People v. Kanos

• Decision Date: 18 February 1969
• Docket Number: Cr. 12580
• Citation: 450 P.2d 278,74 Cal.Rptr. 902,70 Cal.2d 381
• Parties: , 450 P.2d 278 The PEOPLE, Plaintiff and Respondent, v. Toni Antoinette KANOS et al., Defendants and Appellants.
• Court: California Supreme Court

Page 902

74 Cal.Rptr. 902

70 Cal.2d 381, 450 P.2d 278

The PEOPLE, Plaintiff and Respondent, v. Toni Antoinette KANOS et al., Defendants and Appellants.

Cr. 12580.

Supreme Court of California,

In Bank.

Feb. 18, 1969.

Denis Kanos, in pro. per., and Barry Tarlow, Beverly Hills, under appointment by the Supreme Court, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Walter E. Wunderlich, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

Denis Kanos and his wife, Toni Antoinette Kanos, were convicted of possession of heroin and possession of heroin for sale. (Health & Saf.Code, §§ 11500, 11500.5.) He was found to have four prior felony convictions and was sentenced to prison. His wife's motion for new trial was denied, and narcotic addiction commitment proceedings were initiated. He has appealed from the judgment, and she from the order denying her motion for new trial. (Pen.Code, § 1237, subds. 1, 2).

Over a two-to three-month period Los Angeles police officers received information from three informants that Denis Kanos was dealing in heroin. The officers had seen him driving a Thunderbird automobile but did not know his exact address. In connection with the arrest of Al Marrato, one of Kanos' dealers, the officers obtained Kanos' telephone number and through the telephone company learned his address. They also discovered that Kanos was a parole violator and that a warrant for his arrest had been outstanding for a year. His parole officer who had not seen Kanos in over a year said that Kanos might be armed and that on a prior occasion he had bought, sold, possessed and attempted to use guns. The officers were also told by an informant that Kanos had recently sold him a stolen revolver. The officers then spoke to Captain Baucum of the Inglewood Police Department who said he knew Kanos, knew approximately where Kanos lived, and believed that Kanos might be armed. He had last seen Kanos 8 to 10 years earlier, and apparently his information that Kanos might be armed was at least 8 years old.

The Los Angeles police officers, the parole officer, and Captain Baucum went to the building where Kanos reportedly lived, saw a Thunderbird parked outside the building, and obtained an identification of Kanos by the apartment manager from a photograph. The officers went to Kanos' apartment and heard voices inside. They did not knock or ring but kicked in the door and entered with drawn guns and found large amounts of narcotics. Defendants were arrested.

Defense counsel moved to exclude from evidence the narcotics found in the apartment and certain other evidence on the ground that the officers in entering the apartment acted in violation of section 844 of the Penal Code. ¹ The instant case was tried before our decision in People v. Rosales, 68 Cal.2d 299, 66 Cal.Rptr. 1, 437 P.2d 489. The trial judge expressly denied the motion solely on the ground that, since Kanos was then on parole, the officer was entitled to burst in on the premises without compliance with section 844.

Since the search was made without a warrant the burden rested rested on the prosecution to show proper justification. (People v. Henry, 65 Cal.2d 842, 845, 56 Cal.Rptr. 485, 423 P.2d 557.) An unexcused failure to comply with section 844 of the Penal Code vitiates the following arrest and searches incident thereto and requires exclusion of evidence obtained in such searches. (People v. Rosales, supra, 68 Cal.2d 299, 302 et seq., 66 Cal.Rptr. 1, 437 P.2d 489.)

In People v. Rosales, supra, 68 Cal.2d 299, 303--304, 66 Cal.Rptr. 1, 4, 437 P.2d 489, 492, we held: 'The fact that defendant was a parole violator deemed an 'escape and fugitive from justice' (Pen.Code, § 3064) did not excuse noncompliance with section 844, for the Legislature has expressly provided that an order to retake a parolee must be executed 'in like manner as ordinary criminal process' (Pen.Code, § 3061). Even an escape from custody, however, does not alone justify entrance into a house to make an arrest without explanation of purpose and demand for admittance. (Pen.Code, § 855; see also Pen.Code, § 1531; People v. Arellano (1966) 239 Cal.App.2d 389, 390--392, 48 Cal.Rptr. 686; People v. Stephens (1967) 249 Cal.App.2d 113, 114--117, 57 Cal.Rptr. 66.)' It is thus clear that the failure to comply with section 844 in the instant case may not be excused on the ground that Kanos was a parole violator, and the trial court was in error in so ruling.

The Attorney General seeks to excuse compliance with the requirements of section 844 on the basis of the rules that compliance is excused where the officers have a reasonable belief that evidence is likely to be destroyed while the requisite demand is being made and where the peril to arresting officers will be increased by compliance. (People v. Rosales, supra, 68 Cal.2d 299, 305, 66 Cal.Rptr. 1, 437 P.2d 489; People v. Carrillo, 64 Cal.2d 387, 391, 50 Cal.Rptr. 185, 412 P.2d 377.) Even if we assume that the evidence may be sufficient to excuse compliance with section 844 on the basis of either or both of these rules, it is clear that the trial court sought to excuse compliance on the ground that Kanos was a parole violator and did not determine that the officers had a reasonable belief that evidence would be destroyed while the requisite demand was made or that their peril would be increased by compliance. In the absence of such express or implied determinations by the trial court, we cannot hold that as a matter of law compliance with section 844 was excused. The appellants were entitled to a factual determination on this issue. (Cf. People v. Sesslin, 68 A.C. 431, 441, 67 Cal.Rptr. 409, 439 P.2d 321; People v. Henry, supra, 65 Cal.2d 842, 846, 56 Cal.Rptr. 485, 423 P.2d 557.) Although the officers had some information to the effect that Kanos might be armed, the information from the parole officer was about a year old and the information from Captain Baucum, if not based on the parole officer's information, was seemingly more than eight years old.

It is undisputed that the officers failed to comply with section 844, and on the record before us we cannot conclude as a matter of law that noncompliance was excusable. Without the evidence of the heroin obtained in the Kanos' apartment, the record is insufficient to sustain the judgment.

Defendants next urge that the arrest of Marrato was unlawful, that the telephone number secured as incident to that arrest was unlawfully obtained evidence, that without the telephone number the police officers would not have located them, and that therefore the evidence of their arrest and that uncovered by the search of their apartment was fruit of the unlawful search of Marrato. Even if it be assumed that the arrest of Marrato was unlawful, ² this fact would not require exclusion of the evidence obtained by the search of his apartment.

Evidence will not be excluded merely because it would not have been obtained but for an illegal search if the connection between such evidence and the illegal search has "become so attenuated as to dissipate the taint." If, however, the connection is not so attenuated and the evidence has been "come at by exploitation of that illegality," then it is excludable. (Wong Sun v. United States, 371 U.S. 471, 487, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441; People v. Bilderbach, 62 Cal.2d 757, 766, 44 Cal.Rptr. 313, 401 P.2d 921.)

In the instant case fact that Kanos was wanted for parole violation was not obtained through the arrest of Marrato. Although the telephone number was obtained in connection with the arrest, this information related only to the address of Kanos and was not incriminating in itself. Captain Baucum knew approximately where Kanos lived, and under all the circumstances there was not a sufficiently direct connection between the telephone number obtained from Marrato and the search of Kanos' apartment.

Inasmuch as the problem may arise on a retrial, the question of what penalty is to be imposed upon Kanos, if he is convicted, should be considered. He was charged with three prior narcotic convictions, and the trial court found them to be true. On October 14, 1957, defendant was convicted of two counts of violation of section 11500 of the Health and Safety Code. He appealed, and while on bail committed another violation for which he was convicted on August 1, 1958. He then dismissed his appeal, and was sentenced to serve concurrent sentences on all three convictions.

Under section 11500.5 of the Health and Safety Code a defendant who has a prior narcotic 'conviction' which is a felony shall be imprisoned for a minimum of 10 years and not eligible for parole until he has served 6 years. If he has two such prior convictions the minimum term is 15 years and there is no eligibility for parole until he has served 15 years.

Kanos' position is that since he served concurrent sentences he has only one prior conviction within the section. He points to cases which have involved the habitual criminal statute (Pen.Code, § 644), and hold that before a conviction may qualify as a prior, a separate term of imprisonment must have been served therefor.

The difficulty with Kanos' argument is that section 11500.5 of the Health and Safety Code refers to persons convicted whereas section 644 of the Penal Code refers to persons convicted upon 'charges separately brought and tried' and who have served ...