Majority
By information. Lee and Narcisse were charged in one count with possession of marijuana (§ 11530, Health & Saf. Code), and in count II Lee alone was charged with possession for sale of amphetamine (§ 11911, Health & Saf. Code). The People appeal from order granting motion to set aside information (§ 995, Pen. Code).
On November 3, 1970, Officer Nettles received information by way of an October 26 complaint to the police department that narcotics were being “dealt” at 2198 West 29th Street by “Sonny” and that the informer would meet him (the officer) at a certain location and point out “Sonny” to him. Thus, on that day he met the informer who personally related the foregoing and said that the person at that address kept his marijuana in a garbage can at the rear of the building and that he had seen marijuana in the trash can and knew what marijuana was. They went to the location where they saw “Sonny” come to the front door; “Sonny” was pointed out to the officer by the informer; in the courtroom the officer identified “Sonny” as defendant Lee. For about an hour Nettles waited in his vehicle a half block away where he could see the front door; during that time he observed numerous pedestrians walk to the front door and 10 vehicles stop in front and persons therefrom go to the door and knock, and defendant Lee appear at the door and admit them; he saw them enter, stay a very short time, then leave the premises.
The next day (November 4) Nettles again went to the address and noticed similar activity. After observing defendant Hampton arrive in a white Valiant, enter the premises and leave, Nettles advised his partner (Sergeant Carlson) by radio to stop the Valiant for investigation and narcotics violation; he then got out of the police car and went up to the address; while walking along the driveway he looked through the kitchen window; the shade was pulled almost to the bottom with an opening of three to four inches; through this opening he observed defendant Lee standing by the kitchen counter with amphetamine tablets on the counter top right beside him wrapping them in foil.[1] The residence was a duplex with two apartments in front, one on either side; the driveway led to a garage to the rear of the building.[2] Officer Nettles returned to the police car where he was
1 It was stipulated that Officer Nettles was an expert in narcotics, narcotic paraphernalia and the manner of packaging for sale.
2 At this point, at the preliminary hearing, defendants made an objection of invasion of privacy which was overruled; the magistrate found this to be a common driveway which occupants of both sides of the duplex had the right to use to go to *986 file garages in the rear, and that anyone using the driveway could see in the window; and concluded that it “is not an invasion of privacy. It is not a privacy that the defendant could reasonably expect.”
Followed by Sergeants Carlson and Johnson, Officer Nettles went to the front door and knocked; the door was opened and he stated, “Police officers"; “[a]t this time, a very strong odor of burning marijuana was coming from that room"; the room was very dark but he observed four persons inside; the kitchen was light and he saw defendant Lee still standing by the counter in the same position doing the same things he had observed through the kitchen window; upon seeing this through the open front door, “[he] rushed back in the kitchen where he was and placed him under arrest”; as he walked through the front door he showed his badge and I.D. card and said, “Everybody is under arrest” and rushed through to the kitchen “because if I didn’t get back to the kitchen, where Mr. Lee was, he would possibly destroy the evidence”; he believed this because “[t]he evidence was right there and it has been my experience that if the occupant sees the police on the scene, the evidence is normally destroyed, if possible.” As he entered the kitchen he told Lee he was under arrest. The items in plain sight on the table consisted of 27 foil bindles of five amphetamine tablets each, a bag of 300 tablets, a vial of 50 tablets and bags of marijuana—3.3, 7.5, 3.9 grams. He then arrested the others for possession of marijuana, among them defendant Narcisse; a bag of marijuana was removed from Narcisse’s pocket.
At the conclusion of the hearing on the motion to set aside the information the trial court concluded, “I think that the police officers did not comply with 844; that they probably had the obligation to say, ‘Police officers, we realize there is narcotic activity going on in here and open the door.’ ”
An information will not be set aside if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. (Rideout v. Superior Court (1967) 67 Cal.2d 471 , 474 [ 62 Cal.Rptr. 581 , 432 P.2d 197 ].) “Neither the trial court in a section 995 proceeding (People v. Landry (1964) 230 Cal.App.2d 775 , 779 [ 41 Cal.Rptr. 202 ]; Hacker v. Superior Court (1968) 268 Cal.App.2d 387 , 392-393 [ 73 Cal.Rptr. 907 ]) nor a reviewing court on appeal therefrom (Rideout v. Superior Court, supra, 67 Cal.2d at p. 474; People v. Cirilli (1968) 265 Cal.App.2d 607 , 612-613 [71 CaL.Rptr. 604]) may sub
The issue on the motion, hence before this court, is whether the officers properly entered the premises after the door was voluntarily opened by one of the occupants.[3] The evidence fails to support appellant’s argument that the officers entered with the consent of the occupants, but there is merit to its other contentions.
In order to make an arrest a police officer may break open the door of a house in which is the person to be arrested after (1) identifying himself as an officer; (2) explaining the purpose for which he wished to enter; and (3) demanding entry. (§ 844, Pen. Code.)[4] Having immediately before knocking on the door, and again after the door was opened, seen defendant Lee in the process of packaging amphetamine tablets for sale, Officer Nettles had probable cause to arrest him before he ever entered the premises; also, at the time the door was opened and he stood at the threshold he smelled the odor of burning marijuana coming from the front room. Thus, before entering the premises the officer had reasonable cause to believe that Lee was engaged in the commission of a felony and that the four occupants in the front room were in a place where marijuana was being used. When the door opened Officer Nettles identified himself as a police officer and immediately displayed his badge and I.D. satisfying the initial requirement. Identification without announcement of purpose can constitute substantial compliance with section 844, Penal Code “if the surrounding circumstances made the officers’ purpose clear to the occupants.” (People v.
3 There is a breaking in within the meaning of section 844, Penal Code, even though the door is wide open. (People v. Bradley, 1 Cal.3d 80 , 86 [ 81 Cal.Rptr. 457 , 460 P.2d 129 ].) Under the circumstances before us we can only assume that had one of the defendants not opened the door in response to the knock, the officers would have forced entry.
4 Section 844, Penal Code, 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, or in which [the officer has] reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.”
But on still another ground the magistrate was correct in his determination. Inasmuch as at the time the door opened the officer perceived de
5 “As to 844, I think it presents an interesting question. Officer Nettles said, in essence, that it was his experience that people destroyed narcotics, dealers or users or possessors would destroy narcotics when people knocked on the door or they thought the police were near. “I believe it is People versus Castillo [sic] that expresses a disapproved dumping of narcotics users, dealers and possessors in one group, and saying that everybody who sells or uses or possesses narcotics are prone to destroy upon the ringing of the doorbell or the advent of the police. If it were based on that, I would agree with you. “Officer Nettles gave two stories, on direct examination he said that when the door was opened, he smelled a strong odor of burning marijuana; that he thereupon entered the premises. On cross-examination, he said that he entered, and then he smelled the odor of burning marijuana. At this point, we merely have a discrepancy in his testimony. If his statement on direct examination is correct, I see no reason why, after smelling burning marijuana, he would have to close the door and then knock again and then come in. This would be a foolish act. If his statement on cross-examination is correct, then he had no business being in the position to smell the thing.” It is obvious, in determining the issue, that the magistrate gave credence to the officer’s testimony that when the door was opened he smelled a strong odor of burning marijuana and thereupon entered the premises.
“. . . But when occupants opened both the front and the back doors exposing their activities to the police who stood at the thresholds, the right of privacy protected by section 844 was foregone. With respect to the risk of violence which section 844 seeks to lessen, there is probably less potential for violence when police officers step inside after a door is opened in response to their knock than if they paused to announce that they intended to arrest everyone inside.” (People v. Peterson, 9 Cal.App.3d 627 , 633 [ 88 Cal.Rptr. 597 ].)
Respondent Lee argues that he “had exhibited a reasonable expectation of privacy in his kitchen from outside prying and that expectation had been violated by unreasonable governmental intrusion with the resulting seizure” in violation of his rights under the Fourth Amendment of the United States Constitution; and that the refusal of the police to identify the informant where he is or might be a material witness upon demand at the preliminary hearing required dismissal. Both of these matters were argued at the preliminary hearing and on the motion under section 995 in the superior court and in each instance the foregoing defense contentions were rejected. The magistrate held that the driveway from which the officer looked into the window and watched defendant Lee packaging the contraband “is a common driveway.” The trial court also rejected the defendant’s objection that the action of the officer was an invasion of privacy. Likewise the trial judge found “no basis on which to disclose [the informant’s] identity”; he said that it did not appear that the informant was a percipient witness on the date of
The order is reversed.
Wood, P. J., and Thompson, J., concurred.
The petition of respondent Lee for a hearing by the Supreme Court was denied December 29,1971.
Cases cited
- Rideout v. Superior Court 67 Cal.2d 471 at 474 p. 986
- People v. Landry 230 Cal.App.2d 775 at 779 p. 986
- Hacker v. Superior Court 268 Cal.App.2d 387 at 392-393 p. 986
- People v. Cirilli 265 Cal.App.2d 607 at 612-613 p. 986
- Perry v. Superior Court 57 Cal.2d 276 at 283-284 p. 987
- People v. Hall 3 Cal.3d 992 at 996 p. 987, p. 988
- People v. Rosales 68 Cal.2d 299 at 302, at 305 p. 988, p. 989
- Greven v. Superior Court 71 Cal.2d 287 at 292-293, at 293 p. 988
- People v. Sotelo 18 Cal.App.3d 9 at 18 p. 988
- People v. James 17 Cal.App.3d 463 at 467 p. 988
- People v. Peterson 9 Cal.App.3d 627 at 632, at 633 p. 988, p. 990
- People v. Garnett 6 Cal.App.3d 280 at 290 p. 988
- People v. Superior Court of L.A. Cty. 276 Cal.App.2d 581 at 588 p. 988
- People v. Cockrell 63 Cal.2d 659 at 665-666 p. 988
- People v. Martin 45 Cal.2d 755 at 762-763 p. 988
- People v. Superior Court 274 Cal.App.2d 578 at 581 p. 988
- People v. Nash 261 Cal.App.2d 216 at 226 p. 988
- People v. Gastelo 67 Cal.2d 586 at 588 p. 989
- People v. De Santiago 71 Cal.2d 18 at 29-30 p. 990
- People v. Boone 2 Cal.App.3d 66 p. 990