People v. Arellano

FLEMING, J.

— Arellano appeals from a conviction for possession of heroin (Health & Saf. Code, § 11500) on the ground that evidence against him was obtained by an unlawful seizure.

[390]

A telegraphic warrant having been received for Arellano’s arrest for violation of parole, Los Angeles police officers went to the hotel where it was rumored he was living in order to arrest him. The officers learned from the manager that a person resembling Arellano was in Room 23. Without announcing their presence or demanding admittance, they unlocked the door to Room 23 with a passkey and pushed it open. Arellano was asleep in bed with a woman who was also registered in the room and who had been living with him for three weeks. The officers handcuffed Arellano and seized a gelatin capsule box on the dresser. Inside the box were capsules containing heroin, for whose possession Arellano was prosecuted and convicted.

Arellano contends the heroin was unlawfully seized because the officers making the arrest forced an entry into his room without first demanding admittance and explaining their purpose, as required by Penal Code section 844.

(People

v.

Maddox,

46 Cal.2d 301, 306-307 [294 P.2d 6].) That section provides: “To make an arrest ... a peace-officer, may break open the door or window of the house in which the person to be arrested is, . . . after having demanded admittance and explained the purpose for which admittance is desired. ’ ’ Admittedly no such demand was made.

The prosecution argues that compliance with section 844 was unnecessary because Arellano was a prisoner on parole whose parole had been revoked; as a parolee he possessed the status of a prisoner in the legal custody of the Department of Corrections; his apprehension merely involved a change in status from constructive custody to actual custody and did not amount to an arrest; hence the provisions of the Penal Code relating to the manner of arrest did not apply to his case.

We do not accept the reasoning of the prosecution as applied to this arrest. While Arellano’s parole could have been summarily revoked for cause at any time, we think a revocation of parole is merely the equivalent of an arrest warrant and not of the arrest itself. (Pen. Code, §§ 3056, 3060, 3061, 3063, 3064.) The notion of constructive custody may be useful for purposes of summary parole revocation and for such problems as child custody