by an occupant who is then committing a crime is a 'breaking' within section 844 as the language in some of the cases indicates, the officers should have said before they crossed the threshold that they were about to enter the premises to arrest the (occupant) for being in a place where marijuana was being used.' (People v. Peterson, 9 Cal.App.3d 627, 633, 88 Cal.Rptr. 597, 600; People v. Lee, 20 Cal.App.3d 982, 990, 98 Cal.Rptr. 182.) This is exactly what the officers in the instant case did before they pushed open the door and crossed the threshold.

Moreover, we think that the entry in this case is not subject to the requirements of section 844. Officer Smith had probable cause to arrest Marilyn Glasspoole for being in a place where marijuana was used when the door was opened in response to his knock. Inasmuch as at the time the door opened the officer perceived an occupant actually engaged in the commission of a narcotic offense in his immediate presence, there was not the 'breaking in' contemplated under section 844.

'If uninvited entry through a door opened by an occupant who is then committing a crime is a 'breaking' within section 844 as the language in some of the cases indicates, the officers should have said before they crossed the threshold that they were about to enter the premises to arrest the occupants for being in a place where marijuana was being used. But the court in People v. Boone (1969) 2 Cal.App.3d 66, 82 Cal.Rptr. 398 stated that it did 'not believe section 844 was intended to apply to such a situation'. We think this conclusion is correct. Section 844 should be read in connection with section 841 of the Penal Code which provides: 'The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, Except when the person . . . to be arrested is actually engaged in the commission of . . . an offense . . ..' (Italics added.)'

(People v. Peterson, Supra, 9 Cal.App.3d at p. 633, 88 Cal.Rptr. at p. 600; see also People v. Lee, Supra, 20 Cal.App.3d at pp. 989--990, 98 Cal.Rptr. 182.)

The Police Acted Improperly in Entering the Inner Bedroom

Defendant contends that the evidence in plain view seized from the bedroom should have been suppressed because the police failed to comply with Penal Code section 844 prior to entering the bedroom. ³ We agree.

The lawfulness of a search for additional suspects, incident to arrest, is governed by the standards set forth in People v. Block, 6 Cal.3d 239, 244, 103 Cal.Rptr. 281, 283, 499 P.2d 961, 963:

'As a general rule, the reasonableness of an officer's conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. (Terry v. Ohio, 392 U.S. 1, 21--22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (905--906), involving police 'stop and frisk' procedures.) And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or 'hunches,' but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary. (Id., (392 U.S....