People v. Marquez

• Decision Date: 23 May 1969
• Docket Number: Cr. 13152
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ignacio Barrera MARQUEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 907

77 Cal.Rptr. 907

273 Cal.App.2d 341

The PEOPLE, Plaintiff and Respondent, v. Ignacio Barrera MARQUEZ, Defendant and Appellant.

Cr. 13152.

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

May 23, 1969.

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

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Richard D. Huffman, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Associate Justice.

Defendant was charged, in two counts, with possession of heroin (Health & Saf. Code, § 11500), and possession of heroin for sale (Health & Saf. Code, § 11500.5). A prior felony conviction was also alleged. Defendant pled not guilty and denied the prior. Trial by jury was duly waived and the matter was submitted on the transcript of the preliminary examination. The court found him guilty on count I (possession) and not guilty on count II (possession for sale). A motion for new trial was denied, probation was denied, and defendant was sentenced to state prison, the term to run concurrently with 'any other time.' No disposition was made of the prior conviction alleged against him. He has appealed from the judgment. ¹

The evidence against defendant was secured as the result of a search of his apartment. It is not contended (and it could not be contended) that the evidence, if legally procured, was insufficient to sustain the finding of guilt. However, it was urged in the trial court, and is urged here, that the evidence was illegally obtained for two reasons: (1) that it was obtained by use of a search warrant, which warrant had been illegally obtained in that it was based on an inadequate affidavit; and (2) that, even if the warrant had been lawful, it was executed in violation of section 1531 of the Penal Code. Since we agree with the second of these contentions, and since that holding requires a reversal, we do not pass on the validity of the objections made to the affidavit on which the warrant was based.

In executing the warrant that they had obtained, the officers went to the place indicated, waited for approximately 30 seconds, heard a television set in operation but no other sounds, and then, without knocking, announcing their presence, or otherwise requesting admission, kicked in the door and entered.

Defendant argues that this entry violated section 1531 of the Penal Code, ² as construed in People v. Rosales (1968) 68 Cal.2d 299, 66 Cal.Rptr. 1, 437 P.2d 489, and People v. Gastelo (1967) 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706. We agree.

In Gastelo, the Supreme Court said at pages 588 and 589, 63 Cal.Rptr. at page 12, 432 P.2d at page 708:

'The Attorney General contends that unannounced forcible entry to execute a search warrant is always reasonable in narcotics cases, on the ground that narcotic violators normally are on the alert to destroy the easily disposable evidence quickly at the first sign of an officer's presence.

'We do not agree with this contention. Neither this court nor the United States Supreme Court has held that unannounced forcible entries may be authorized by a blanket rule based on the type of crime or evidence involved.

'* * *

'Under the Fourth Amendment, a specific showing must always be made to justify any kind of police action tending to disturb the security of the people in their homes. Unannounced forcible entry is in itself a serious disturbance of that security and cannot be justified on a blanket basis. Otherwise the constitutional test of reasonableness would turn only on practical expediency, and the amendment's primary safeguard--the requirement of particularity--would be lost. Just as the police must have sufficiently particular reason to enter at all, so they must have some particular reason to enter in the manner chosen.

'* * *

'Since there was nothing in the present case to justify the officers' failure to comply with section 1531, except an asserted general propensity of narcotics violators to destroy evidence when confronted by police officers, the officers' entry was unlawful. The illegally obtained evidence, which was crucial to the prosecution's case, should therefore have been excluded.'

The significance of the language just quoted is made evident by the discussion of Gastelo and Rosales in the subsequent decision in People v. De Santiago (1969) 71 Cal.2d ---, ^a 76 Cal.Rptr. 809, 453 P.2d 353. In that case the court said:

'Our decision in People v. Gastelo, * * * clearly forecloses the propriety of noncompliance with section 844 or its counterpart section 1531 when such noncompliance is based solely upon an officer's general experience relative to the disposability of the kind of evidence sought and the propensity of offenders to effect disposal. 'Just as the police must have sufficiently particular reason to enter at all, so must they have some particular reason to enter in the manner chosen.' (67 Cal.2d 586, at p. 589, 63 Cal.Rptr. 10, 432 P.2d 706.)' (People v. De Santiago, Supra (1969) 71 Cal.2d ---, ---, ^b 76 Cal.Rptr. 815, 453 P.2d 459.

The language above quoted applies with equal force to the case at bench. Officer Guenther justified his actions on the following basis:

'MISS OBERA: Q All right. Now, was there any reason for breaking in, rather than ringing the doorbell?

'A Yes.

'Q And what was that?

'A From the information that I had received, ³ if I had announced myself, I was told that the defendant would flush the narcotics down the toilet.

'Q Now, how long have you had experience in narcotics, Officer?

'A Over two years.

'Q Now, have you had any personal experience with narcotics being flushed down the toilet as you tried to announce yourself?

'A Yes, ma'am.

'Q Approximately how many occasions?

'A A dozen.'

In People v. De Santiago, Supra, the court did not rule out all entries made without compliance with section 844 (or section 1531). It said (immediately following the language we have quoted above):

'Thus, where officers have obtained particular information which leads them to...