People v. Tellez

Two weeks later, on February 21, 1967, two officers assigned to the narcotics bureau of the Los Angeles County sheriff’s department and three other officers went to defendant’s residence to serve a warrant for defendant’s arrest on the charge of selling heroin. This charge presumably related to the above described sale. The officers did not have a search warrant. Without identifying themselves, knocking, or announcing their presence, the officers entered through the rear door. (There was a conflict of testimony as to whether the door was open before the first officer entered.) They went through the kitchen and into the front room, where defendant was sitting in an armchair in the presence of his wife. The officers placed defendant under arrest, handcuffed him, and advised him of his rights. The five officers then proceeded to search defendant’s apartment without his permission. Forty minutes later one of the officers saw a red balloon in a light fixture on a bedroom wall. Defendant, when asked if the balloon were his, stated, “Yes.” The balloon contained heroin. The balloon with its contents and defendant’s admission that it was his were received in evidence over defendant’s objection that the entry was unlawful and that the search which followed was unreasonable.

Defendant contends that the search was unlawful because the officers entered without complying with the requirement of section 844 of the Penal Code that an officer explain his purpose and demand admittance before breaking into a house. It has been held that section 844 does not apply where the entry is through an open door. (People v. Bradley,^[1] (Cal. App.) 70 Cal.Rptr. 339 ; see United States v. Williams (6th Cir. 1965) 351 F.2d 475 , 477 [ 383 U.S. 917 , 15 L.Ed.2d 671 , 86 S.Ct. 910 ] ; cf. People v. Rosales, 68 Cal.2d 299 , 302 [ 66 Cal.Rptr. 1 , 437 P.2d 489 ].) In this case, one officer testified that the door was open when the first officer entered and another testified that the door was opened by the first officer to enter.

The same reasoning applies here even though the search took place two weeks rather than seven months after the sale which was the basis for the issuance of the arrest warrant. The sale had been made in the presence of a police officer who was available to testify and the heroin sold was in the possession of the police. Therefore, the motivation in the search could not have been to find evidence of the earlier sale.

The Attorney General suggests that it is reasonable to assume that the officers were searching for evidence that would corroborate the prosecution’s case such as a large cache of heroin or packaging devices or narcotics paraphernalia. Contrary to the cases relied upon by the Attorney General in support of this suggestion, there is here no evidence that defendant had engaged in any illegal activity in the place searched as in People v. Winston, 46 Cal.2d 151 , 154 [ 293 P.2d 40 ], and People v. Carella, 191 Cal.App.2d 115 , 132-133 [ 12 Cal.Rptr. 446 ], or that defendant’s action upon the arrival of the police corroborated information given to the police that defendant had narcotics in his home as in People v. Ghimenti, 232 Cal.App.2d 76 [ 42 Cal.Rptr. 504 ], or that the police were searching for the items which were the subject matter of the crime for which the defendant was being arrested as in People v. Gallup, 253 Cal.App.2d 922 , 926-928 [ 61 Cal.Rptr. 709 ]. There being no evidence in the record that the arresting officers could reasonably have believed that the search would produce evidence material to the earlier sale, we are left with the conclusion that the sole motive for the search was to find evidence of other crimes and therefore that the scope of the search as an incident to the arrest under the

The Attorney General next contends that the sale of heroin two weeks earlier in defendant’s car provided probable cause for the officers to believe that the defendant had possession of heroin in his home, and therefore that the search was incidental to his valid arrest on that charge. This argument is premised upon the probability that a seller of narcotics will usually be in possession of more narcotics in order to have some to sell at a future date. The inference to be drawn from the fact that a person has committed an offense in the past does not of itself provide probable cause to believe that he is presently guilty of a similar offense. (People v. Sanders, 46 Cal.2d 247 , 250 [ 294 P.2d 10 ]; see People v. Amos, 181 Cal.App.2d 506 , 509 [ 5 Cal.Rptr. 451 ].) In People v. Handy, 200 Cal.App.2d 440 [ 19 Cal.Rptr. 409 ] and People v. Reed, 202 Cal.App.2d 575 [ 20 Cal.Rptr. 911 ], relied upon by the Attorney General, unlike the case at bar, the probability of present possession was supported not only by the fact that the arresting officers knew that the defendant had been in possession one or two weeks before the arrest but, in Handy, by information that the defendant was a dealer in narcotics and, in Peed, by the fact that at the time of the search cigarette papers of the kind used in rolling marijuana cigarettes were found on the defendant’s person.

Lastly, the Attorney General argues that the officers did not find the balloon in the lamp fixture in the bedroom as the result of a search because the balloon was in plain view. A search implies that the object searched for has been hidden or intentionally put out of the way; the observation of that which is in plain view is not a search. (See Within, Cal.