People v. Guerra

• Decision Date: 24 November 1971
• Docket Number: Cr. 19844,19884
• Citation: 98 Cal.Rptr. 627,21 Cal.App.3d 534
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John GUERRA, Defendant and Appellant. The PEOPLE of the State of California, Plaintiff and Respondent, v. Ernesto C. ALCALA, Defendant and Appellant.

Page 627

98 Cal.Rptr. 627

21 Cal.App.3d 534

The PEOPLE of the State of California, Plaintiff and Respondent, v. John GUERRA, Defendant and Appellant.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ernesto C. ALCALA, Defendant and Appellant.

Cr. 19844, 19884.

Court of Appeal, Second District, Division 5, California.

Nov. 24, 1971.

Hearing Denied Jan. 19, 1972.

[21 Cal.App.3d 535] Howard E. Beckler, Hollywood, for defendant and appellant John guerra.

Don W. Goldstein, Marina Del Rey, under appointment by Court of Appeal, for defendant and appellant Ernesto C. Alcala.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., William K. McCallister and Ronald S. Marks, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

Defendant Alcala appeals from a conviction for possession of heroin (Health & Saf. Code, § 11500). Defendant Guerra appeals from convictions of receiving stolen property (Pen. Code, § 496) ¹ and possession of a restricted dangerous drug (Health & Saf. Code, § 11910.) There is no need to detail the procedural facts at this point. To the extent that they are relevant to an issue on appeal, they will be set forth in connection with our discussion of the issue.

FACTS

Since the most important question on this appeal is the legality of police conduct which resulted in the seizure of certain physical evidence, we set forth the facts preceding and surrounding that seizure.

Officer Wanek of the Los Angeles Police Department had been investigating Guerra had a 'stash pad,' and that several several people for possession of heroin who told him that they had purchased it from Guerra. He had information that Guerra had 'stash pad,' and that several people would go there at late hours to cut up heroin. He was also informed that Guerra was on parole for possession of marijuana. Wanek knew Guerra's car and its license number. On one occasion after he had arrested a person who was in possession of heroin after leaving a location where Guerra was, Wanek had obtained a search warrant. Apparently the search was fruitless.

Between 1:00 and 2:00 A.M., on January 26, 1970, Wanek received a phone call from Sergeant Moore informing him that somebody was in Guerra's apartment. Wanek and Lieutenant Sherwood went to an apartment house at 2202 Victory Boulevard. There they met Sergeant Moore. They went to apartment C through a common hall, having received the manager's permission to do so. Wanek placed his ears to the door in the area of the hinges and possibly at the area of the peep hole and heard a female voice say: 'I can't hit. Would you fix me?' A male voice answered 'I'll do it.' Another male voice asked 'How much stuff is left?' He received an answer, again by male voice: 'I'm not sure how many we sold.' Wanek also heard the word 'quarters' used at least three or four times. The officer, whose expertise in narcotics and drug technology and language was stipulated to, then formed the opinion that heroin was being used by one person inside the premises. He had also heard a snapping sound, similar to cards being shuffled, but not quite the same. After discussing the sound with another officer, he came to the conclusion that it was caused by someone chopping heroin and mixing it with milk sugar. Wanek then knocked and announced: 'Police officer. Narcotics investigation. Open the door.' A male voice inside said: 'It's the cops. Get rid of the stuff.' This was followed by a loud banging noise and footsteps.

Before arriving at the premises Wanek had heard of a shooting incident at Guerra's home--he did not live at the apartment in question--in which Guerra was either shot or had shot someone else. After that incident several loaded weapons had been taken from the home.

The officers then broke the door open. Inside the apartment Alcala was seen running toward Wanek. As the door came open Alcala turned away from Wanek and threw a large bundle of currency that he had in his right hand toward a chair. Alcala was arrested. A hypodermic syringe, a spoon and three balloons ² were seen. Wanek then entered a bedroom where Guerra was found in bed with a lady. Guerra was arrested. When an officer handed him his trousers a plastic sack containing red capsules, later identified as seconal, was taken from a pocket.

Guerra was then asked for permission to search the premises. After being allowed to consult with his attorney by phone, such permission was granted. The search revealed Benzedrine, rifles, handguns, milk sugar, one hundred empty balloons and narcotics paraphernalia of various kinds. Three of the rifles had been stolen from their owners during the preceding year.

On appeal Guerra makes but one contention: that by eavesdropping at the apartment door the police violated his constitutional right to privacy. (Katz v. United States, 389 U.S. 347, 351--353, 88 S.Ct. 507, 19 L.Ed.2d 576.)

Alcala naturally raises the same issue. In addition he claims that the evidence does not support his conviction and that his constitutional rights were violated by the manner in which his case was submitted to the trial court.

DISCUSSION

Neither counsel nor we have found a post-Katz case which is factually precisely in point: that is to say, a case where it clearly appears that the investigating officers could not understand what was being said inside of a home or an apartment, without going to the lengths of eavesdropping testified to by Officer Wanek in this case. This, while United States v. Llanes, 2d Cir., 398 F.2d 880 contains broad language which would remove any eavesdropping that is not mechanically or electronically aided from the protective ambit of Katz, the facts of the case do not necessitate its sweeping language. There, the voices that were heard were loud enough to be understood by anyone present outside the door without the need of putting an ear against it.

Lacking authority precisely in point, we look for analogy. We find the cases which permit the police to peek through small openings provided by imperfectly drawn curtains or blinds, to be persuasive. The leading case is, of course, People v. Berutko, 71 Cal.2d 84, 91, 77 Cal.Rptr. 217, 453 P.2d 721, where the officer, without committing trespass, made certain observations through a window. What made it possible for him to make these observations was the fact that the bottom of a drape rested against the top of a table, which apparently caused the drape to bulge.

To the same effect are cases such as People v. Cooper, 17 Cal.App.3d 1112, 95 Cal.Rptr. 471 (view of apartment gained from fire escape); People v. Galfund, 267 Cal.App.2d, 317, 319, 72 Cal.Rptr. 917 (imperfectly closed venetian blind); and People v. King, 234 Cal.App.2d 423, 426, 44 Cal.Rptr. 500 (opening of approximately one and one-half to two inches.)

We are aware that in People v. Foster, 19 Cal.App.3d 649, 97 Cal.Rptr. 94 the court assumed for the sake of argument that listening at an apartment door might be constitutionally improper. It was, however, just that: an assumption for the sake of argument.

While we have said that none of the authorities dealing with conversations that could be heard outside of an apartment without putting one's ears against the door were in point, this much is true: if an individual desires that his speech remains private, he can easily assure himself of privacy by whispering, so that even a person in Wanek's position cannot hear him. Since it does seem established by respectable authority that speech which is loud enough to be understood by anyone outside is not protected, it would seem rather arbitrary to draw a constitutional line somewhere between the whisper and the shout.

If we are right to far, this disposes of Guerra's appeal. We now turn to the two additional contentions made by Alcala.

Alcala claims that the submission on the transcript was but a 'slow plea of guilty' and that the requirements of In re Mosley, 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473, were not met. In particular he claims that he was not advised of the 'permissible range' of punishment.

Preliminarily it...