People v. Negrete

• Decision Date: 29 June 1978
• Docket Number: Cr. 31374
• Citation: 82 Cal.App.3d 328,147 Cal.Rptr. 101
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Angel Jurado NEGRETE, Defendant and Appellant.

Page 101

147 Cal.Rptr. 101

82 Cal.App.3d 328

The PEOPLE of the State of California, Plaintiff and Respondent, v. Angel Jurado NEGRETE, Defendant and Appellant.

Cr. 31374.

Court of Appeal, Second District, Division 3, California.

June 29, 1978.

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, and Jonathan B. Steiner and James K. Stoddard, Deputy State Public Defenders, under appointment by the Court of Appeal, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., and Robert F. Katz and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

KLEIN, Presiding Justice.

Defendant Angel Jurado Negrete was charged by information with possession of heroin for the purpose of sale (Health & Saf. Code, § 11351). After defendant's motion to suppress evidence pursuant to Penal Code section 1538.5 and his request that the court view the scene of the arrest were both denied, a jury found defendant guilty as charged. The court thereafter granted defendant's motion to reduce his conviction to simple possession of heroin (Health & Saf. Code, § 11350), and judgment of imprisonment was entered thereon.

On this appeal, in which defendant's sole challenge is to the propriety of the denial of his suppression motion, the following related contentions are made: (1) the arresting officer failed to comply with the announcement and demand-for-entry provisions of Penal Code section 844; ¹ and (2) the arresting officer's version of the facts surrounding the arrest was inherently improbable. We conclude that defendant's contentions are without merit and, therefore, affirm the judgment.

FACTS

The following statement of facts is limited to the evidence presented at the hearing on the section 1538.5 motion.

Upon receiving an anonymous scratch pad message (later destroyed) and a corroborating telephone call to the effect that defendant was selling heroin from a motel located at 12215 San Fernando Road, John Applegarth, a narcotics officer with the Los Angeles Police Department for six years, and several fellow officers established a surveillance of the indicated location at approximately 8:00 p. m. on January 27, 1977. Officer Applegarth had seen defendant almost one-hundred times in the past and had arrested defendant for heroin use five to ten times over the previous four-year period, including one arrest just two weeks earlier.

Shortly after the surveillance began, Officer Applegarth observed a known heroin addict, Hector DeAnda, drive up to the motel with a female passenger and get out of his car. When DeAnda left the motel shortly thereafter, he appeared to be under the influence of heroin, causing Officer Applegarth The two pursuing officers subsequently forced DeAnda to pull his car over after he ran a red light in an attempt to elude them. As the vehicles came to a stop, Officer Applegarth observed DeAnda hand a balloon-like object to his passenger, who then swallowed it. Applegarth asked DeAnda if he would aid the investigation by making another heroin purchase at the motel, but DeAnda refused. DeAnda and his female passenger were then placed under arrest.

and another officer to follow him in their car. In the meantime, Applegarth had received a radio communication from his partner, Officer Peters, who had been stationed near the door of defendant's motel room; Peters reported that he had observed an apparent heroin transaction take place between DeAnda and an occupant of the room.

Officer Applegarth thereafter returned to the motel to "conduct an investigation" of defendant. Applegarth and the other officers who participated in the stakeout of the motel were in plain clothes. The officers possessed neither a search nor arrest warrant, but Applegarth was aware of the fact that defendant was then on summary probation, one of the conditions of which was that he submit his person or property to searches at any time of the day or night. ²

After directing Officer Peters to cover the rear bathroom window of the suspect motel unit, Officer Applegarth approached the front door of the unit and observed that the ragged curtains on an adjacent window did not completely cover each windowpane. By looking through a six to ten inch unobstructed portion of the window, Applegarth could see through the dimly lit front room into the lighted and open bathroom, where defendant was standing at a distance of approximately twelve feet from the officer's vantage point. Defendant was using a razor blade to cut or mix a mound of tannish powder which had been placed upon the surface of a hand-held mirror; based upon his experience as a narcotics officer, Applegarth concluded that defendant was "cutting heroin."

While continuing to observe through the window, Officer Applegarth knocked on the doorpost. In response, defendant placed the mirror with the powder on it out of view and approached the front door. When defendant was within a few feet of the window, he looked at Applegarth, did a "double take," and began running back toward the bathroom. At that point, Officer Applegarth broke through the locked front door and then forced his way through the bathroom door, which defendant had succeeded in getting "95 per cent" closed. Before being subdued, defendant attempted to flip the tannish powder, which later proved to be heroin, into the toilet; although some of the powder attained its target, a great deal was scattered about the floor. Applegarth was followed into the motel room by several fellow officers, also in plain clothes.

Officer Applegarth subsequently recovered from the bathroom some of the heroin which had fallen to the floor, a portion of the mirror (which had broken in the scuffle), a narcotics "user" kit, a bag containing additional heroin, some balloons, a funnel, and a razor blade. All of the seized items were in plain view.

At the time of Officer Applegarth's entry, defendant's girl friend, Helen Carmona, was lying down on the bed in the front room of the motel unit.

Defense

Helen Carmona testified that on January 27, 1977, she and her two children were living with defendant in his motel room. At approximately 8:30 or 9:00 p. m., as she was preparing for bed, Ms. Carmona heard a loud noise as the front door was knocked down and then observed several men enter the room; she did not hear a knock on the door. Ms. Carmona did not know that the Defendant, testifying in his own behalf, denied hearing any knock on the door and disclaimed any knowledge that the police were outside. He asserted that he had been in the bathroom with the door closed for about five to ten minutes when he heard the "bang" of the front door being knocked down; the police entered the bathroom approximately five to seven seconds later. According to defendant, the drapes in the front room were drawn and could not be seen through. Defendant admitted that he could recognize Applegarth on sight based upon his previous contacts with the officer.

men who entered were police officers and did not remember if they had identified themselves as such. After the officers entered, they walked around the kitchen area for a few seconds and then pushed open the bathroom door, which had been closed. Ms. Carmona [82 Cal.App.3d 335] also testified that it was not possible to see through the front windows as the drapes were completely drawn.

DISCUSSION

I

Compliance with the terms of section 844, ³ which defines the circumstances under which the police may force entry into a dwelling to make an arrest, requires that the police first (1) knock or utilize some other means reasonably calculated to alert the occupants to their presence; (2) identify themselves as police officers; and (3) explain the purpose of their demand for admittance. (Duke v. Superior Court (1969) 1 Cal.3d 314, 319, 82 Cal.Rptr. 348, 461 P.2d 628; People v. Keogh (1975) 46 Cal.App.3d 919, 927, 120 Cal.Rptr. 817.) The purposes to be served by these requirements have been described as:

"(1) the protection of the privacy of the individual in his home (citations); (2) the protection of innocent persons who may also be present on the premises where an arrest is made (citation); (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice (citations); and (4) the protection of police who might be injured by a startled and fearful householder."

(Duke v. Superior Court, supra, 1 Cal.3d at p. 321, 82 Cal.Rptr. at p. 352, 461 P.2d at p. 632; see People v. Solario (1977) 19 Cal.3d 760, 763, 139 Cal.Rptr. 725, 566 P.2d 627.) An entry accomplished in violation of section 844, when applicable, will render any subsequent search "unreasonable" within the meaning of the Fourth Amendment. (Greven v. Superior Court (1969) 71 Cal.2d 287, 290, 78 Cal.Rptr. 504, 455 P.2d 432; see Parsley v. Superior Court (1973) 9 Cal.3d 934, 938, 109 Cal.Rptr. 563, 513 P.2d 611.)

There is no dispute in the case at bench that the condition of defendant's probation which required him to consent to searches of his person or property did not deprive him of the protection afforded by section 844 or relieve the arresting officers from the obligation to act in conformance with that section. (People v. Freund (1975) 48 Cal.App.3d 49, 56-58, 119 Cal.Rptr. 762; People v. Constancio (1974) 42 Cal.App.3d 533, 542-544, 116 Cal.Rptr. 910.) Further, it is undisputed that Officer Applegarth's entry into defendant's motel room did not comport with the literal requirements of the statute since he neither identified himself nor announced his purpose beforehand. (Duke v. Superior Court, supra, 1 Cal.3d 314, 319, 82 Cal.Rptr. 348, 461 P.2d 628.)

It is well established, however, that compliance with the provisions of section 844 is excused if the specific facts known to the officer prior to his entry support his...