People v. Martinez

California Court of Appeal Aug 5, 1968 No. Crim. 12823Published

Before: Lillie

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Holding. The court held that noncompliance with Penal Code section 844 is excused when officers have a reasonable, good-faith belief that compliance would frustrate an arrest, and that a search is lawful even if it precedes the formal arrest.

Issues

Whether the officers' failure to comply with Penal Code section 844 rendered the entry and subsequent search unlawful.
Whether a search is unlawful if it occurs before the defendant is formally apprehended and arrested.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is clear that at the time the officers entered, the facts known to them were sufficient to support their good faith belief that compliance with section 844 would have frustrated defendant’s arrest.”

“Under the circumstances here, noncomplianee with the statute does not compel the exclusion of the heroin seized in the search of defendant’s apartment.”

“Cases in this state have held that if before making a search and seizure officers are justified in making an arrest it is immaterial that the search and seizure preceded rather than followed the arrest.”

LILLIE, J.

Defendant was found guilty of possession of heroin (§11500, Health & Saf. Code) and sentenced to the state prison. He appeals from the judgment.

[680]

On August 12, 1965, Officer Barbarick received from the parole office, Department of Corrections, a teletype notice advising that defendant was wanted for a violation of parole (§ 3056, Pen. Code) and giving his description. Officer Barbarick talked with Parole Officer Damerell, special agent, Department of Corrections, concerning defendant and later was furnished with defendant’s address and photograph; he then went to the apartment at that address and showed the photograph to the manager who identified defendant as a tenant living there with a woman. Thereafter, he and other officers, including Parole Officer Damerell, kept the premises under surveillance. Around 9 p.m. on October 26, 1966, Officer Barbarick in the company of Officers Walsh, Trotsky and Olson passed defendant’s apartment and for the first time saw a light in it; immediately he called Parole Officer Damerell who told him he would be there shortly and to go ahead and arrest defendant. Thus Officer Barbarick and two officers went to the front and Officer Olson to the kitchen window; as they knocked on the front door and identified themselves as police officers, Officer Olson who was at the kitchen window, shouted, “He’s coming through the window.” They then forced the front door open and Officer Barbarick saw defendant running from the kitchen toward the bathroom “hollering, ‘Swallow it, swallow it,’ ” and close the door. They forced open the bathroom door but defendant had escaped through the bathroom window. In the living room Officer Trotsky had Conrad Garcia in custody; Garcia claimed to be a visitor. Officer Barbarick searched the apartment and found a red balloon containing heroin in the pocket of a man’s shirt hanging in the closet; narcotics paraphernalia was also found in the apartment. One of the spoons contined a heroin residue.

The sole issue is the legality of the entry and search of the premises and seizure of the heroin. Relying on

People

Rosales,

68 Cal.2d 299 [66 Cal.Rptr. 1, 437 P.2d 489], appellant contends that the entry was unlawful in that the officers failed to demand entrance and explain the purpose for which admittance was desired (§ 844, Pen. Code)

People v. Martinez

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LILLIE, J.

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