People v. Hamilton

• Decision Date: 21 December 1967
• Docket Number: Cr. 2871
• Citation: 257 Cal.App.2d 296,64 Cal.Rptr. 578
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lee B. HAMILTON and Suzanne Hamilton, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 578

64 Cal.Rptr. 578

257 Cal.App.2d 296

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lee B. HAMILTON and Suzanne Hamilton, Defendants and Appellants.

Cr. 2871.

Court of Appeal, Fourth District, Division 1, California.

Dec. 21, 1967.

Hearing Denied Apr. 10, 1968.

[257 Cal.App.2d 298] David Randall Sherer, San Diego, for appellant.

James Don Keller, Dist. Atty., by John Roche, Deputy Dist. Atty., San Diego, Thomas C. Lynch, Atty. Gen., by Ronald M. George, Deputy Atty. Gen., Los Angeles, for respondent.

OPINION

WHELAN, Associate Justice.

Defendants, who are husband and wife, were found guilty in a jury trial of possession of marijuana. They appeal from orders granting probation and from an order denying their motion for a new trial. The appeal from the order denying such motion in non-appealable, and has been dismissed.

The grounds of appeal from the conviction are insufficiency of the evidence and that marijuana, received in evidence over defendants' objection, was the product of an illegal seizure following an illegal entry into the house in which defendants were arrested and the marijuana was found.

We are of opinion that the latter contention is well taken and that the reception of such evidence as to these defendants compels reversal.

FACTS

The following matters were developed on Voir dire out of the presence of the jury:

At 5:00 a.m. on August 11, 1966, Deputy Sheriff Franklin, with six to eight other officers, went to a residence at 7713 Eads in San Diego to serve arrest warrants on three persons whom he expected to find there: 'Warren Hughey, Carl Vincent Stromberg and Paul Spackman, Jr., none of whom was known to be armed. The action was part of a city-wide effort to make arrests at coordinated times, the arrest having been deferred so as to make them en masse. The warrants had been issued upon indictments of the San Diego County Grand Jury. Defendants were not among those indicted; were not being sought by the police, who had no prior knowledge that defendants were in the house.

Franklin, who had a rough floor plan of the house, approached the front door from the street with some of the officers, others of whom had gone to the rear. The house was quiet and dark. Franklin turned on his flashlight so as to be able to make his way onto the porch and toward the front door; turned the knob of the door, which he found to be unlocked; pushed the door open; shined his flashlight into the living room before entering.

The police had known for some days that there would be arrests at that time and that there would have been time to get a search warrant if one had been desired. The grand jury indictments were returned upon evidence that certain named individuals had sold marijuana at the house. The physical evidence to support the indictments had already been collected and was in custody; Franklin did not desire further evidence for those prior offenses.

Franklin knew from his investigation, and from other information, that narcotics had also been used on the premises. Another deputy sheriff had observed narcotics being used on the premises and had purchased narcotics there, which on four occasions had been turned over to Franklin, including four pounds of marijuana on one occasion within a month before August 11. The deputy had told Franklin that after that purchase there appeared to remain at least 8 to 10 kilos of marijuana inside a large shopping bag in the living room.

Franklin felt on August 11, 1966 that there might be a large quantity of marijuana on the premises because of the number of people who had been reported as going there and conducting business there, both during the daytime and the nighttime, including several who had been charged in the indictment or were known to be associated with persons who were charged, all known to have used, purchased, or sold narcotics on the premises.

From his experience as a narcotics officer, Franklin knew that it was not uncommon for users and sellers of narcotics to attempt to destroy evidence by eating it or flushing it down a toilet; because of the people he believed were on the premises, he 'felt strongly' that narcotics might be destroyed if he were to knock on the door; he expected to find narcotics in ounce quantities, which quantities can be destroyed easily.

After the court had ruled admissible against defendants the evidence obtained by the police in the house, testimony was resumed in open court.

Defendants were lying on the floor of the living room; near them was an ashtray containing two partially smoked marijuana cigarettes and a small brass pipe. Also lying on the floor was their 15-month-old child. A male individual, Brittain, was lying on the davenport, and at his feet was a large dog. In a chair in a corner was another man, Weldon. Everyone appeared to be asleep. Defendant Lee B. Hamilton was wholly unclothed except for the blanket wrapped about him.

In one bedroom Warren Hughey was on the bed; on the bed in a second bedroom was Paul Spackman, Jr., both of whom were placed under arrest pursuant to two of the arrest warrants. Officer Odom of the San Diego police had entered the unlocked back door and found one Baker on a bed in a third bedroom. Marijuana was found in three rooms: in the living room, on a table, near the couch, on the floor, and in a briefcase behind a couch pillow; in one bedroom it was found in the closet and bed; and it was found in the kitchen wastebasket.

CLAIMED ILLEGAL ENTRY

WAS THE ENTRY BY THE SHERIFF'S DEPUTY AND THE POLICE A LEGAL ENTRY AS TO THESE DEFENDANTS?

No.

THE MEANING AND EFFECT OF SECTION 844, PENAL CODE

Section 844, Penal Code, defines the conditions under which an officer in making a lawful arrest 'may break open the door or window of the house in which the person to be arrested is' or is reasonably believed to be. The expressed condition is that the officer first demand entrance and explain the purpose for which admittance is desired.

The section is a codification of the common law on the subject, and leaves the law of arrests where the common law left it.

Similar statutes are section 1531, Penal Code, and section 3109 of Title 18, U.S.C.A., both dealing with the execution of search warrants. Section 3109 of Title 18, U.S.C.A. has been interpreted as embodying the pre-existing common law on that subject. (Leahy v. United States, 272 F.2d 487 (9th Circuit).)

There was a common law privilege of an officer to make forcible entry in order to serve a warrant, which extends to an officer who has probable cause to believe a felony has been or is being committed, if a person guilty thereof is believed reasonably to be within the premises entered. The privilege is defined in Restatement of Torts, sections 204--206:

'b. * * * (The privilege) includes the breaking or destruction of any portion of the outer part of a building * * * or the change in location of any such part, such as the moving or pushing aside of any object placed there as a barrier. (p. 512)

'* * * (

'd. * * * (I)t is usually a prerequisite to the privilege * * * that the actor shall first explain his errand and make demand upon the possessor to permit him to enter and make the arrest * * * Upon refusal of such demand, or if no refusal be made by word or act, upon the expiration of a reasonable time, the privilege to effectuate a forcible entry arises. Such reasonable time would ordinarily be very brief.

'If for any reason an explanation of his errand and demand for admittance by the actor are or reasonably appear to him to be impracticable, as where such explanation and demand would tend to frustrate or to make much more dangerous to life or limb the arrest or other apprehension, the above requirements may be dispensed with. * * * (p. 513)

'b. The word 'break' is * * * used in the same sense in which it is used in defining the crime of burglary. * * *' p. 512)

Within the common law definition of burglary, 'the pushing open of a door entirely closed, but unlocked, is a sufficient breaking to sustain a coviction for breaking and entering or for burglary.' (Winchester v. Becker, 4 Cal.App. 382, 384, 88 P. 296; 13 Am.Jur.2d § 15, p. 330; Cooper v. State, 83 Fla. 34, 90 So. 693, 23 A.L.R. 109; Kent v. State, 84 Ga. 438, 11 S.E. 355; Commonwealth v. Mackey, 171 Ky. 473, 188 S.W. 676; State v. Henderson, 212 Mo. 208, 110 S.W. 1078; State v. Vierck, 23 S.D. 166, 120 N.W. 1098; State v. Lapoint, 87 Vt. 115, 88 A. 523), as is the opening of an unlocked screen door (United States v. Poppitt, 227 F.Supp. 73, 80). (See 'Arrest Without a Warrant' by Wilgus, 22 Mich.L.R. 806.)

If a door is found open by the officer (United States v. Williams, 6 Cir., 351 F.2d 475) or opened to him, although not by the defendant who is intended to be placed under arrest, the officer may enter without warning (People v. Chacon, 223 Cal.App.2d 739, 35 Cal.Rptr. 799; People v. Baranko, 201 Cal.App.2d 189, 20 Cal.Rptr. 139; Hopper v. United States, 9 Cir., 267 F.2d 904), or if the door is opened by the defendant as the result of a ruse, unaccompanied by any exercise of force by the peace officer (People v. Lawrence, 149 Cal.App.2d 435, 444, 308 P.2d 821; People v. Scott, 170 Cal.App.2d 446, 452, 339 P.2d 162; Dickey v. United States, 332 F.2d 773 (9th Circuit); Leahy v. United States, supra, 272 F.2d 487 (9th Circuit); Rex v. Backhouse, 98 Eng.Rep. 533).

A few cases have sought to distinguish between a locked and an unlocked door, in terms of the officer's duty to make an announcement before entering. (Keining ham v. United States, 109 U.S.App.D.C. 272, 287 F.2d 126, 130 (decision 2--1;).)

The distinction is made in People v. Feeley, 179 Cal.App.2d 100, 105, 3 Cal.Rptr. 529, which cannot be considered as authority since none of the narcotics uncovered as a result of the entry and search was offered in evidence.

To use a key to open a locked door without permission of the defendant is a forcible entry. (People v. Arellano,...