People v. Hirsch

71 Cal. App. 3d 987, 140 Cal. Rptr. 13, 71 Cal. App. 2d 987, 1977 Cal. App. LEXIS 1676

• Court: California Court of Appeal
• Decided: July 26, 1977
• Docket: Crim. 28019
• Status: Published

Opinions

Opinion

KINGSLEY, Acting P. J.

Appealing defendant was charged, jointly with John Biera, Richard Elias and Darlene Elias (count I) with conspiracy to possess, transport and sell heroin, in violation of section 182 of the Penal Code; (count II) with the sale of heroin, in violation of subdivision (a) of section 11352 of the Health and Safety Code; (count III) with possession of heroin for sale, in violation of subdivision (a)(2) of section 11351 of the Health and Safety Code; (count IV) with maintaining a place for the sale of heroin, in violation of subdivision (a) of section 11366 of the Health and Safety Code. One prior felony conviction was alleged. After a trial by the court, trial by jury having been duly waived, defendant was found guilty under count III, but not guilty under counts I, II and IV. No finding was made as to the alleged prior. Defendant was sentenced to state prison; he has appealed; we reverse.

Acting on information from three informants, the police began a surveillance of an apartment building at 1255 Mariposa Street, in the City of Glendale. The information received from the informants, together with data obtained from official sources and the observations during the surveillance, caused the officers to believe that defendant, together with Biera and the Eliases, was engaged in selling heroin to “pushers,” with defendant as the “master mind” or “boss,” and the other three doing the direct selling.

On November 1, 1974, the officers broke into two apartments in the building, one (apartment 8) being the residence of the Eliases and the other (apartment 14) being the residence of Biera. The Eliases were found in their apartment and were arrested; defendant, with his wife and children, was found in apartment 14. He was arrested, that apartment was searched, disclosing contraband. Defendant (and later his wife) signed a form giving consent to search defendant’s home, several blocks away. Additional contraband was found as a result of that search.

Defendant duly moved, under section 1538.5 of the Penal Code, to suppressed the evidence found in apartment 14 and in his home. The motion was granted as to the evidence found in apartment 14, it was denied as to the evidence found in defendant’s home.

On this appeal, defendant contends:

(1) That his arrest was unlawful because not made on probable cause;

(2) That the entry by the police was unlawful for noncompliance with section 844 of the Penal Code; and

(3) That the consent to search defendant’s home was invalid as being the fruit of the unlawful arrest and unlawful entry.

I

Although none of the three informants was a “reliable” informant within the meaning of the cases that define that term—two because they were untested and the third because he did not purport to speak of his own knowledge—we conclude that the totality of the information possessed by the officers on November 1 was enough to give them reasonable grounds to arrest defendant.¹

II

The officers went to the door of apartment 14 and called out: “Police officers, you’re under arrest for narcotics violations. Open the door.” The officers saw a person look out a window near the door and then disappear. No sounds of retreating footsteps or other evidences of flight were heard. After waiting about five seconds, the officers kicked in the door and entered.

Although the officers complied with the knock and demand requirements of section 844, the trial court ruled that the entry was unlawful because they did not give the occupants sufficient time to admit them. The trial court said: “Now, the Court is going to find then that there was not compliance of 844 of the Penal Code. There was not substantial compliance. It was done in too much of a huriy. They didn’t wait but—So anything that was found right then at the time of the breaking in, in No. 14, wasn’t it, was illegal.”

We cannot say that that factual finding was in error.

III

After the entry into apartment 14, and the arrest of defendant, the officers read him his Miranda rights. They then asked for permission to search defendant’s home and he signed a consent form. The trial court held that that consent validated the search of defendant’s home, saying: “But then finally, when they had the discussion with him and he gave the written consent, I feel that was attenuated, watered down, so that his consent was valid and legal consent and so everything will be suppressed except the contraband that they found over in his residence pursuant to his written consent.”

(a) Defendant, relying on Brown v. Illinois (1975) 422 U.S. 590 [45 L.Ed.2d 416, 95 S.Ct. 2254], contends that the giving of the Miranda rights, after the entry and arrest, did not remove any barrier to any invalidity of the consent. We agree. In Brown, the Supreme Court said (at pp. 602-603 [45 L.Ed.2d at p. 426]): “If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. See Davis v. Mississippi, 394 U.S. 721, 726-727 (1969). Arrests made without warrant or without probable cause, for questioning or ‘investigation,’ would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings. Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a ‘cure-all,’ and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to ‘a form of words.’ ”

IV

We turn, then, to the crucial issue in the case at bench: Does the same policy that requires the rejection of a consent obtained after an unlawful arrest (Burrows v. Superior Court (1974) 13 Cal.3d 238, 251 [118 Cal.Rptr. 166, 529 P.2d 590]) also require rejection after a violation of section 844? We conclude that it does. Section 844 has, as one of its purposes, the protection of the right of privacy established in this state by article I, section 1, of our state Constitution. If the police may violate section 844, and thereby effect an arrest and a consent, the same temptation exists to ignore the privacy that section 844 is, in part, designed to protect. Just as searches made possible by a violation of section 844 are held unlawful, so must a consent similarly obtained.

The judgment is reversed.

Dunn, J., concurred.

1 “The totality of information, coming from a number of independent sources, may be sufficient even though no single item meets the test [of reliability]. If the smoke is heavy enough, the deduction of a fire becomes reasonable.” (People v. Gamboa (1965) 235 Cal.App.2d 444, 448 [45 Cal.Rptr. 393].)