People v. Pacheco

• Decision Date: 04 August 1972
• Docket Number: Cr. 10116
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Leonardo PACHECO, Jr., Defendant and Appellant.

Page 583

103 Cal.Rptr. 583

27 Cal.App.3d 70

PEOPLE of the State of California, Plaintiff and Respondent, v. Leonardo PACHECO, Jr., Defendant and Appellant.

Cr. 10116.

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

Aug. 4, 1972.

Hearing Denied Oct. 18, 1972.

Richard L. Phillips, Davidson, Davidson & Phillips, Foster City, for appellant.

Evelle J. Younger, Atty Gen. of California, Herbert L. Ashby, Chief Asst. Atty. Gen., Criminal Division, William E. James, Asst. Atty. Gen., Appeals Section, Joyce F. Nedde, Eugene Kaster, Deputy Attys. Gen., San Francisco, for respondent.

BRAY, Associate Justice. ^*

Defendant appeals from conviction after jury trial in the Superior Court of Alameda County of violation of section 11530, and two counts of violation of section 11910, Health and Safety Code.

Questions Presented

1. Did the officers comply with the 'knock and notice' requirements of Penal Code section 1531?

2. Should the identity of the informer have been disclosed?

3. Did the In camera hearing (Evid.Code, § 1042, subd. (d)) deprive defendant of his Sixth Amendment right to compulsory process?

4. Did the conduct of the prosecuting attorney constitute prejudicial misconduct?

Record

The District Attorney of Alameda County filed an information charging defendant, in count one, with violation of Health and Safety Code section 11530 (possession of marijuana), in count two, with violation of Health and Safety Code section 11910 (possession of barbiturates), and in count three, violation of Health and Safety Code section 11910 (possession of methamphetamine). Defendant made a motion under Penal Code section 1538.5 to suppress evidence. It was granted only as to property not described in the search warrant which was issued in this matter. After a trial the jury found defendant guilty on all three counts and judgment was entered accordingly. The court, after striking from the record two prior convictions admitted by defendant, sentenced defendant to state prison for the terms prescribed by law, the sentences to run concurrently. ¹

Facts

On January 15, 1971 Robert Elsberg, an agent of the California Bureau of Narcotic Enforcement, obtained a search warrant for the search of Apartment C, 1645 47th Avenue, Oakland, and with other officers went to that location. The search warrant and the circumstances of entry to the building will be discussed later.

In a bedroom to which defendant retreated on entry of the officers, Elsberg found defendant standing near a plastic bag from which red Seconal pills were spilling onto the floor. Also in that room, Elsberg found three bindles of methamphetamine, some marijuana on a bookstand, and some barbiturates in an attache case beneath the bed. After defendant was arrested and given the Miranda warnings and the officers were getting names and birth dates of other people in the apartment, defendant stated: 'That's all right, you don't have to arrest these people, all this stuff is mine.' He also stated that a decorative clock on the living room table belonged to him. Before leaving for jail, defendant dressed himself in a shirt which he took from a clothes hanger in the bedroom closet. Two witnesses, John Marzan and Catherine Kaufmann, who also lived in Apartment C, testified that defendant also lived there and was considered the head of the household. They also testified that defendant sold drugs there and the Seconal belonged to defendant, the methamphetamine to defendant, Perkins and Megaloff, and that Perkins, who, defendant testified, was the renter of the apartment, had not lived there during the preceding month. Marzan testified that the attache case containing the pills belonged to defendant, and that he had heard defendant state to the officers that all the 'stuff' belonged to him.

Perkins testified that Apartment C was rented to him, that defendant paid no part of the rent, and that the utilities were registered in Perkins' name. Perkins had voluntarily committed himself to the California Rehabilitation Center for narcotic addicts. Invoking the privilege against self-incrimination, he declined to answer whether the contraband found in Apartment C belonged to him. He testified that he slept in his own house for the month preceding the raid, and that defendant had only stayed in Apartment C on the night before.

Defendant testified that he did not reside in Apartment C, and did not know that it contained contraband. He had visited Apartment C three or four times and had become acquainted with Perkins who rented the apartment. The day before the arrest, he visited Apartment C and asked Perkins if he could stay and store some of his possessions there in the apartment. Defendant, his girlfriend and Marzan remained there overnight and were there at the time of the arrest. The property which defendant brought to store included six or seven used tape recorders which he has forgotten to give his nephews and nieces during the Christmas holidays. When he told the officers that all the 'stuff' belonged to him, he was referring to the tapes and stereo equipment and not to the drugs. Defendant knew that Perkins was a drug user. When asked how the 'reds' got on the floor, he stated that he must have knocked them from their hiding place and 'knocked them all over the place.'

1. Compliance with Penal Code section 1531.

Penal Code section 1531 provides that in executing a search warrant, '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 the warrant, if, after notice of his authority and purpose, he is refused admittance.'

An entry of a house, in violation of the aforementioned section, renders any following search and seizure unreasonable within the purview of the Fourth Amendment. (Greven v. Superior Court (1969) 71 Cal.2d 287, 290, 78 Cal.Rptr. 504, 455 P.2d 432; People v. Garber (1969) 275 Cal.App.2d 119, 131, 80 Cal.Rptr. 214.) In order to substantially comply with the dictates of section 1531, the police officer must (1) knock or employ some other means reasonably calculated to notify the occupants of his presence, (2) identify himself as a peace officer, and (3) explain the purpose of his demand for admittance. (People v. Perales (1970) 4 Cal.App.3d 773, 778, 84 Cal.Rptr. 604; Duke v. Superior Court (1969) 1 Cal.3d 314, 319, 82 Cal.Rptr. 348, 461 P.2d 628.) '(W) hen there is reasonable cause to make an arrest and search and the facts known to (the officer) before his entry are not inconsistent with a good faith belief on the part of the officer that compliance . . . is excused, his failure to comply with the formal requirements of that section does not justify the exclusion of the evidence he obtains.' (People v. Guthaus (1962) 208 Cal.App.2d 785, 790--791, 25 Cal.Rptr. 735, 738, quoting People v. Maddox (1956) 46 Cal.2d 301, 306--307, 294 P.2d 6.) The facts concerning the officers' appearance at Apartment C follow.

3] Elsberg's affidavit in support of the warrant stated that, on January 14, 1971, Elsberg was contacted by informant 'X' who told Elsberg that, on January 14, 1971, X had observed a box lid containing approximately one-fourth pound of marijuana on the coffee table in the living room of Apartment C. X had also observed four kilo packages of marijuana in an attache case in the bedroom. X referred to Apartment C as defendant's residence. On other occasins, X had given Elsberg information which had led to the arrest of at least 50 persons and the conviction of at least 10 persons, that none of the information received from X by Elsberg had ever proved unreliable, and that X's name was not disclosed for fear of X's personal safety and because revelation of X's name would hinder further narcotic investigations in the City of Oakland.

At approximately 4:30 p.m., on January 15, 1971, Elsberg, in the company of two uniformed policemen, three plainclothes policemen and two other plainclothes State Bureau of Narcotic Enforcement agents, went with a search warrant to Apartment C. Elsberg was carrying the search warrant in one hand and his badge in the other. As Elsberg entered the yard in front of Apartment C, Mosquedo came out of the apartment. Elsberg gave the warrant to Officer O'Guinn, one of the plainclothes policemen, and attempted to detain Mosquedo. Mosquedo testified that he saw Elsberg's badge but did not obey Elsberg's order to stop and was detained only after a struggle.

While Elsberg was involved with Mosquedo, O'Guinn approached the front door of the apartment. The front door was constructed primarily of transparent glass, and to its right there was a curtained glass window through which O'Guinn testified he had clear visibility.

Agent Picallo, who was directly in front of O'Guinn, knocked on the door and stated: 'Police officers. We have a search warrant. Open the door.' O'Guinn testified that he displayed his badge to defendant, who was seated on the couch in the front room. Defendant was looking in O'Guinn's direction. Thereupon defendant got off the couch and started toward the rear of the apartment. O'Guinn then instructed Picallo to 'kick the door,' i.e., gain entry by force. O'Guinn testified that his giving notice to defendant and the kicking in of the door occurred almost simultaneously. Picallo complied, and O'Guinn entered the front room to control another individual who had been seated on the couch.

O'Guinn testified that he ordered the door to be kicked open for fear that defendant might be attempting to destroy evidence. Defendant was brought back to the living room and was searched for weapons.

Three witnesses testified that they did not hear a knock and identification from the officers prior to the forcible entry. Agent Elsberg, who was within five feet of the front door, testified that while he did recall hearing police officers during this time, he did not remember any officer knocking at the door and demanding entrance. Robert Mosquedo did not hear...