People v. Kanos

• Decision Date: 25 January 1971
• Docket Number: Cr. 17441
• Citation: 14 Cal.App.3d 642,92 Cal.Rptr. 614
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Steve KANOS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 614

92 Cal.Rptr. 614

14 Cal.App.3d 642

PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Steve KANOS, Defendant and Appellant.

Cr. 17441.

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

Jan. 25, 1971.

Hearing Denied March 26, 1971.

Barry Tarlow, Los Angeles, for defendant-appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Lawrence P. Scherb, II, Deputy Atty. Gen., for plaintiff-respondent.

REPPY, Associate Justice.

This is an appeal from a conviction for possession of heroin in violation of Health and Safety Code section 11500.

Defendant-appellant Phillip S. Kanos was released on parole after a conviction of narcotics possession. He first reported to his parole officer, Marvin E. Holmes, on March 1, 1967. At that time defendant gave his address as 541 1/2 Elm Street, Inglewood, California. Holmes saw defendant on May 31, and June 23, of 1967 at that address, and on March 3, 1967, at his place of employment. On July 14, 1967, defendant's parole was suspended because Holmes had been unable to contact him, and from that date defendant was a fugitive. However, on August 1, 1967, Holmes did receive one communication from defendant, a written report reflecting that defendant's address was still 541 1/2 Elm Street. Defendant was not reinstated. Rather, Holmes made futile efforts to locate defendant, including several visits to the Elm Street address. He was told by defendant's wife, whom he found in residence, that defendant no longer lived there.

Prior to the events to be related Waldo H. Damerell, an agent for the Special Services Unit of the State Department of Corrections, had the function of investigating and apprehending parole violators. He had received information from defendant's parole officer that defendant on occasion stayed at the Elm Street location, might be armed, and was suspected of dealing in heroin in the Los Angeles area. He had also received information from the Los Angeles Police Department that defendant was staying at that location at that time and was suspected of dealing in heroin in the Los Angeles area.

On March 21, 1968, Sergeant Lynn Leeds of the Los Angeles Police Department had received information from a confidential informant, characterized as reliable, that defendant was again living at 541 1/2 Elm Street and dealing in narcotics from there; that he would make trips from there to the city to make deliveries, and that each morning at approximately 7:30 he would take his wife to work. It is readily inferable that he passed this on to the parole officers.

On March 21 Damerell's accompanying partner, Special Parole Agent Chris Brett, had received information from the Los Angeles Police Department that a reliable source had told them that defendant would be at the 541 1/2 Elm Street address on March 22.

On March 22, 1968, at Damerell's request, Leeds and other officers from the Los Angeles Police Department accompanied Damerell and Brett to pick up defendant. At approximately 7:30 a.m. they went to the area of 541 1/2 Elm Street and observed defendant with his wife and child walk out of the driveway and cross the lawn in front of the residence at that address and get into an automobile. The automobile was one of the vehicles that Leeds had been told that defendant used. Defendant was immediately taken into custody for violation of parole. As defendant attempted to hand a chain of keys to his wife, Sergeant Leeds pulled defendant from the driver's seat of the vehicle, patted him down for weapons, handcuffed him and took possession of the keys. There were two car keys and a house key. Damerell found in defendant's wallet a driver's license bearing defendant's picture but with a name other than defendant's and an address other than 541 1/2 Elm Street. Damerell advised defendant that they were going to search his premises. The officers first searched, with the consent of its occupant (defendant's daughter), a house on the front part of the lot. They left when defendant's wife said, 'This isn't our house.' They then proceeded to a garage with apartments on the upper floor on the rear of the lot. As Leeds put the house key in the door of the first apartment that he came to, defendant's wife informed him that that was not the right door and that they lived in the next unit. As Sergeant Leeds approached the next door, he asked defendant's wife if anyone was inside. She replied, 'No.' Leeds opened the door with the key without knocking. A search of the premises ensued. Leeds found a box in a storage closet which contained a scale, milk sugar, and a white crystalline substance. Damerell found an envelope containing a plastic container which held a white powdery substance in the inside pocket of a man's sport coat located in the hallway closet. The white powdery substance found in the coat was subsequently analyzed and found to be heroin.

Defendant and his brother testified that from the end of August 1967, until the pick up, defendant had lived continuously with his mother at 614 Nectarine, Inglewood, California, four or five blocks from the Elm Street residence. Defendant testified that he had last seen his wife approximately three months prior to his apprehension; that he had taken all of his clothing to the Nectarine Street residence; that he was not aware of any men's clothing at the Elm Street residence, and that the keys were in his wife's possession at the time of the arrest.

Defendant's motion under Penal Code section 1538.5 was denied as to the claim of illegal search and seizure.

Defendant contends on appeal that (1) the heroin and related items seized during the search were erroneously admitted into evidence because the search violated the Fourth and Fourteenth Amendments of the United States Constitution; (2) evidence seized in violation of his wife's constitutional rights was erroneously admitted against him; (3) the police officers failed to comply with Penal Code section 844 before entering the residence, and (4) the evidence is insufficient as a matter of law to sustain the conviction.

I. The Search Was Constitutional as to Defendant

It has frequently been held that a parolee's supervising agent does not need a search warrant, consent of the parolee, or probable cause in order to search the parolee's residence. (People v. Limon, 255 Cal.App.2d 519, 522, 63 Cal.Rptr. 91; People v. Thompson, 252 Cal.App.2d 76, 85, 60 Cal.Rptr. 203, cert. den. 392 U.S. 930, 88 S.Ct. 2276, 20 L.Ed.2d 1388; People v. Quilon, 245 Cal.App.2d 624, 627, 54 Cal.Rptr. 294; People v. Hernandez, 229 Cal.App.2d 143, 150--151, 40 Cal.Rptr. 100.) Other courts have stated that a parolee's supervisor may search his premises if there is reasonable cause to believe that the parole has been breached. (People v. Mackie, 265 Cal.App.2d 662, 664, 71 Cal.Rptr. 350; People v. Robarge, 151 Cal.App.2d 660, 665, 312 P.2d 70; People v. Triche, 148 Cal.App.2d 198, 202, 306 P.2d 616; People v. Denne, 141 Cal.App.2d 499, 510, 297 P.2d 451.) A parole officer's apprehension of his prisoner for suspected violation of parole is not an 'arrest' in the ordinary sense, but a mere transfer of the subject from constructive custody into actual physical custody; standards governing the arrest and search of citizens possessed of full civil rights, therefore, are not applicable to the act of taking physical custody of a parolee. (People v. Villareal, 262 Cal.App.2d 438, 447, 68 Cal.Rptr. 610; People v. Quilon, Supra, 245 Cal.App.2d 624, 627, 54 Cal.Rptr. 294; People v. Denne, Supra, 141 Cal.App.2d at p. 510, 297 P.2d 451.)

The rationale for the restriction of Fourth Amendment guaranties as to parolees is as follows: since a parolee is in constructive custody '(f)or the purpose of maintaining the restraints and social safeguards accompanying the parolee's status, the authorities may subject him, his home and his effects to such constant or occasional inspection and search as may seem advisable to them. Neither the Fourth Amendment nor the parallel guaranty in article I, section 19, of the California Constitution blocks that scrutiny. He may not assert these guaranties against the correctional authorities who supervise him on parole (citation omitted). If this * * * strips him of constitutional protection against invasions of privacy by his parole officer, the answer is that he has at least as much protection as he had within the prison walls. He did not possess this guaranty in prison and it was not restored to him when the gates of parole opened.' (People v. Hernandez, Supra, 229 Cal.App.2d 143, 150, 40 Cal.Rptr. 100, 104.)

The search of the apartment as that of defendant was permissible. Defendant had been declared a parole violator because he had not maintained contact with the Department of Corrections. The parole agents suspected that he was armed and dealing in narcotics. Under these circumstances they were justified in searching his residence to determine why he had not maintained contact and if he had violated his parole in other ways. The agents reasonably believed that 541 1/2 Elm Street was defendant's residence. This was the last and only residence which he had reported. The parole office had received information that he was living there and customarily took his wife to work at 7:30 a.m. and would be doing so on the morning of the arrest. This report was corroborated as the agents and officers at that hour observed defendant, his wife, and child walk out of the driveway leading to the apartment and enter an automobile considered to be one defendant used. Sergeant Leeds took from defendant a key chain holding keys to the automobile and to the apartment.

The legality of the search is not affected by the fact that it was conducted by special agents Damerell and Brett rather than by defendant's own parole officer. The function of these agents was to investigate and apprehend parole violators; they were acting in line with department...