RATTIGAN, J. I dissent. I do not agree that Deputy Hill, at the moment he kicked the door open, had reasonable cause to make an arrest inside the house, because I do not agree that he had reasonable cause to believe, at that moment, that there were narcotics in appellant’s possession on the premises.
Until the moment he kicked the door open, Deputy Hill had no knowledge of any specific prior crime in which appellant was implicated. Therefore, this was not a case where entry was justified because the officer had reasonable cause to believe (Pen. Code, § 836, subd. 3) that a person within the premises was guilty of a felony committed previously and elsewhere. (Cf. People v. Talley (1967) 65 Cal.2d 830, 834-837 [56 Cal.Rptr. 492, 423 P.2d 564]; People v. Phillips (1966) 240 Cal.App.2d 197, 203 [49 Cal.Rptr. 480]; People v. Harris (1964) 231 Cal.App.2d 214, 217-218 [41 Cal.Rptr. 642].) In this case, Hill could validly arrest appellant—and enter the premises to do it—-if he had reasonable cause to believe that [278]appellant had committed a public offense in the officer’s presence (Pen. Code, § 836, subd. 1) or to believe that appellant had committed a felony (id., subd. 3); but, in either ease, only if he had such reasonable cause as to a crime committed on the scene and contemporaneous with the arrest.
In the context of fact, such crime was necessarily the possession of narcotics, because it could have been nothing else. Therefore, Deputy Hill could not have had reasonable cause to arrest for possession unless he could reasonably have concluded from all the circumstances that there were narcotics in the house. According to his testimony1 this was his conclusion. In my opinion, his conclusion was unreasonable, under [279]the circumstances known to him at the moment he kicked the door open.
The circumstances known to Deputy Hill at that time derived from the informants’ disclosures, from the investigation of appellant’s criminal record, and from what he saw and heard at the house before he entered it.
The informants’ disclosures did not reasonably warrant Deputy Hill’s conclusion that there were narcotics in appellant’s possession inside the house. If narcotics were there, they were either there — in the house—before appellant entered, or he carried them inside upon his person when he ran through the back door. The only information associating the house with narcotics had come from the informants Priolo and Levine. Their joint disclosure identified the location where marijuana had been seized on January 7 as appellant’s bedroom: but it went no further.
No informant attributed possession of the marijuana, or knowledge of its location or of its existence, to appellant. No informant placed appellant in the bedroom, or even in the house, at or near the time the marijuana was found in the bedroom. No informant said that appellant actually lived in the residence, at least in the sense that he was frequently there. No informant suggested any pattern of behavior on appellant’s part, any recurrent activity, any course of conduct, from which Deputy Hill might have concluded that narcotics would have reappeared on the premises after the seizure on January 7. Absent such information, and since we may assume that the January 7 search swept the house clean, I do not believe that the presence of marijuana on that date gave Deputy Hill reasonable cause to believe that contraband ivas in the house three weeks later.
Deputy Hill might have reasonably concluded that narcotics Avere in the house on February 1 if he had reason to believe that appellant was carrying them on his person when he fled from the officers. The informants’ disclosures, however, did not reasonably warrant such belief. As the majority opinion points out, the stories did not shoAV that the informants had reason to believe appellant was currently violating narcotics laws. Only Priolo disclosed anything regarding possible criminal activity by appellant; but (and disregarding the absence of reliability in himself or of timeliness in his disclosure) nothing he said in this regard supported the belief that appellant had narcotics on his person—or, hence, in the house—on February 1.
[280]And the investigation by the officers—if it can be called that—did not reasonably warrant such belief. During the three weeks which followed the interview of Priolo and Levine, a police surveillance of the premises at 4549 Lomina Street might have improved the officers ’ information concerning the prospect of narcotics at the address; but the record shows that none was undertaken. Nothing, in fact, occurred during that period except that Deputy Sanchez looked for, and apparently found, that appellant had a criminal record. Since its contents were not disclosed to the trial court, the record added nothing to suggest that narcotics were in the residence, or entered it on appellant’s person, on February 1.
If, then, there was reasonable cause to believe that narcotics were in the house on February 1, it had to develop from Deputy Hill’s observations when he arrived. The majority opinion concludes that Hill’s observations established reasonable cause to arrest because they crystallized his prior information. Hill himself based his critical decison to enter the house exclusively upon his observations, and disregarded his- prior information: this, at least, is the fair import of his testimony on the subject. (See emphasized answers, footnote 1, supra.) By anyone’s estimate, what he saw and heard included “furtive conduct.” Again, however, I cite the recurrent theme that what he saw and heard did not reasonably warrant the conclusion that appellant was in possession of narcotics inside the house.
It is not to be disputed that furtive conduct by a suspect will contribute to reasonable cause for his arrest. The question here, though, is whether appellant’s conduct contributed to reasonable cause to arrest for possession of narcotics at the time. Thus, we may immediately distinguish such eases as People v. Talley, supra, 65 Cal.2d 830, where the officer was looking for the perpetrator of an offense already committed and the suspect’s furtive conduct led the officer to believe that he had found his man. In another array of eases, as here, the question was whether the suspect was in possession of contraband ; but the “furtive conduct” was itself indicative of possession because the suspect attempted to discard, conceal or destroy something in the arresting officer’s presence.2 In [281]other eases, the suspect’s visible attempt to conceal possession was held to contribute to reasonable cause for his arrest because it corroborated information previously received from informants or similar prior sources.3
The last mentioned category of cases—those in which a suspect’s conduct corroborated prior information which had generated some reason to believe that contraband was present —includes People v. Landry (1964) 230 Cal.App.2d 775 [41 Cal.Rptr. 202], cited and relied upon in the majority opinion. In the Landry ease, the officers entered an apartment to arrest the occupant after he referred to “cops” and ran to the bathroom from the apartment door. The officers had been led to the apartment by a girl who was freshly under the influence of narcotics and who told them she had spent the evening there.
The majority opinion observes that the present case differs from Landry “in that the informers’ stories did not relate to an event in the immediate past.” I agree, but I consider the difference to be decisive. In Landry, the officers’ information concerning “an event in the immediate past” reasonably warranted the belief that narcotics were in the apartment, which belief was in turn corroborated by the suspect’s furtive conduct. In the case before us, with no information at all concerning an immediately past event, appellant’s furtive conduct corroborated nothing. It seems to me that the Lancbry decision is, thus, wholly distinguishable on its facts.
[282]In the Landry decision, also, Mr. Justice Burke (then Presiding Justice of the Landry court) made this observation (230 Cal.App.2d at pp. 779-780) : ‘‘ Thus, the occurrences at the door of defendant’s apartment become crucial on the issue of probable cause. Had the defendant merely opened the door, observed the officers and slammed the door shut, it might well be contended that probable cause for entry was still lacking and that a forcible entry would, have been unjustified. (Tompkins v. Superior Court, supra, 59 Cal.2d 65, 67; Lewis v. Superior Court, 226 Cal.App.2d 102, 104 [37 Cal.Rptr. 773]; People v. Cedeno, supra, 218 Cal.App.2d 213 [32 Cal.Rptr. 246].) From the obscene remark, its intonation, and the reference to the officers, after defendant had stepped out into the open doorway, it was made quite apparent that he saw the officers and wanted no transactions with them; had he simply so indicated and shut the door, a forcible entry would not have been justified under the cases cited above.” (Italics added.) In the instant ease, in my opinion, appellant’s conduct in Deputy Hill’s presence was closer to the actions suggested in the quoted hypothesis—as not justifying a forcible entry—than to what the Landry suspect actually did.
I agree with the majority that the statement “It’s the law. The law is here,” considered alone, would not justify entry and arrest. I cannot find in the remark, either, any reasonable cause to believe that there were narcotics present. (Compare remarks indicating presence of contraband in, e.g., People v. Garcia (1965) 239 Cal.App.2d 58, 59 [48 Cal.Rptr. 305] [“It’s the police; flush the stuff.”]; People v. Jefferson (1964) 230 Cal.App.2d 151, 152 [40 Cal.Rptr. 715] [“Get rid of the stuff.”] ; People v. Verrette (1964) 224 Cal.App.2d 638, 640 [36 Cal.Rptr. 819] [“Ester, the cops, destroy.”]; and see Lewis v. Superior Court (1964) 226 Cal.App.2d 102, 103, 104 [37 Cal.Rptr. 773] [“Cops!”], cited in the majority opinion.)
Deputy Hill also heard “ some loud scuffling noise from the house.” If the “scuffling” noise contributed to his decision to break into the house, he did not so testify. (See emphasized answers, footnote 1, supra.) Again, I do not find, in the noise, any reasonable cause to believe that there were narcotics in appellant’s possession.4 Deputy Hill properly recognized that [283]narcotics could be quickly and irretrievably disposed of through a toilet. But a “scuffling” noise does not so point to the disposal of contraband, through a plumbing outlet, as to indicate the presence of contraband. In the various decisions holding that the imminent use of plumbing contributed to reasonable cause to enter and arrest on narcotics charges, it appears that the officers had some prior reason to believe that narcotics were present; or that the suspect actually used, or attempted to use, plumbing fixtures; or both.5
The Attorney General notes that Deputy Hill, in forcibly entering the house to make an arrest, did not comply with the statutory requirement that he first demand admittance and explain his purpose. (Pen. Code, § 844.) It is argued, on the authority of People v. Maddox (1956) 46 Cal.2d 301 [294 P.2d 6], that noncompliance—and the entry itself—were justified because of the prospect that evidence would be destroyed inside the house.
The Maddox rule is not to be disputed: but in Maddox and in all the cases following it the noncomplying officer had reasonable cause to believe, before he entered the premises, that evidence was in fact inside. (People v. Maddox, supra, 46 Cal.2d at p. 303 [visitor had received narcotics injection on the premises minutes before the officers entered when occupant did not respond to their knock] ; see also, e.g., People v. King (1965) 234 Cal.App.2d 423, 433 [44 Cal.Rptr. 500] ; People v. Aguilar (1965) 232 Cal.App.2d 173, 177 [42 Cal. Rptr. 666] ; and see People v. Arellano (1966) 239 Cal.App.2d 389, 392-393 [48 Cal.Rptr. 686].) Consequently, these cases, in my view, do not support respondent’s position on reasonable cause to arrest: an officer does not have reasonable cause to [284]anticipate the destruction of evidence unless he has reasonable cause to suspect its presence.
I have concluded that Deputy Hill did not have reasonable cause to arrest appellant, and to enter the house by force to do it, because nothing the officer knew or saw or heard reasonably warranted the belief that narcotics were in appellant’s possession inside the house. If Deputy Hill did not have reasonable cause to arrest, the entry was unlawful. (People v. Pereda (1964) 229 Cal.App.2d 814, 816-819 [40 Cal.Rptr. 566] ; Lewis v. Superior Court, supra, 226 Cal.App.2d 102, 104; Hood v. Superior Court (1963) 220 Cal.App.2d 242, 247 [33 Cal.Rptr. 782] ; People v. Cedeno (1963) 218 Cal.App.2d 213, 226-227 [32 Cal.Rptr. 246] ; People v. Haven (1963) 59 Cal.2d 713, 715-718 [31 Cal.Rptr. 47, 381 P.2d 927] ; People v. O’Neill (1960) 187 Cal.App.2d 732, 734 [10 Cal.Rptr. 114]; People v. Thymiakas (1956) 140 Cal.App.2d 940, 943 [296 P.2d 4].)
In each of the entry eases just cited, the entering officers, in my opinion, had more substantial prior information—of illegal activity in the entered premises—than did Deputy Hill in the instant ease; and, in the Lewis, Hood, Cedeno, O’Neill and Thymiakas cases, the suspect engaged in patently furtive conduct before the entry was made. In the light of these decisions and my evaluation of the evidence, I do not believe that appellant passed beyond the pale of the Fourth Amendment when he ran into his own home.
Apart from my own evaluation of the evidence establishing reasonable cause to make an entry and arrest in this ease, I also have in mind the viewpoint from which the trial court evaluated the same evidence. I agree with the majority that evidence obtained in consequence of a suspect’s voluntary act is unlawfully seized if the act was the “direct result” of illegal police conduct. I further agree that the trial court, not applying this rule, admitted the incriminating evidence upon the erroneous theory that it was discovered because appellant voluntarily disclosed it without a search. The majority opinion quotes the trial court to this effect, and the judge so expressed himself repeatedly.
I am not suggesting that the trial judge did not understand the rule of reasonable cause to arrest, which he clearly did. Nor am I saying that, if there is a valid reason to have admitted the evidence seized, we should reverse because the trial court’s reason was the wrong one. In the light of the judge’s candid and reiterated comments, however, I cannot escape the [285]conclusion that since he weighed the evidence on reasonable cause under an incorrect theory in a close case, he did not weigh it correctly.
I would reverse the judgment.
Deputy Hill’s testimony concerning his decision to enter the house was elicited during his direct examination. The subject was discussed in his cross-examination. On direct, he testified as follows:
i C
“A. As I arrived at the back door, I observed the Defendant just entering the house, I exited from the vehicle, yelled, ‘Sheriff’s Department, ’ and approximately at the same general time the Defendant slammed the back door.
“Q. When you say ‘slammed the back door,’ did he slam it while standing outside or had he gone through the door?
“A. He had gone through the door and he was on the inside of the house.
“Q. All right.
“A. I heard someone say, ‘It’s the law. The law is here.’ And then there was some loud scuffling noise from the house.
“Q. What happened next?
“A. Deputy Sanchez ran to the back door, and at that time I ran to the front door. Inasmuch as I believed the Defendant to be attempting to get rid of narcotic evidence-
“Q. Wait just a moment. Did you have an opinion or form an opinion as to what was taking place in the house?
“A. Yes.
“Q. What was that?
“A. My opinion was that he was attempting to destroy dence.
“Q. What evidence or what activity did you base that belief on?
“A. Because of his furtive actions and because of the fact that he yelled, ‘ The law is here. ’
“Q. And in your experience in narcotics, if narcotics are [sic] in the house, how would they be disposed of if that were to be done ?
“A. Flushed down the toilet.
‘ ‘ Q. And in the investigation of narcotics, if narcotics are flushed down the toilet, is there a way to recover them after they go through the toilet stool?
“A. Ho.
“Q. Is this a common or uncommon method of disposing of narcotics material?
“A. Common.
“Q. And what caused you to believe that he was attempting to destroy or have someone else destroy the narcotic material?
“A. Because of the foot that he ran in the house, slammed the door, made the statement, ‘The law is here.1 ” (Italics added.)
E.g., where the suspect, in flight from police officers, attempted to discard contraband (People v. Currier (1965) 232 Cal.App.2d 103, 107 [42 Cal.Rptr. 562]; People v. Williams (1963) 220 Cal.App.2d 108, 112-113 [33 Cal.Rptr. 765]; People v. Barquera (1962) 207 Cal.App.2d 725, 728 [24 Cal.Rptr. 675]; People v. McMurray (1959) 171 Cal.App.2d 178, 185 [340 P.2d 335]; People v. Cisneros (1958) 166 Cal.App.2d 100, 102 [281][332 P.2d 376]); where his possession was reasonably inferred when contraband was found in the fresh tracks of Ms flight (People v. Hilliard (1963) 221 Cal.App.2d 719, 723-724 [34 Cal.Rptr. 809]; People v. Anderson (1962) 199 Cal.App.2d 510, 513, 515 [18 Cal.Rptr. 793]); or where, not fleeing, the suspect made a visible gesture, indicative of possession and held sufficient in itself to constitute reasonable cause for his arrest for possession. (People v. Nailor (1966) 240 Cal.App.2d 489, 493 [49 Cal.Rptr. 616]; People v. Mora (1965) 238 Cal.App.2d 1, 3 [47 Cal.Rptr. 338]; People v. Tabb (1962) 208 Cal.App.2d 567, 570-571 [25 Cal.Rptr. 541].)
E.g., People v. Diaz (1965) 238 Cal.App.2d 636, 638-639 [48 Cal.Rptr. 20]; People v. Ausbie (1965) 232 Cal.App.2d 724, 727 [43 Cal.Rptr. 137]; People v. Acosta (1963) 213 Cal.App.2d 706, 710 [29 Cal.Rptr. 241]; People v. Vegazo (1961) 191 Cal.App.2d 666, 668 [13 Cal.Rptr. 22], In the Vegazo case, the suspect crumpled a marijuana cigarette when the officer entered the room. The court keynoted this category of cases in stating (191 Cal.App.2d at p. 671) : ”. . . the arrest could not properly be sanctioned by information supplied by an informant who has not been proven reliable. But the information did not stand alone. The observation by the police of an act that furtively attempted the concealment or destruction of the contraband coalesced with, and in a sense corroborated, the information.” (Italics added. See, also, cases cited in Vegazo, with summaries of suspects’ conduct, 191 Cal.App.2d at pp. 669-671.)
The time sequence persuades me that the “scuffling” noise heard by both officers was associated with the imminent—and noisy—• departure of Denise Whalen through a window, where she was intercepted by Deputy [283]Sanchez. I agree with the majority, however, that Deputy Hill knew nothing of the Whalen woman’s exit when he decided to enter the house and arrest appellant, so that her actions did not contribute to reasonable cause for his entry. The trail court apparently shared the same conclusion, as is indicated by the following remarks exchanged during argument concerning admission of the evidence in question:
“[Appellant’s counsel]: Well, of course, Officer Hill kicked the front door in without knowing that the woman had come out the side window. He was around in front of the house and he kicked the front door in and he was on the inside at that time.
‘ ‘ The Court : I think that is correct. ’ ’
E.g., People v. Fuqua (1963) 222 Cal.App.2d 306, 311 [35 Cal.Rptr. 163]; People v. Ruiz (1961) 196 Cal.App.2d 695, 700-701 [16 Cal.Rptr. 855] ; People v. Fisher (1960) 184 Cal.App.2d 308, 315 [7 Cal.Rptr. 461] ; People v. Hurst (1960) 183 Cal.App.2d 379, 385-386 [6 Cal.Rptr. 483]; People v. Williams (1959) 175 Cal.App.2d 774, 776 [1 Cal.Rptr. 44]; People v. Merino (1957) 151 Cal.App.2d 594, 596-597 [312 P.2d 48].