People v. Keogh

• Decision Date: 08 April 1975
• Docket Number: Cr. 24253
• Citation: 46 Cal.App.3d 919,120 Cal.Rptr. 817
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Leroy KEOGH, Defendant and Appellant.

Page 817

120 Cal.Rptr. 817

46 Cal.App.3d 919

The PEOPLE, Plaintiff and Respondent, v. Michael Leroy KEOGH, Defendant and Appellant.

Cr. 24253.

Court of Appeal, Second District, Division 4, California.

April 8, 1975.

As Modified April 24, 1975.

Hearing Denied June 4, 1975.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., norman H. Sokolow and Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, Acting Presiding Justice.

By information defendant Keogh was charged with burglary in violation of Penal Code section 459. He was then charged in a second information with four counts of forgery in violation of Penal Code section 470. The two informations were consolidated for trial, the burglary count as count I, and the four forgery counts as II, III, IV and V. The consolidated information was subsequently amended to add, as count VI, the crime of receiving stolen property in violation of Penal Code section 496.

Defendant entered a 'not guilty' plea to all counts. His motion to dismiss (Pen.Code, § 995) was heard and denied. His motion to suppress evidence (Pen.Code, § 1538.5) was heard and denied, reopened, granted in part and denied in part.

Pursuant to a plea bargain, defendant withdrew his 'not guilty' pleas to counts II and VI. He pled guilty to those counts, but moved to set aside the guilty pleas. The motion was granted. Trial was by jury. Defendant was found not guilty of burglary as charged in count I; guilty of forgery, as charged in counts II through V and guilty of receiving stolen property as charged in count VI. Defendant's motion for a new trial was denied, as was probation. The trial court judge sentenced defendant to state prison. The sentences on counts II, III, IV and V were ordered to run consecutively to each other. The sentence on count VI was ordered to run concurrently with those imposed on counts II through V. Defendant's petition for a writ of mandate was denied. This appeal is from the judgment of conviction.

Briefly stated, the evidence adduced below shows that in late December 1972 the Downey Heating and Air Conditioning Company was broken into; a check-writing machine was taken as were blank company payroll checks consecutively numbered from 2200 to 3100. The company's owner, Koehler, testified that defendant had been employed by him four or five years before.

The People produced four checks bearing the name of the Downey company and numbers in the missing sequence. The amounts payable, which had been written by a check-writing machine, were $132.03; $127.47; $96.22; and $113.82. The checks were made payable to defendant Keogh, and the drawer of each check was purportedly the owner of Downey Heating, Russell Koehler. The checks had been endorsed by defendant and cashed at several different stores, using, in at least three instances, a temporary driver's license bearing his name as identification. Koehler testified that he had not executed the four checks. Defendant's handwriting exemplar was admitted into evidence. Expert testimony was introduced to the effect that defendant's handwriting was the same as that of the purported drawer.

The People also introduced into evidence two similarly executed checks, also showing numbers in the missing sequence, which had been found in defendant's wallet at the time of his arrest. In addition, a bundle of the missing company checks were admitted into evidence; they had been found by arresting officers in defendant's apartment. Defendant, aged 32 at trial, was addicted to heroin and the record strongly supports the conclusion that he undertook the criminal activity described herein to support his addiction.

On this appeal defendant first contends that the trial court judge who heard the section 1538.5 motion (a different judge than the one who presided at trial) erred in refusing to suppress certain evidence obtained by the police officers who arrested defendant. It is claimed that the arresting officers failed to comply with Penal Code section 844 and section 1531 in gaining entry to defendant's apartment, and that the evidence they seized there (the bundle of blank checks and the two checks in defendant's wallet) was inadmissible pursuant to the Fourth Amendment (U.S. Constitution) guarantee against unreasonable searches and seizures.

Much evidence was heard below concerning the entry, at two preliminary hearings, hearings on the section 1538.5 motion, and at trial. A review of the section 1538.5 evidence shows that officer Pearce, an experienced narcotics officer assigned to the Long Beach Narcotics Bureau, was in possession of an arrest warrant for defendant, who had been charged with the misdemeanor violation of Health and Safety Code section 11721 (use of narcotics). On January 11, 1973, Pearce and his partner, Hill, neither of whom was in uniform, went to Apartment J, 4426 Village Road, Long Beach, in search of defendant. They knocked on the door of Apartment J, but received no response. Pearce and Hill found the manager of the apartment house, a Mr. Risener. Officer Hill testified that he and Pearce told Risener they had a warrant for Michael Keogh. Risener stated that the tenant in Apartment J called himself Thompson, but from the description of 'Thompson' the officers concluded he and Keogh were one and the same.

According to the officers, Risener volunteered to go to Apartment J. With the officers standing behind him, Risener knocked on the apartment door but received no response. He then used a key to open to door about half way. Pearce looked through the door and observed defendant lying in bed, the foot of which was about eight or ten feet from the door. Defendant raised up at the intrusion, saying 'Yes?' to which Pearce, still in the hallway, responded 'Mr. Keogh?' Pearce and Hill then entered the apartment. Pearce testified that as he crossed the threshhold he produced his badge and ID in his left hand and stated, 'Police Officer.' He also testified that 'I didn't announce I was a police officer while standing outside of the apartment in the hallway.' He identified himself when I had started moving in.' When asked if he was inside, Pearce stated, 'At least in part, yes.'

Once inside, Pearce advised defendant he was under arrest; by this time defendant was out of bed. Pearce and Hill observed a narcotics kit lying on the floor. Pearce testified that he had formed no opinion at this time as to whether defendant was under the influence of narcotics. Defendant was not advised at this time of his constitutional rights with respect to custodial interrogation. ¹ He sat in a chair and asked for a cigarette. Pearce testified that he asked defendant for permission to search, and defendant replied, 'I don't have much choice, do I?' Pearce testified that he had explained to defendant in some detail that he did have a choice but that defendant told him he could search. During the search the bundle of blank Downey Heating checks were discovered as well as the two completed checks in defendant's wallet.

Penal Code section 844 provides, in pertinent part, that

'To make an arrest . . . a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired. . . .'

Penal Code section 1531 provides that:

'The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a warrant, if, after notice of his authority and purpose, he is refused admittance.'

These statutes, derived from the common law, have the common purpose of minimizing the possibility of violent confrontations between police officers and private citizens occasioned by sudden unannounced entries by police officers into private dwellings. (Duke v. Superior Court, 1 Cal.3d 314, 82 Cal.Rptr. 348, 461 P.2d 628.) 'Entry' includes passing through an open door. (People v. Bradley, 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129; People v. Lawrence, 25 Cal.App.3d 213, 101 Cal.Rptr. 671.)

Police officers are required '(1) to knock or utilize other means reasonably calculated to give adequate notice of their presence to the occupants, (2) to identify themselves as police officers, and (3) to explain the purpose of their demand for admittance.' (Duke, supra, 1 Cal.3d 319, 82 Cal.Rptr. 351, 461 P.2d 631; Greven v. Superior Court, 71 Cal.2d 287, 289, 78 Cal.Rptr. 504, 455 P.2d 432; People v. Rosales, 68 Cal.2d 299, 302, 66 Cal.Rptr. 1, 437 P.2d 489.) Failure to comply with these statutes results in the inadmissibility of evidence seized after an unlawful entry. (People v. Kanos, 70 Cal.2d 381, 74 Cal.Rptr. 902, 450 P.2d 278.)

Substantial compliance is sometimes found even though officers have failed to state their purpose before entering. (Duke, supra, 1 Cal.3d 319, 82 Cal.Rptr. 348, 461 P.2d 628; People v. Thornton, 8 Cal.App.3d 741, 87 Cal.Rptr. 535.) However, compliance does require, at the very least, that police officers identify themselves Prior to entry. (Garcia v. Superior Court, 29 Cal.App.3d 977, 981, 106 Cal.Rptr. 98.)

In the instant case, the fact that someone else opened the door of defendant's apartment did not excuse the officers from compliance with section 844 and section 1531. Viewing the situation disclosed by the record as favorably to the judgment as possible, it seems clear that officers Pearce and Hill neither announced their identitites nor their purpose while they were standing outside defendant's apartment. The statements made During entry do not fulfill the statutory requirements; acceptance of such conduct as compliance would vitiate the underlying policy of the entry statutes which compels notice Prior to entry for...