People v. Vasquez

• Decision Date: 18 November 1969
• Docket Number: Cr. 15502
• Citation: 82 Cal.Rptr. 131,1 Cal.App.3d 769
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur VASQUEZ, Defendant and Appellant.

Page 131

82 Cal.Rptr. 131

1 Cal.App.3d 769

The PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur VASQUEZ, Defendant and Appellant.

Cr. 15502.

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

Nov. 18, 1969.

Rehearing Denied Dec. 10, 1969.

Hearing Denied Jan. 14, 1970.

Norman J. Kaplan, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Michael L. Abrams, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Associate Justice.

The determinative question on this appeal from the judgment convicting appellant of possession of heroin for purposes of sale is whether the seizure of the large supply of heroin which the arresting officers found in appellant's apartment was accomplished legally. In holding that this question must be answered affirmatively, we reject appellant's contention that the seizure should be held illegal because of the asserted failure of the officers, acting pursuant to the authority of a valid search warrant, to comply literally with the requirements of section 1531 of the Penal Code. ¹

Summary of the Evidence

At approximately 3 p.m. on October 29, 1966, Officers Ridenour and Leeds of the Narcotics Division of the Los Angeles Police Department went to the location of an apartment house described in the search warrant which they intended to execute. This warrant, the validity of which is unquestioned, was issued upon the basis of a reliable informant's sufficiently corroborated reports to Officer Ridenour that appellant Arthur Vasquez was dealing in large quantities of heroin and that he had sold heroin to the informant at apartment 14 of the described apartment house.

On arriving at the apartment house the two officers contacted Mrs. Van Buren, the apartment house manager. Officer Ridenour testified that he asked Mrs. Van Buren to check the parking lot to see if there were any vehicles there associated with Vasquez. She returned and said, 'Yes,' and said she was going to have Vasquez move the car. When she knocked on the door of apartment 14 appellant Vasquez asked, 'Who is it?' She replied, 'Manager,' whereupon Vasquez pulled back the drapes, looked out and then opened the sliding glass door. The two policemen were standing in the doorway, which was between the parking area and the apartment house courtyard. They were approximately 8 to 10 feet from the sliding glass door of apartment 14.

Mrs. Van Buren asked Vasquez to move his car. At that time the two policemen moved toward the sliding glass door. Sergeant Leeds had his badge in his hand and announced 'Police officers.' This occurred when the two officers were approximately 5 feet from Vasquez, outside his door. At that point Vasquez attempted to slide the glass door shut but the two officers moved forward, prevented him from closing the door and entered the apartment.

Whether the officers were in uniform or not does not appear, but the statement is made in the testimony that Officer Ridenour had his hand on his weapon, which was not drawn. And Mrs. Van Buren made the statement that Officer Ridenour had his hand on his gun but she did not think he had it out. In another part of the testimony reference is made to the gun holster.

Mrs. Van Buren testified that when the officers came to the apartment house they told her they would like to go into apartment 14 but that they didn't want to break in the door. She then said, 'I didn't want them to. * * * I told them I would get the door open for them. * * *' She went to the carport area and found Vasquez's car improperly parked. She then went to apartment 14 and asked Vasquez to move the car. She also testified that before Officer Leeds entered Vasquez's apartment he displayed his badge and stated that he was a policeman.

To show the evidentiary refutation of appellant's assertion that Mrs. Van Buren's cooperation with the officers was coerced, we quote the following portion of her testimony: 'Q. Did the officers ever request you specifically to get Mr. Vasquez out of the apartment? A. Asked me to get him out? Q. Yes. A. Not that I know of. I know they wanted to go in the apartment. Q. But they never asked you to--A. Not that I know of. I can't recall. Q. You volunteered to get the door open? A. Yes, I did. I volunteered myself. * * * Q. Just a couple more questions, Mrs. Van Buren. Actually, you volunteered because you didn't want any door broken down, isn't that correct? A. Yes, and I was trying to help the law. Q. They wanted to gain entry into the apartment. You suggested that you get Mr. Vasquez to come out, open the door so they wouldn't have to break it in? A. Yes.' (Emphasis added.)

The following from the testimony of Officer Ridenour given in response to questions put to him by the Deputy District Attorney is quoted because of its significance in showing the presence of the exigent circumstances which justified the officers' entry in the manner indicated by the evidence to the extent that there was any lack of literal compliance with the requirements of section 1531:

'BY MRS. HAM: Q. Was there any particular reason why you made entry in the manner you did at that particular time with a search warrant? A. Yes. Q. Could you tell us why? * * * A. One reason it was effected in this manner was the fact that the contraband that we were going to apprehend was narcotics named in the search warrant, narcotics being an easy item to dispose of; and we did it in this manner in fear that if we did not that contraband would be destroyed. Another reason was that on a prior occasion I had effected an arrest on Arthur Vasquez, and at this time he stated that if he had narcotics in the house he would have gotten rid of it. Also, on a prior arrest, I had knowledge--which I saw for myself--I saw a shotgun in Mr. Vasquez' home, which he stated he owned, and also I knew of a rifle. ² Also entered in this manner because we had stated, 'Police officers.' My partner had a badge in his hand, which I saw; and at this time as we was moving toward the door, the door started to close, and if--I felt that if we did not enter in this manner by going through an open door, the door would be closed and locked and contraband would be destroyed.'

Substantial Compliance With Section 1531

In the recent decision of our Supreme Court in Greven v. Superior Court, 71 A.C. 303, 78 Cal.Rptr. 504, 455 P.2d 432, we find a complete exposition of the purpose meaning and effect of sections 844 and 1531 of [1 Cal.App.3d 774] the Penal Code. In the same decision there is a painstaking analysis of precedents dealing with the question whether there was substantial and sufficient compliance with the requirements of those sections in a variety of factual situations.

Among the earlier decisions referred to in Greven as cases in which the Supreme Court 'has upheld (entries) which did not strictly comport with statutory requirements' but which were effected in a manner constituting 'substantial compliance' are the following: People v. Marshall, 69 Cal.2d 51, 55--56, 69 Cal.Rptr. 585, 442 P.2d 665; People v. Cockrell, 63 Cal.2d 659, 665--666, 47 Cal.Rptr. 788, 408 P.2d 116; People v. Carswell, 51 Cal.2d 602, 607, 335 P.2d 99; and People v. Martin, 45 Cal.2d 755, 762--763, 290 P.2d 855.

In distinguishing the cited cases from the case then at hand, the Supreme Court used the following language (71 A.C. at pp. 307--308, 78 Cal.Rptr. at p. 507, 455 P.2d at p. 435):

'(I)t is true that in the cited cases this court has held that the requirements of section 844 were satisfied by 'substantial compliance' which fell short of strict literal compliance. In each of these cases, however, the officers prior to entry not only gave notice of their presence through knocking or some other means But also identified themselves as police officers. It was the second requirement of section 844, to wit, that the officers explain 'the purpose for which admittance was desired,' which we undertook to apply in light of the facts and circumstances of the case in order to determine whether 'substantial compliance' had been achieved in the absence of an express announcement of purpose. In People v. Rosales, Supra, 68 Cal.2d 299, at page 302, 66 Cal.Rptr. 1, 437 P.2d 489, at page 491, we recently restated the rationale of these cases: 'Such identification (i.e., identification as police officers without an express announcement of purpose) 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.''

It will be noted that twice in the foregoing quotation the Supreme Court refers to 'identification' alone, without any mention of the future necessity of demand for admittance, as being sufficient to constitute substantial compliance where the officers' purpose is otherwise made clear. In People v. Cockrell, Supra, 63 Cal.2d 659, 666, 47 Cal.Rptr. 788, 792, 408 P.2d 116, 120, the court said: 'Since it appeared that a sale of marijuana had been made in the Cockrells' home only minutes before the officers requested admittance, 'the purpose for which admittance' was 'desired' was reasonably apparent.'

In People v. Carswell, Supra, 51 Cal.2d 602, 335 P.2d 99, the officers had 'knocked and announced that they were police officers but received no reply.' Apparently no demand for admittance was made but the ensuing entry was held not in violation of section 844.

Furthermore, and quite apart from the fact that the officers did not forcibly open the door but merely prevented the open door from being closed, the officers in the case at bench had announced their identity and appellant's immediate response in attempting to close the door rendered futile any effort on the part of the officers to effect a strict and literal compliance with section 1531. (Cf. People v. Rosales, 68 Cal.2d 299, 302, 66 Cal.Rptr. 1, 437 P.2d 489; ...