People v. Rosales

• Decision Date: 28 February 1968
• Docket Number: Cr. 11533
• Citation: 66 Cal.Rptr. 1,68 Cal.2d 299
• Court: California Supreme Court
• Parties: , 437 P.2d 489 The PEOPLE, Plaintiff and Respondent, v. Genovevo ROSALES, Defendant and Appellant.

Page 1

66 Cal.Rptr. 1

68 Cal.2d 299, 437 P.2d 489

The PEOPLE, Plaintiff and Respondent, v. Genovevo ROSALES, Defendant and Appellant.

Cr. 11533.

Supreme Court of California In Bank.

Feb. 28, 1968.

Rehearing Denied March 28, 1968.

Genovevo Rosales, in pro. per., and Joseph C. Battaglia, Beverly Hills, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Brian Amer, Deputy Atty. Gen., for plaintiff and respondent.

TRAYNOR, Chief Justice.

Defendant appeals from a judgment of conviction of possession of heroin. (Health & Saf.Code, § 11500.) The prosecution was based on the discovery of heroin on defendant's person at the time of his arrest. Defendant contends that the heroin was obtained by an unconstitutional search and seizure by the arresting officers.

Defendant and Fred Berru were arrested in a house in the Pacoima area of Los Angeles County. They were apprehended by Parole Officer Damerell, San Fernando Police Officer Barbarick, and two other police officers. Officer Barbarick had received information that defendant and Berru were arranging sales of heroin by telephone at the house where they were arrested. He got in touch with Parole Officer Damerell and learned that both suspects were parolees who had violated their paroles by failure to report and that the Adult Authority had suspended defendant's parole and issued an all points bulletin for his arrest. The officers then went to the house to arrest defendant for parole violation. Officers Barbarick and Damerell went to the front door, and the other officers covered the back of the house. Before entering, one officer saw Berru through a front bedroom window and another officer saw defendant through the front screen door. Defendant was sitting on a couch with his back to the door. Officers Barbarick and Damerell quickly entered the house and accosted defendant. Just before they arrested defendant they passed a girl and told her that they were police officers but they did not announce their purpose or demand entry before going into the house.

There is some evidence that the girl was related to Berru, but there is no evidence of her age, or whether she lived at the house, was visiting or just arriving for a visit. It does not appear whether the officers were in uniform. Damerell was not the parole officer of either Berru or Rosales, and there is no evidence that either knew who he or the other officers were. Damerell testified that before he entered the house he believed that the screen door was closed but that the wooden door was open. ¹

Although the prosecution did not elicit sufficient details of Officer Barbarick's information on defendant's current narcotics activities to show he had reasonable cause to believe that defendant was guilty of a new narcotics offense, defendant's arrest was justified by the suspension of his parole and the order of the Adult Authority that he be returned to custody. (Pen.Code, §§ 3060, 3061.) It also appears that before they entered the house the officers had reasonable cause to believe that defendant was there. The crucial question, therefore, is whether the officers' failure to explain their purpose and demand admittance as required by section 844 of the Penal Code ² vitiated the arrest. We hold that it did.

We note at the outset that the officers' identification of themselves to the girl did not constitute substantial compliance with section 844. That section requires that an officer explain his purpose before demanding admittance, not merely that he identify himself as an officer. 'The burden of making an express announcement (of purpose) is certainly slight.' (Miller v. United States (1958) 357 U.S. 301, 309, 78 S.Ct. 1190, 1196, 2 L.Ed.2d 1332.)

Such identification alone could constitute substantial compliance with section 844 only if the surrounding circumstances made the officers' purpose clear to the occupants or showed that a demand for admittance would be futile. There is nothing in the record to show that any of the occupants or even the girl knew that the officers' purpose was to arrest the defendant or understood that they were demanding admittance. ³

The Attorney General contends that since the officers did no more than open an unlocked screen door and walk in, no 'breaking' within the meaning of the statute occurred. We do not agree with this contention. Although the common law rule was first articulated to regulate entry by force, it is not limited to entries effected by physical violence. Section 844 is a codification of the common law. (People v. Maddox (1956) 46 Cal.2d 301, 306, 294 P.2d 6.) At the very least, it covers unannounced entries that would be considered breaking as that term is used in defining common law burglary. (Rest.2d Torts (1965) § 206, com. b; Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California (1964) 112 U.Pa.L.Rev. 499, 505; Wilgus, Arrest Without a Warrant (1924) 22 Mich.L.Rev. 798, 806.) As so defined, no more is needed 'than the opening of a door or window, even if not locked, or not even latched. Pulling open a screen door held closed only by a spring is sufficient.' (R. Perkins, Criminal Law (1957) 149, 150.) ⁴

Since in the present case the only evidence before the trial court showed that the officers entered by opening a closed, unlocked door, the prosecution did not discharge its burden of establishing the legality of the entry. (See People v. Roberts (1956) 47 Cal.2d 374, 377, 303 P.2d 721; People v. Carswell (1959) 51 Cal.2d 602, 607, 335 P.2d 99.)

The fact that defendant was a parole violator deemed an 'escape and fugitive from justice' (Pen.Code, § 3064) did not excuse noncompliance with section 844, for the Legislature has expressly provided that an order to retake a parolee must be executed 'in like manner as ordinary criminal process' (Pen.Code, § 3061). Even an escape from custody, however, does not alone justify entrance into a house to make an arrest without explanation of purpose and demand for admittance. (Pen.Code, § 855; see also Pen.Code, § 1531; People v. Arellano (1966) 239 Cal.App.2d 389, 390--392, 48 Cal.Rptr. 686; People v. Stephens (1967) 249 A.C.A. 125, 126--129, 57 Cal.Rptr. 66.)

Section 844 is designed to protect fundamental rights. 'Decisions in both the federal and state courts have recognized, as did the English courts, that the requirement is of the essence of the substantive protections which safeguard individual liberty.' (Ker v. State of California (1962) 374 U.S. 23, 49, 83 S.Ct. 1623, 1637, 10 L.Ed.2d 726, Brennan, J., dissenting.)

The statute reflects more than concern for the rights of those accused of crime. It serves to preclude violent resistance to unexplained entries and to protect the security of innocent persons who may also be present on premises where an arrest is made. ⁵ 'We are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law. But insistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness. The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. * * * Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house. The petitioner could not be lawfully arrested in his home by officers breaking in without first giving him notice of their authority and purpose. Because the petitioner did not receive that notice before the officers broke the door to invade his home, the arrest was unlawful, and the evidence seized should have been suppressed.' (Miller v. United States (1958) 357 U.S. 301, 313--314, 78 S.Ct. 1190, 1197--98, 2 L.Ed.2d 1332; cf. Ker v. State of California, supra, 374 U.S. 23, 40--41, 83 S.Ct. 1623, 10 L.Ed.2d 726, where 'exigent circumstances' excused compliance with the notice and demand requirements.)

Noncompliance with section 844 may nevertheless be excused when the officer acts on a reasonable and good faith belief that compliance would increase his peril, frustrate an arrest, or permit the destruction of evidence. Such a belief, however, must be based on the facts of the particular case. It cannot be justified by a general assumption that certain classes of persons subject to arrest are more likely than others to resist arrest, attempt to escape, or destroy evidence. (People v. Gastelo (1967) 67 A.C. 596, 599, 63 Cal.Rptr. 10, 432 P.2d 706, and cases cited.)

The Attorney General contends that the officers were excused from compliance with section 844 to prevent defendant's escape. The facts do not support this contention. Four officers went to the house and covered its front and back. Before entering they saw both defendant and Berru and observed no suspicious activity. Compliance with section 844 would have afforded defendant and Berru a few seconds at most to take evasive action. There is no evidence that would justify a belief that such compliance would have increased the officers' peril, frustrated the arrest, or resulted in the destruction of evidence.

Since the entry was unlawful, the search of defendant's person was illegal. The heroin discovered thereby should therefore have been excluded.

The judgment is reversed.

PETERS, TOBRINER and SULLIVAN, JJ., concur.

DISSENTING OPINION

BURKE, Justice.

I dissent. The majority, by adopting an unduly restrictive view regarding what...