People v. Carrillo

TOBRINER, J.

Charged by information with possession of heroin for sale (Health & Saf. Code, § 11500.5) defendant waived a jury trial; the court found him guilty of possession of heroin, a lesser but necessarily included offense (Health & Saf. Code, § 11500). Defendant now seeks reversal of his conviction, contending that it rests upon evidence obtained in an illegal search and upon a confession obtained in violation of his rights to counsel and to remain silent. As we explain below, both of the theories upon which defendant challenges the legality of the search depend upon disputed questions of fact decided adversely to him in the trial court; as to the confession, the record shows that defendant confessed spontaneously, not as the result of interrogations designed to elicit incriminating statements.

On the morning of January 15, 1963, Sergeant Ginder of the Los Angeles police department learned from defendant’s parole officer that defendant had missed his Nalline test, a condition of his parole. Accordingly, on the afternoon of the same day, Sergeant Ginder and Parole Officer Jensen, together with Sergeants Slagle, Leeds, Tralle, and Vernon, went out to arrest defendant at the residence of his “ ex-common-law wife,” Rose Mesa Juarez. Mrs. Juarez lived in a two-story dwelling with her six children. Defendant resided with his brother a few blocks away, but visited Mrs. Juarez’s nearly every day to see his two daughters.

The record contains conflicting evidence as to the manner in which the police entered Mrs. Juarez’s home and arrested defendant. Officer Jensen and Sergeants Vernon and Slagle apparently approached the dwelling from the front; the other three officers went to the rear. The officers at the front knocked on the door and, at some point, entered the premises through that door. Because of conflicting testimony, however, we cannot know exactly when and by what means they entered. Sergeant Ginder testified that he was looking through the screen door at the rear when Officer Jensen knocked at the front door. He said that he saw defendant “moving rapidly through the kitchen,” and that he “opened the screen door and grabbed him.” As to what next occurred Sergeant Ginder testified, “At that time Mr. Jensen and the officers that were at the front door were coming through the front door. ...” Sergeant Slagle testified that he watched the two officers enter the front door and that he then entered through the rear door following the other officers. Defendant testified that he was in the kitchen with Mrs. Juarez and her sister when the police suddenly entered and arrested him. He said that one of the officers who came in the rear door then unlocked the front door and let in the others.

The record also contains conflicting testimony as to whether Mrs. Juarez consented to the ensuing search and, if so, as to the attendant circumstances of her consent. After apprehending defendant, Sergeant Ginder “escorted” him to the front room; the police all gathered in that room, placed defendant in the custody of Parole Officer Jensen, and commenced an exhaustive search of the premises. Sergeant Ginder testified that, a few minutes after the officers entered, he spoke with Mrs. Juarez and that she gave him permission to search. Sergeant Slagle testified that Mrs. Juarez said that there were no narcotics in the house and told the officers “to go ahead and look and see if they could find any. ’ ’ On the other hand, both Mrs. Juarez and her sister testified that the police did not ask for, and Mrs. Juarez did not give, permission to search. They both indicated that Mrs. Juarez was considerably upset at the time.

The search resulted in the discovery of the heroin introduced against defendant at his trial. After approximately one and a half hours, the officers discovered a child ⅛ pair of trousers; in the pockets they found heroin. They confronted defendant with it; he admitted it was his. At the trial defendant testified that he told the officers the heroin belonged to him in order to protect the people in the house from arrest.

The trial court rejected defendant’s objection to the introduction into evidence of the heroin. Defendant contended that Mrs. Juarez had not consented to the search and that therefore the heroin was the inadmissible fruit of an illegal search. Holding that Mrs. Juarez had in fact consented to the search, the court overruled the objection.

The finding implicit in the trial court’s ruling forecloses the arguments defendant now urges as to the illegality of the search. He contends that even if Mrs. Juarez gave a verbal assent to the search, the record establishes an illegal entry by the police which vitiates her assent. In the alternative, he contends that her consent could not he effective because of the assertion of authority implicit in the police entry and presence in her home. Neither of these contentions rests on any new proposition of law and either of them, if supported by the record, would require reversal. The record before us, however, contains conflicting evidence on both of these crucial issues which compose no more than factual conflicts that the trial court necessarily determined adversely to defendant. Since substantial evidence supports these findings we must affirm.

Defendant’s contention that the alleged illegal entry of the police negates the effect of the subsequent assent to the search rests upon People v. Haven (1963) 59 Cal.2d 713 [31 Cal.Rptr. 47, 381 P.2d 927], and upon Penal Code section 844. Haven holds that “A search and seizure made pursuant to consent secured immediately following an illegal entry or arrest ... is inextricably bound up with the illegal conduct and cannot be segregated therefrom.” (P. 719.) Penal Code section 844 forbids a peace officer to break into a house to arrest a felon unless he has first “demanded admittance and explained the purpose for which admittance is desired.” Thus, as defendant correctly urges, consent to search given after an entrance which fails to comply with Penal Code section 844 cannot be effective. (People v. Arellano (1966) 239 Cal.App.2d 389, 390 [48 Cal.Rptr. 686].)

As we explained in People v. Maddox (1956) 46 Cal.2d 301, 305-307 [294 P.2d 6], however, Penal Code section 844 is simply a codification of the common law and does not require literal compliance with its terms where “the officer’s peril would have been increased or the arrest frustrated.” "We recognized that “The officer’s compliance with [this section] will delay his entry, and cases might arise in which the delay would permit destruction or secretion of evidence. ...” Since “Suspects have no constitutional right to destroy or dispose of evidence, and no basic constitutional guarantees are violated because an officer succeeds in getting to a place where he is entitled to be more quickly than he would, had he complied with section 844,” we concluded “that when there is reasonable cause to make an arrest and search and the facts known to him before his entry are not inconsistent with a good faith belief on the part of the officer that compliance with section 844 is excused, his failure to comply with the formal requirements of that section does not justify the exclusion of the evidence he obtains.” (See also Ker v. California (1963) 374 U.S. 23 [83 S.Ct. 1623, 10 L.Ed.2d 726].)

The record here contains substantial evidence to support the finding, implicit in the trial court’s ruling, that under People v. Maddox, supra, 46 Cal.2d 301, the police entry did not violate Penal Code section 844. Thus that evidence sustains its finding that Sergeant Ginder entered the premises in the reasonable belief that defendant possessed narcotics and that only such an entry would prevent their destruction by defendant. When the ofScers approached the premises they knew that defendant was on parole from a conviction for possession of heroin and that he had failed to report for his Nalline test. Consequently, they had reason to believe that he then possessed narcotics. Sergeant Cinder, one of the officers at the rear door, testified that he saw defendant moving quickly through the kitchen at about the same time that another officer knocked on the front door. The sergeant then entered and “grabbed” defendant.

Our decisions, as well as those of the United States Supreme Court, have more than once recognized the ease and speed with which the disposal of narcotics can be accomplished. (See, e.g., Ker v. California, supra, 374 U.S. 23, 40; People v. Manriquez (1965) 231 Cal.App.2d 725, 728 [42 Cal.Rptr. 157]; People v. Holloway (1964) 230 Cal.App.2d 834, 840 [41 Cal.Rptr. 325]; People v. Samuels (1964) 229 Cal.App.2d 351, 361 [40 Cal.Rptr. 290].) In view of the above facts we must conclude that substantial evidence supports a finding that the police entry was reasonably necessary to prevent the destruction of contraband; the entry was therefore not illegal.

Defendant argues that even if the facts justify Officer Ginder’s entrance, no evidence shows any justification for the officers who entered through the front door, since they could not have seen defendant “moving rapidly” through the kitchen. The record contains some evidence to support this possibility; however, defendant himself testified that the officers who came in through the rear door unlocked the front door and let in the other officers.

We must also reject defendant’s contention that the police entry and presence in Mrs. Juarez’s home rendered her consent to the search ineffective. The trial court found that she consented to the search; it is implicit in that finding that it was an effective consent; on the record before us we are bound by that finding. It is true that in People v. Michael (1955) 45 Cal.2d 751, 754 [290 P.2d 852], we recognized “that the appearance of four officers at the door may be a disturbing experience and that a request . . . made to a distraught or timid woman might under certain circumstances carry with it an implied assertion of authority that the occupant should not be expected to resist. ” But this issue of fact, which we must assume obtained the consideration of the trial court, was resolved against defendant.

We surely cannot hold that, as a matter of law, Mrs. Juarez consented to the search in response to an assertion of authority implicit in the police presence in her home. It is true that the record indicates that the police appeared rather suddenly and that some -mnfusion ensued; that Mrs. Juarez and her sister testified that Mrs. Juarez was upset, and that they also testified that Mrs. Juarez did not give any consent to the search. On the other hand, the police officers unequivocally testified that Mrs. Juarez said to “go ahead” and search, that “she didn’t care.” The record thus supports a finding of ail express and effective consent to search.

Finally, we find no merit in defendant’s contention that the introduction of his confession violated the rule of People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]. We have said that when the “officers have arrested the suspect and the officers have undertaken a process of interrogations that lends itself to eliciting incriminating statements, the accusatory or critical stage has been reached and the suspect is entitled to counsel.” (People v. Stewart (1965) 62 Cal.2d 571, 577 [43 Cal.Rptr. 201, 400 P.2d 97].) The record here, however, establishes that defendant’s statement constituted a spontaneous response to the discovery of the narcotics that was uttered before the advent of the accusatory stage. Thus, the trial court committed no error in admitting it into evidence. (People v. Dorado, supra, at p. 354.)

The judgment is affirmed.

Traynor, C. J., McComb, J., Mosk, J., and Burke, J., concurred.