People v. Olivas

266 Cal.App.2d 380 (1968) THE PEOPLE, Plaintiff and Respondent,

v.

ALFRED ROBLES OLIVAS, Defendant and Appellant.

Crim. No. 14182. California Court of Appeals. Second Dist., Div. Four.

Oct. 4, 1968. David C. Marcus for Defendant and Appellant.

Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Suzanne E. Graber, Deputy Attorney General, for Plaintiff and Respondent.

Evelle J. Younger, District Attorney, Harry Wood and Harry B. Sondheim, Deputy District Attorneys, as Amici Curiae on behalf of Plaintiff and Respondent.

JEFFERSON, J.

This appeal follows defendant's conviction by the court of possession of heroin. [1] The judgment must be reversed because the officers who arrested defendant failed to comply with the demand and explanation requirements of section 844 of the Penal Code before they entered the apartment where the arrest was made and the narcotics were subsequently discovered.

One of the arresting officers was Lynn Leeds of the Narcotics Division. The officer had received information that one Josephine Kanos was in violation of her parole. He learned that she was living with defendant and his sister in a house at 400 North Sereno. He checked the Records and Identification Division and found that both defendant and Kanos were wanted for violation of parole. He staked out in the vicinity of 400 North Sereno and saw defendant and Kanos enter that location.

The day after the stake-out, Officer Leeds returned with two fellow officers. It was about 10 a.m. One of the officers with Leeds placed a telephone call to the phone registered at the Sereno address and asked if Josephine was home. A female voice replied "Yes, just a minute." Leeds and a second officer then approached the house. Leeds observed that the wooden front door was open; that there was a screen door which was closed but not latched. The officer knocked three separate times on the wooden door frame, but received no response. He then said "Police officers." There was still no response.

At this point Leeds and his partner opened the screen door [382]