People v. Myers

• Decision Date: 28 May 1970
• Docket Number: Cr. 16874
• Citation: 87 Cal.Rptr. 246,8 Cal.App.3d 268
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jessie Samuel MYERS, Defendant and Appellant.

Page 246

87 Cal.Rptr. 246

8 Cal.App.3d 268

The PEOPLE, Plaintiff and Respondent, v. Jessie Samuel MYERS, Defendant and Appellant.

Cr. 16874.

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

May 28, 1970.

Hearing Denied July 29, 1970.

Louis G. Atlee, North Hollywood, under appointment by Court of Appeal, for defendant and appellant.

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

FILES, Presiding Justice.

After a jury trial defendant was convicted of first degree robbery (Pen.Code, § 211) and receiving stolen property (Pen.Code, § 496). He is appealing from the judgment. The notice of appeal also refers to 'the denial of the 1538.5 motion' which is not an appealable order (see Pen.Code, § 1237).

There is no contention that the evidence was insufficient. The robbery victim identified defendant, and some of the victim's property was found in defendant's apartment. The search of defendant's apartment also disclosed a checkbook which had been taken from the victim of another robbery. This checkbook was the basis of the conviction for receiving.

Defendant's contention here is that the articles found in his apartment were inadmissible upon the ground they were taken by an illegal search. Prior to trial defendant moved, under Penal Code, section 1538.5, for the suppression of these articles. After hearing the evidence the court denied the motion.

The evidence tending to support the ruling of the trial court includes the following:

During the evening of January 21, 1969, Officer Beasley, of the Los Angeles Police Department robbery detail, and his partner went to the apartment occupied by defendant and R. L. Foster. The officers had no warrant. Their purpose was to arrest defendant and Foster, who had been accused of a kidnap-robbery and rape. Officer Beasley had talked with the rape victim and had observed her bruises.

At the apartment house the officers first called upon the manager, who accompanied the officers to defendant's apartment and opened the door for them with her key. Before entering, Officer Beasley did not know whether or not the occupants were inside. After he entered and found no one there, he sat in a chair behind the door to wait.

The officer's testimony includes this:

'Q. Did you have some reason for waiting in--hidden in that manner?

'A. Yes, sir.

'Q. What was that?

'A. Based on the injuries that the rape victim had claimed, the injuries that I observed to her person, the fact that the defendant supposedly had a gun, I wanted every possible advantage when he came through that door.'

When Foster arrived, Officer Beasley arrested him and then made a search of the apartment, in the course of which he found the articles which were used against defendant in this case.

The search went beyond the scope allowed by the recent opinion in Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, but those new limitations do not apply to searches made prior to the date of the Chimel decision. (People v. Edwards (1969) 71 A.C. 1141, 80 Cal.Rptr. 633, 458 P.2d 713.) Under the law then applicable, the search was a proper incident of Foster's arrest, if that arrest was legal.

Defendant conceded in the trial court that Officer Beasley had reasonable cause to arrest Foster without a warrant.

Defendant's attack on the legality of the arrest is based upon two theories: (1) The arrest inside the apartment was only a pretext designed to afford an opportunity to seize evidence which the police had located by a prior illegal search; and (2) Officer Beasley entered the apartment without first having demanded admittance and explained his purpose in compliance with Penal Code, section 844.

In support of his first contention defendant produced the testimony of the apartment house manager. She testified that between 6 and 7 p.m. on the evening of Foster's arrest, about an hour before Officer Beasley's arrival, six uniformed officers came to the apartment, found the door open, entered and made a search, looking under the mattress, in the cupboards and in the drawers. She said those officers found some papers which they carried away with them.

On this subject Officer Beasley's testimony was as follows:

'Q. Did you have any knowledge of any police officers being to that apartment ahead of you?

'A. I was aware that officers had been there, yes.

'Q. Were you aware that they had gone in and made any search?

'A. No, sir.'

On the factual issues, including the credibility of witnesses, we must assume in favor of the trial court's decision all inferences which could reasonably be drawn from the evidence. Upon this record, the trial court could reasonably find that Beasley came to the apartment in good faith to arrest two men wanted for a rape-robbery kidnaping, and that he had no knowledge that other officers had been inside previously. It was reasonable for Beasley to expect that one or both subjects might be found in the apartment in the evening. Furthermore, the trial court was not required to believe, on this record, that the uniformed officers had discovered the articles which were later used against defendant, or, if the uniformed officers had seen them, that they had attached any significance to them. The factual basis of defendant's claim of 'pretext' therefore disappears with the trial court's adverse finding of the facts.

The officer's failure to comply with Penal Code, section 844 is a problem here only because the prosecutor neglected to ask the witness about his state of mind immediately before entering. In the absence of direct evidence, it is a permissible inference that his state of mind then was the same as that which he described as his reason for wanting to wait behind the door when he found the apartment empty. Officer Beasley had come to arrest men who had proved their propensity for violence, who were believed to be armed, and who were wanted for an offense carrying a possible death penalty (Pen.Code, § 209). Speaking of his reason for waiting inside, behind the door, Officer Beasley said, 'I wanted every possible advantage.'

The rule is well established that noncompliance with section 844 may be excused when the officer acts on a reasonable and good faith belief that compliance would increase his peril. (See People v. Gilbert (1965) 63 Cal.2d 690, 706, 47 Cal.Rptr. 909, 408 P.2d 365 ¹ (officer used manager's key); People v. Smith (1966) 63 Cal.2d 779, 797, 48 Cal.Rptr. 382, 409 P.2d 222 (officer crawled through window to avoid a dangerous confrontation).)

In the case at bench the evidence supports the trial court's finding that the officer chose to enter silently, with the aid of the manager, because he reasonably believed that this would be less dangerous than to announce himself.

Once the officer had made a lawful entry, and found the wanted men were absent, there was no constitutional compulsion for him to withdraw and try to make the arrest by some means which he reasonably believed would be more dangerous. There was no further or different invasion of anyone's privacy from that moment until Foster entered and was lawfully arrested.

The...