People v. Parra, Cr. 5530

• Decision Date: 21 February 1973
• Docket Number: Cr. 5530
• Citation: 106 Cal.Rptr. 531,30 Cal.App.3d 729
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Nicholas Joseph PARRA, Defendant and Appellant.

Page 531

106 Cal.Rptr. 531

30 Cal.App.3d 729

The PEOPLE of the State of California, Plaintiff and Respondent, v. Nicholas Joseph PARRA, Defendant and Appellant.

Cr. 5530.

Court of Appeal, Fourth District, Division 2, California.

Feb. 21, 1973.

Hearing Denied May 9, 1973.

[30 Cal.App.3d 730] Fred A. Lopez, Jr. and Jesse Arias, Jr., San Bernardino, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., and Mark L. Christiansen and Yvonne H. Behart, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Associate Justice.

Judgment of conviction was entered on a plea of guilty made by defendant Nicholas Joseph Parra to the charge of possession of heroin for sale. (Health & Saf.Code, § 11500.5.) Defendant unsuccessfully moved the trial court to suppress certain evidence essential to establish his guilt. By this appeal, he seeks further review of the validity of the search and seizure. (Pen.Code, § 1538.5, subd. (m).)

At nightfall on Sunday evening, September 27, 1970, police officer Michael Robitzer arrived at a shopping center in Colton in response to a citizen's report that the front door of the Alpar Florist Shop was open. Although a sign on the door announced 'Sorry, We Are Closed,' Robitzer saw that the door was ajar. The door was made of glass, with a metal frame and push bar, and was hinged to swing both in and out. The lock on the door was of a kind that could be worked only by its key.

Robitzer checked the door and the front window for the name of the proprietor but found none. He then stepped inside the shop and with the aid of his flashlight looked around for the same information, without success. The city business license read only 'Alpar Florist.' A radio check with the police dispatcher also failed to produce from police records any name or telephone number of the party responsible for the business premises. Robitzer explained the reason for his investigation as follows: 'Well, the fact that the door was left open and the building could be entered, the reason we have to have responsible person come down is to check to see if anything is missing, to see if a crime is committed and to secure his building and make sure everything was to his satisfaction before leaving.'

Robitzer, a new man on the force, called the shift supervisor for assistance and shortly thereafter Sergeant Paul Connally appeared. The two reentered the shop. Connally explained the purpose for entering the premises as follows: 'Our purpose would be to attempt to secure the store for the owner of the business as best we could, contact him and find out if anything, everything was all right, if anything had been taken, anything disturbed.'

The officers passed through a partition to the rear portion of the shop. Connally found a light switch and turned on the lights. A kneehole-type desk was near the light switch. An examination of the clutter on the top of the desk yielded no information as to the proprietor of the shop. Connally said, 'I thought that quite possibly there would be a business card in the desk and so I opened the large drawer in the center of the desk, the one right under the top of the desk.' Upon opening the drawer six or eight inches, Connally saw three translucent prophylactic sheaths, one and one-half inch to two inches in diameter and three or four inches long, tied off at the ends and containing a powdery substance. Connally knew that narcotics are packaged in this way. His knowledge was derived from a class in vice and narcotics control at California State College Los Angeles, departmental schools conducted by the narcotics division, and 'training boards with narcotics paraphernalia and substances on them.' He had made arrests for narcotics offenses and was familiar with how heroin was packaged for use on the streets.

Connally untied the end of the prophylactic and saw the 'brownish powdery grainy substance' inside. He said that he 'had a stronger suspicion at this time that it was, in fact, a narcotic,' founded upon 'previously seen narcotic heroin substance.' Connally put in a call for the department's narcotics officers who subsequently arrived and confirmed that the substance was heroin.

Further search of the top desk drawer revealed more balloons and prophylactics, one of the latter containing 'some type of substance inside.'

The other drawers of the desk were opened. There and in other parts of the room more balloons and some teaspoons were found but no narcotics were found.

Defendant appeared at the shop about 10 p.m. Robitzer asked defendant if he was the owner of the shop and when defendant said, 'Yes,' he was placed under arrest. After being advised of his rights, defendant was asked whether the suspected heroin was his. Defendant admitted it was his, that it was heroin, that he got it from Mexico, and that he was dealing in narcotics and had been dealing 'since March.' When defendant was asked how much heroin there was he said, 'Three balloons that are uncut, I cut three to one.' Defendant said that he paid $2,500 for the heroin, and that he received a supply every month or month and a half from which he made $7,500.

Defendant consented to a search of his car in the trunk of which was found a balloon with 'some type of substance inside.'

The brown powder found in the desk and the automobile was chemically analyzed as 5.2 ounces of heroin.

The first question is whether it was lawful for the officers to enter the shop.

There is nothing in the record to suggest that the officers entered the retail business establishment for any purpose other than to provide for its security. To paraphrase section 197 of the Restatement of Torts (2d ed.), one is privileged to enter and remain on land in the possession of another if it reasonably appears to be necessary to prevent serious harm to the land or chattels of the other party, unless the actor has reason to know that the one for whose benefit he enters is unwilling that he shall take such action. Section 197 is cited by the Supreme Court in People v. Roberts, 47 Cal.2d 374, 377, 303 P.2d 721, 723, wherein the court recognizes the privilege of police officers to enter private premises to preserve life or property: 'Necessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose.' According to the uncontradicted and credible evidence before the trial court, the officers entered the Alpar Florist Shop to protect the shop and its contents. Their presence in the shop was privileged.

Two recent Supreme Court cases relied on by defendant, People v. Smith, 7 Cal.3d 282, 101 Cal.Rptr. 893, 496 P.2d 1261, and Horack v. Superior Court, 3 Cal.3d 720, 91 Cal.Rptr. 569, 478 P.2d 1, are inapposite since both involved police intrusions into locked residential premises which were unlawful in their inception.

Concerning Smith, a police officer responded to a landlord's report that the tenant of an upstairs flat had left unsupervised a six-year-old girl. The officer talked to the child, and then directed the landlord to unlock the door to the upstairs flat, ostensibly to ascertain whether the child's mother had returned home in the interim. The trial court had found the evidence insufficient to establish the existence of an imminent and substantial threat to life, health or property, and suppressed the evidence uncovered during the officer's entry. The Supreme Court could perceive no valid justification for reweighing the factual basis of this determination and affirmed the order of the trial court. (7 Cal.3d at pp. 286--287, 101 Cal.Rptr. 893, 496 P.2d 1261.)

As to Horack, police officers were conducting a noontime investigation of a report that two 'hippie type' individuals had been seen entering what was believed to be a vacant residence. When there was no answer to the knock at the locked front door, the officers entered the house, guns drawn, through an unlocked rear door and proceeded to conduct a room-by-room and closet-by-closet search, which revealed a quantity of contraband. The People contended that the entry and search was authorized by the general duty of the police to investigate, detect and prevent crime and to protect life and property. The Supreme Court held, among other things, that, on the facts, emergency circumstances giving rise to an entrance under compulsion of necessity were simply not present. (3 Cal.3d at p. 725, 91 Cal.Rptr. 569, 478 P.2d 1.)

The Supreme Court considered that in both Smith and Horack the belief upon which the officers acted was not the product of facts known to or observed by them but of 'a fanciful attempt to rationalize' a justification for warrantless entry. (People v. Smith, supra, 7 Cal.3d at p. 287, 101 Cal.Rptr. 893, 496 P.2d 1261.) In this case, unlike Horack, the officers were not engaged in tracking down criminals or evidence of crime, and unlike both Horack and Smith, the officers' reaction in entering the shop was not predicated upon abstractions or speculation but upon the observed fact of an unlocked door to a retail establishment after business hours, leading to the logical...