People v. Satterfield ( 1967 )

CHRISTIAN, J.

After a nonjury trial, defendant appeals from a judgment of conviction of violation of section 11500 of the Health and Safety Code (possesion of heroin). The evidence most favorable to the judgment establishes that appellant had in his possession at the time of his arrest a small quantity of heroin and a kit of paraphernalia to be used for injection of that narcotic. The only question in the appeal is whether the officer who broke into appellant’s home to make the arrest had reasonable cause to believe appellant guilty of a felony.

On January 7, 1965, Steven Priolo and Steven Levine were arrested in the residence at 4549 Lomina Street, Los Angeles. A search of the house turned up a quarter-ounce of marijuana in the northeast bedroom. This information Avas communicated to Sanchez and Hill, experienced deputies assigned to the narcotics detail in the Los Angeles County sheriff's department. These officers interrogated Priolo and Levine on January 9. According to the informants, Levine had been liA'ing at 4549 Lomina Street, and Priolo was visiting there when both were arrested. They told the officers that the room in which the marijuana had been found was appellant’s bedroom. Priolo also stated that on four occasions prior to January 7 he had bought heroin from appellant. Deputy Sanchez testified that he considered Priolo a reliable informant but gave no basis for his opinion.

After talking to the informants, Sanchez “ sent for record checks” and “obtained a record check from C.I.I. and the F.B.I.” concerning appellant. The officer testified that a “record check” is also known as a “make sheet” and, in substance, recites “the charge, the date, the organization that arrested him and the disposition. . . .’’If appellant’s make sheet contained any such information, the witness was not asked to relate it in his testimony and respondent’s case draws no support from it.

Deputy Hill testified that Deputy Sanchez told him “that he had a conversation with a neighbor of the Defendant and Deputy Sanchez stated that the neighbor had told him that the Defendant had acted suspiciously.” The conversation with the neighbor took place three weeks after the disclosures by Priolo and Levine.¹

At this point the two officers drove to 4549 Lomina Street about noon on February 1, 1965. Both were in plain clothes ; their ear was an “undercover” police vehicle. They did not have a search warrant or a warrant for appellant’s arrest. The officers did not originally intend to enter the house or arrest appellant; they wanted to talk with him about the marijuana found in the bedroom three weeks earlier and about his “purported activities in narcotics.’’

The officers saw appellant driving in the neighborhood and followed him to the driveway at 4549 Lomina Street, where he turned in. Deputy Hill recognized him from a police “mug shot.” They drove past, returned, and drove into the driveway. By that time appellant’s vehicle had been parked in a detached garage opposite the rear of the house, and appellant was walking from the garage to the house. As the officers ’ car entered the driveway, appellant “looked up and he ran” to the house. Deputy Hill, driving the police ear, accelerated and drove it to the rear of the house. He yelled, “Sheriff’s Department” after he had stopped the ear and alighted, and just as appellant slammed the back door of the house from the inside. Deputy Sanchez yelled, “Sheriff’s officers,” but after appellant had slammed the door.

Through an open window Deputy Sanchez heard a voice in the house say, “The law. It’s the law.” Deputy Hill also heard a voice, but testified that the words were, “ It’s the law. The law is here.” Both officers heard some “scuffling and running” noises in the house. A female voice inside said “Where? Where, outside?” Sanchez then heard sounds of an opening window and a screen being ripped. He ran around the house and intercepted a woman, one Denise Whalen, who was crawling out of a window. She was placed under arrest.

Meanwhile, Deputy Hill formed the opinion that appellant was attempting to destroy narcotic evidence inside the house. The opinion was based upon the circumstances we have just related and his knowledge, derived from his experience, that a common method of destroying narcotics is to flush them down a toilet after which they cannot be recovered. Hill did not believe he had time to get a search warrant or do anything else ‘‘ to prevent the destruction of narcotics except enter that house. ’ ’ Accordingly, he ran to the front door, kicked it open without announcement and entered.

When Deputy Hill broke in, he saw appellant at a telephone, screaming incoherently into it and holding his left hand in a coat pocket. The officer approached him at gunpoint, told him he was under arrest, and grabbed his coat. Appellant broke loose and ran out the front door and across the front lawn. Running into a neighboring back yard with Hill in close pursuit, appellant withdrew an object from his pocket and threw it over a fence into another yard. Hill caught him and subdued him after a scuffle.

Sanchez responded to Hill’s call for help and at the point where appellant had thrown the object from his pocket they recovered two cellophane bags, each of which held two paper bindles of heroin, and a cloth package containing an addict’s typical kit for preparation and injection of heroin. The officers then searched the house and found other incriminating articles.

The trial court admitted in evidence the material thrown awa,y by appellant, expressing the view that the evidence was discovered because appellant voluntarily disclosed it without a search.² This theory was erroneous. Evidence obtained in consequence of a suspect’s voluntary act is unlawfully seized if the act was the “direct result” of illegal police conduct. (People v. Dixon (1956) 46 Cal.2d 456 [296 P.2d 557] [contraband obtained when suspect took key to hiding place from her dress and attempted to swallow it while in custody after unlawful arrest] ; Badillo v. Superior Court (1956) 46 Cal.2d 269 [294 P.2d 23] [suspect ran out of a house unlawfully entered by officers and threw away a package of heroin] ; People v. Stewart (1966) 241 Cal.App.2d 509 [50 Cal.Rptr. 630] [suspect concealed contraband in police car while en route to sheriff’s office after unlawful arrest based on uncorroborated information from untested informant].) Here the evidence thrown away by appellant was unlawfully obtained unless the forcible entry into the house was lawful.

Deputy Hill had neither a warrant nor the consent of the occupants; therefore the entry was lawful only if he had reasonable cause, based on all of the facts known to him at that moment, to arrest appellant inside the house. (People v. Shelton (1964) 60 Cal.2d 740, 744 [36 Cal.Rptr. 433, 388 P.2d 665].) The admissibility of the evidence seized in the house later, after the officers reentered, turns upon the same question. The search was “substantially contemporaneous” with appellant’s arrest and it took place on the premises where the arrest was made. It was therefore lawful if the arrest to which it was incident was lawful. (People v. Cockrell (1965) 63 Cal.2d 659, 666 [47 Cal.Rptr. 788, 408 P.2d 116].)

An arrest without a warrant is lawful if made by a peace officer who has reasonable cause to believe that the person arrested has committed a felony. (Pen. Code, § 836.) “ Reasonable or probable cause exists when the facts and circumstances within the knowledge of the officers at the moment of the arrest are sufficient to warrant a prudent man in believing that the defendant has committed an offense. (Citations.) The question of probable cause to justify an arrest without a warrant must be tested by the facts which the record shows were known to the officers at the time the arrest was made.” (People v. Talley (1967) 65 Cal.2d 830, 835 [56 Cal.Rptr. 492, 423 P.2d 564].)

The burden of showing reasonable cause rests upon the prosecution. (People v. Shelton, supra, 60 Cal.2d 740, 744.) Therefore, where the prosecutor failed to establish the reliability of Priolo and Levine, we must regard them as untested informants. Likewise, where Deputy Hill was not asked whether he heard a window being raised and the tearing of a screen, we are obliged to assume that he knew nothing about Denise Whalen’s escape through the window when he decided to enter the house and arrest appellant.

The sufficiency of Deputy Hill’s knowledge, at the time when the two officers first arrived, to establish probable cause for an arrest may be questioned for two reasons: (1) None of the informers wras of proven reliability. (People v. Talley (1967) 65 Cal.2d 830, 835-836 [56 Cal.Rptr. 492, 423 P.2d 564] ; People v. Prewitt (1959) 52 Cal.2d 330, 337 [341 P.2d 1].) There was some corroboration of the informants’ disclosures (though not as to an incriminating fact) in that the officers identified appellant from a “mug shot” and personally observed him entering the house identified by the informants. (2) The stories of the informers did not specifically show that they had reason to believe appellant was currently violating narcotics laws. “The critical fact is present violation of the law, not past violation.” (People v. West (1965) 237 Cal.App.2d 801, 807 [47 Cal.Rptr. 341] ; also see People v. Privett (1961) 55 Cal.2d 698, 702 [12 Cal.Rptr. 874, 361 P.2d 602].) Here the information supplied by Priolo was that he had purchased heroin from appellant four times, never less than three weeks before the arrest. The information that the room in which marijuana had been found three weeks before the arrest was appellant’s bedroom was also not contemporaneous. We need not determine whether in these circumstances the information was too stale to justify an arrest, because it was in any event not shown to be reliable. However, this untested information concerning repeated incidents of sale or possession of narcotics was enough to create a suspicion that appellant was continuously and currently violating narcotics laws. Thus the officers were justified in visiting appellant’s residence for the purpose of interrogating him. (People v. Michael (1955) 45 Cal.2d 751, 754 [290 P.2d 852]; People v. Gamboa (1965) 235 Cal.App.2d 444, 447 [45 Cal.Rptr. 393].)

It was in the foregoing context of reasonable suspicion that Deputy Hill saw appellant run into the house and slam the door when he recognized Hill and Sanchez as law officers. Appellant’s announcement inside the house, “The law. It’s the law,” established the fact that the occupants were aware that the visitors were plain clothes officers and the loud scuffling and running which ensued showed that the reaction was that of fright and consternation.

Where a suspect merely slams the door shut in the face of investigators after having been informed that they are police officers, there is no probable cause for arrest in the absence of something more. There are many reasons other than guilt of a felony for a suspect to refuse a policeman permission to enter his residence. (Tompkins v. Superior Court (1963) 59 Cal.2d 65, 68 [27 Cal.Rptr. 889, 378 P.2d 113] ; Lewis v. Superior Court (1964) 226 Cal.App.2d 102 [37 Cal.Rptr. 773].) It is also true that appellant’s announcement, “The law. It’s the law” is not alone enough to provide reasonable cause for an entry and arrest. (Lewis v. Superior Court, supra.) In Lewis there was no evidence of furtive conduct apart from the suspect’s slamming the door and saying “cops.” Here there was evidence of furtive conduct in appellant’s flight into the house, his agitated announcement, and the scuffling and running which ensued. Furtive conduct can substantiate information derived from an untested informant. (People v. Talley, supra, 65 Cal.2d 830, 836; People v. Landry (1964) 230 Cal.App.2d 775, 780 [41 Cal.Rptr. 202].)

In the Landry ease, the police interrogated a girl who appeared to be under the influence of narcotics. She explained that she had spent the evening at defendant’s apartment. Officers went to the apartment with the girl, and defendant opened the door in response to the girl’s knock. When he observed that there were uniformed officers present, he uttered an obscene comment about the “cops” and dashed back into the room, leaving the door open. Believing that the suspect was attempting to destroy narcotics, the officers entered and followed him into the bathroom where he threw marijuana out of the window. The court held that “defendant’s furtive actions in rushing back into the apartment, coupled with his derogatory remarks about the police, implied guilt of some sort to one of the police officers; the girl’s information that she had spent the evening in the apartment and the officer’s belief that she had secured narcotics there combined to provide substantial corroboration to justify the officer’s conclusion that defendant was rushing back into the apartment for the purpose of disposing of any narcotics that might remain. With these thoughts in mind it was reasonable for the officer to enter the apartment.” (230 Cal.App.2d at 780.)

The present case differs from Landry in that here the informers’ stories did not relate an event in the immediate past. However, there is no rigid formula for probable cause, and information from diverse sources may in sum amount to probable cause though no single item of information meets the test. (People v. Gamboa, supra, 235 Cal.App.2d 444, 448.) Appellant’s reaction to the arrival of the officers caused Deputy Hill reasonably to believe that illicit activity was being carried on in the house. The previously acquired information told Deputy Hill what the activity was, and his experience as a narcotics officer warned him that unless he made an immediate arrest and search the contraband would be destroyed. We hold that Deputy Hill was justified in believing appellant was guilty of possessing narcotics. Therefore, the evidence seized in the search incidental to the arrest was admissible.

The judgment is affirmed.

Devine, P. J., concurred.

1 When Deputy Hill so described the conversation between Sanchez and the neighbor, appellant moved to strike his testimony, ‘ ‘ regarding what the neighbor said” as being hearsay, not related to probable cause and a conclusion of both the neighbor and Deputy Sanchez. The trial court "overruled” the motion. Earlier, Deputy Sanchez himself described the conversation with the neighbor. His recital was substantially more factual than the Hill version, but the trial court struck the Sanchez testimony upon appellant’s motion. Although the only remaining evidence of any disclosures by the neighbor-informant is Deputy Hill’s version—once removed and such as it is—the unstrieken testimony of Deputy Sanchez shows that he talked to the neighbor by telephone on January 29, 1965.

2 In denying a motion to strike the evidence, the trial judge declared: "I can’t get off this approach to the problem: Assuming the arrest was entirely unlawful, the evidence in this ease is not the result of any search of the premises or person. The evidence in this case was discovered by the officers from a voluntary display by the defendant when he threw it over the fence. ’ ’