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District Court of Appeal, Second District, Division 2, California.

Application of Joe STERLING et al. for a writ of habeas corpus.

Cr. 10320.

Decided: February 09, 1965

Walter L. Gordon, Jr., Los Angeles, for petitioners. Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., Wm. R. Yates, Deputy City Atty., for respondent.

Petitioners were convicted in the Los Angeles Municipal Court of gaming, a misdemeanor (Penal Code, § 330). After their convictions had been affirmed by the Appellate Department of the Superior Court, they obtained a writ of habeas corpus from this court, charging that evidence used against them had been obtained in violation of their constitutional rights.

Prior to petitioners' arrests, police officers had received information through an anonymous phone call and through undercover operators and informers that professional gambling was again being conducted at the Westside Social Club on premises formerly used as a Safeway store. Arriving at the location about 1:30 a. m., the police found many parked cars on the lot and on the street, and saw persons, usually solitary males, approach the front door, hold short conversations at a window, then pass through an outer door, and thereafter through an inner door. After observing these activities, police officers went to the rear of the building, placed their ears against the wall, and were able to hear the following: ‘I'm coming out for a point.’ ‘Who's going to cover me?’ ‘I will take five bucks of that.’ From this and similar conversation the officers deduced that a dice game for money was taking place inside. They could not, however, identify any of the voices.

The police officers next climbed a ladder to the roof of the two-story building and made a hole in the roof approximately two and a half feet square by forcing up the wooden roof with a crowbar. Through this hole in the roof the officers were unable to see any of the players inside, only the ceiling below the roof, but by lowering themselves into the attic and looking through a vent in the ceiling, they were able to observe petitioners standing around a pool table engaged in shooting craps. One petitioner was seated at the pool table acting as houseman for the game. Another petitioner entered the room, went to the pool table where he was handed an unknown amount of money, and then left the room. Three petitioners stopped shooting craps, sat down at one of several card tables, and began playing cards for money.

To obtain a better view, the police then moved from the attic to an upstairs office which overlooked the main room, and after making a hole in the office partition the officers resumed their observations of activities in the room below. According to the arrest report these observations continued for approximately twenty minutes.

Thereafter, upon a prearranged signal by these officers their partners forced entry through the front door. Gambling equipment was seized, and all petitioners were arrested.

Petitioners contend that the direct evidence of their gambling was obtained by police officers as a result of an illegal search in violation of the 4th and 14th amendments to the United States Constitution and of Article I, section 19, of the California Constitution.

The City Attorney replies that the evidence was properly admissible because it was obtained as an incident to a valid arrest made with reasonable cause to believe that a public offense was being committed in the presence of the arresting officers.

We untangle this skein by first considering the question of reasonable cause to make an arrest, thereafter the circumstances which justify forcible entry to make an arrest, and finally the question of permissible search incident to an arrest.

1) Reasonable Cause to Make an Arrest

A police officer may make an arrest whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence. (Penal Code, § 836(1).) Gaming is a public offense. Presence is not limited to propinquity but is liberally construed to comprehend any crime which is apparent to the officer's senses. (People v. Burgess, 170 Cal.App.2d 36, 41, 338 P.2d 524; People v. Bock Leung Chew, 142 Cal.App.2d 400, 402–403, 298 P.2d 118.) In the present case as a basis for reasonable cause we have (1) the anonymous phone call that professional gambling was being conducted at the Westside Social Club; (2) the knowledge of the officers from past arrests, undercover operators, and other informants that professional gambling had been conducted at these premises during the past year; (3) the observations by the officers of the entry of individual males into the club at 1:30 a. m. and their manner of entry; and (4) conversations directly overheard by the officers which strongly indicated that craps were being played for money. We agree with the City Attorney that the arresting officers had reasonable cause to believe a public offense was being committed and being committed in their presence. (People v. Hen Chin, 145 Cal.App.2d 583, 587, 303 P.2d 18, citing Pacetti v. State of Georgia, 82 Ga. 297, 7 S.E. 867.)

2) Forcible Entry to Make an Arrest

Being satisfied that the police officers had reasonable cause to make arrests, we take up the second point, what methods were permissible to the police officers to effect their arrests.

The persons to be arrested were inside the building, and the persons to do the arresting were outside the building and therefore squarely faced with the problem how they could reasonably and constitutionally get inside in order to make their arrests. According to the early rule at common law, adopted by statute in California, they would have been first required to demand admittance and explain the purpose for which they desired admittance, and only after such demand and explanation would they have been privileged to break in to effect their arrest. (Penal Code, § 844.)

However, to the rule at common law a number of exceptions developed, arising out of danger to life and limb, danger of escape, and danger of destruction or concealment of evidence during the period of delay caused by the demand and explanation. Experience demonstrated that in certain types of crimes if demand for admittance and explanation of purpose were made known prior to entry, the evidence of the crime might be entirely disposed of. This is certainly true in narcotic cases and is likely to be true in most gambling cases. Indeed in this very case, according to the arresting officers' report, a sign inside the premises told patrons what to do in case of a police raid.

Because of these practical considerations the common law exceptions to the original requirement for demand and explanation came to be acknowledged in California, and the police were authorized to force an entrance without demand or explanation when they had reasonable grounds to believe that otherwise evidence would be destroyed or the danger to the arresting officers increased or the person to be arrested make good his escape if demand were made and purpose explained. (People v. Maddox, 46 Cal.2d 301, 305–306, 294 P.2d 6.) These common law exceptions have been read into the specific language of Penal Code, § 844 by the California Supreme Court, and their constitutionality sustained in a five-to-four decision by the United States Supreme Court. (Ker v. State of California, 374 U.S. 23, 37–41, 83 S.Ct. 1623, 10 L.Ed.2d 726.)

This rule of ‘exigent circumstances' (Ker, p. 40, 83 S.Ct. 1623) is a rule of reason involving some relaxation of Section 844, in order to meet situations where announced entry might be dangerous and delayed entry would probably result in destruction of evidence. Curiously enough, most of the California cases which apply the exceptions have involved fact situations where some demand has actually been made. (People v. Maddox, 46 Cal.2d 301, 294 P.2d 6 (police knock on door, sound of retreating footsteps, door then kicked in); People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (police demand that door be opened); People v. Foster, 199 Cal.App.2d 866, 19 Cal.Rptr. 283 (police rang doorbell, sound of running footsteps); People v. Fisher, 184 Cal.App.2d 308, 7 Cal.Rptr. 461 (police knock and identification, sound of running); People v. Williams, 175 Cal.App.2d 774, 1 Cal.Rptr. 44 (police knock, sound of rushing); People v. Steinberg, 148 Cal.App.2d 855, 307 P.2d 634 (police identification); People v. Moore, 140 Cal.App.2d 870, 872, 295 P.2d 969 (demand for admittance, running, door then forced).) In the last case Mr. Justice Ashburn pointed out that the right to break down barriers is recognized (1) in order to make an immediate arrest, and (2) to save evidence from destruction.

Accordingly, with the information which the police had obtained in this case they would have been privileged to make an arrest without prior demand or explanation and to use any appropriate means to effect as rapid an entry as possible in order to prevent probable destruction of evidence of gaming and of equipment used for that purpose. The officers could have forced an entry through the front door, or surreptitiously entered by means of a pass key, or entered quietly through a window, or used other appropriate means to get inside the building to make their arrests as quickly as possible. Noncompliance with the requirement for demand and explanation would have been justified by the need for speed.

3) Search Incident to an Arrest

This brings us to our third question—what search may be made as an incident to a lawful arrest.

A search is, of course, a different thing from an arrest. Normally it can only be made on a search warrant particularly describing the persons and place to be searched, the persons or things to be seized, and which has been issued on probable cause supported by oath. (U.S.Const., 4th amendment; Calif.Const., Art. I, § 19.) Once again an exception to the literal rule has been recognized by implication and reason, and it is now well understood that a reasonable search may be made of the person arrested as well as the premises under his immediate control in which the arrest takes place. (United States v. Rabinowitz, 339 U.S. 56, 61, 70 S.Ct. 430, 94 L.Ed. 653.) The rule as now formulated is that a search may be made (1) pursuant to a search warrant, or (2) as an incident to a lawful arrest. Yet the Constitution still prohibits ‘unreasonable’ searches (Rochin v. State of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183). Any search without a warrant not strictly incident to an arrest cannot be justified by the arrest and will fall within the proscribed classification of a general search and seizure denounced in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.

A search incident to an arrest requires that the defendant be on the premises (Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856); that the search be made at the time of the arrest (Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777), immediately before or after the arrest (Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36); and be confined to the immediate vicinity of the arrest. (Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Castaneda v. Superior Court, 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Cruz, 61 A.C. 959, 964, 40 Cal.Rptr. 841, 395 P.2d 889.)

4) Forcible Entry to Secure Evidence

If we pause a moment to see where we are, we find that both the law relating to search and the law relating to entry to make an arrest consist of a general rule and an exception.

With respect to search, the general rule requires a search warrant, to which there is the exception of a search incident to a lawful arrest.

With respect to entry to make an arrest, the general rule requires demand for admittance and explanation of purpose, to which there is an exception in case of the need for speed, when conditions are dangerous or evidence is about to be destroyed.

In the present case the City Attorney has taken the exception in the law of arrest, which permits forcible entry in cases where there is a need for speed to prevent destruction of evidence, and imported it into the law of search, where he attempts to justify a forcible entry to search because an arrest is ultimately contemplated. In our view he has put together a jerry-built structure by using a concept which permits forcible entry where the need for speed exists to justify a forcible entry where speed is not a factor at all.

The testimony in this case clearly indicates that the forced entry through the roof was designed to secure a station from which further evidence could be harvested, to gain a place of vantage so that the gamblers could be individually identified. (Tr. pp. 15, 18, 21, 22.) The forcible entry, the breaking into the roof with a crowbar, was not made to effect an arrest nor to prevent destruction of evidence but rather to obtain specific evidence against particular individuals. The entry from the roof was not directly related to the arrests at all, for twenty minutes later other officers effected an entrance through the front door and made the actual arrests. Nor was it a stratagem to secure an unobtrusive entry for the purpose of making arrests, as might be the case where a door was jimmied quietly or a window silently pried open in order to get into the building quickly. Rather the entry through the roof was the initial step in a process of exploration which first involved visual observations from the roof, next entry into the attic and the establishment of a lookout post at a vent in the ceiling, and finally exploration of an upstairs office and the making of a hole in a partition in the office to set up another observation post. In no genuine sense can it be said that the forcible entry through the roof was incidental to the arrests. Rather the breaking and entering appears to fall within the category of those exploratory searches prohibited by the state and federal constitutions. In this connection the comment of the Supreme Court by Mr. Justice Stewart in Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734, is appropriate: ‘The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Entick v. Carrington, 19 Howell's States Trials 1029, 1066; Boyd v. United States, 116 U.S. 616, 626–630, 6 S.Ct. 524, 530–532, 29 L.Ed. 746. This Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard.’

It is true that here the police had reasonable cause to believe that a crime was being committed, and in this respect this case differs from those in which the police attempted to justify their search by what later turned up. (People v. Brown, 45 Cal.2d 640, 290 P.2d 528; Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288; People v. Regalado, 224 Cal.App.2d 586, 36 Cal.Rptr. 795.) Yet reasonable cause to believe that a crime is being committed is not sufficient excuse to justify a forcible entry to search for further evidence. Forcible entry is only justified to make an arrest, and a search after a forcible entry may only be justified as an incident to the arrest. The arrest itself may not serve as a smoke screen for an exploratory search without a warrant. (Ker v. State of California, 374 U.S. 23, 42, 83 S.Ct. 1623; United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 76 L.Ed. 877; Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 65 L.Ed. 647; People v. Haven, 59 Cal.2d 713, 719–720, 31 Cal.Rptr. 47, 381 P.2d 927.)

Searches, even those authorized by the state and federal constitutions in other respects, must be reasonable. As we see it, the critical point here is the use of the intrustion to effectuate the search. Forcible entry may be deemed reasonable to effect an arrest; forcible entry may be deemed reasonable to prevent immediate destruction of evidence. Forcible entry is unreasonable when used to obtain evidence to bolster up the proof of the crime.

5) Permissible Investigation When There is Reasonable Cause to Suspect Criminal Acts

In holding that the state and federal constitutions prohibit the police from breaking and entering the premises of a suspect in order to obtain further evidence, we do not wish to be understood as prohibiting the police from investigating crime to the fullest extent of the law whenever they have reasonable cause to suspect that a crime is being committed. The key element is reasonable cause. Whenever reasonable cause does not exist, courts have consistently struck down police observations as exploratory searches. (Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288 (peeking through vent in roof); People v. Regalado, 224 Cal.App.2d 586, 36 Cal.Rptr. 795 (peeking through door into hotel room).) Such exploratory searches are as invalid as exploratory arrests and may not be justified by what they turn up. (People v. Brown, 45 Cal.2d 640, 290 P.2d 528.)

However, the same reasonable cause which will justify an arrest without a warrant, will permit police observations short of forcible entry to obtain further evidence. When there is reasonable cause to suspect criminal acts the police may look at whatever it is within their power to do and may use windows, transoms, mail slots, and keyholes to do it. When reasonable cause exists, the police may listen from all points of vantage readily accessible to them and even secure vantage stations which in the absence of reasonable cause would otherwise be a trespass for them to do.

Short of breaking and entering the courts have shown considerable liberality in validating police access to observation and listening posts. (Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (trespass on land); People v. Martin, 45 Cal.2d 775, 290 P.2d 855 (looking through window); People v. Foster, 199 Cal.App.2d 866, 19 Cal.Rptr. 283 (looking in trash can in carport); People v. Hen Chin, 145 Cal.App.2d 583, 303 P.2d 18 (looking in hotel window); People v. Moore, 140 Cal.App.2d 870, 295 P.2d 969 (looking through venetian blinds); Giacona v. United States, 5 Cir., 257 F.2d 450 (inspection of outside building foundation); Janney v. United States, 4 Cir., 206 F.2d 601 (trespass near barn to observe bootlegging sale); United States v. Romano, D.C., 203 F.Supp. 27 (entry on factory grounds through break in fence).) If there is reasonable cause to believe that a crime is being committed police officers may use their eyes and ears to best advantage.

In these activities the police must be guided by the rule of reason of the 4th amendment to the United States Constitution and of Article I, section 19, of the California Constitution. Leeway in permitting their observations and their listenings will be greater or less depending upon the time of day and the nature of the premises involved, whether residence, business, warehouse, or what. While perplexing, borderline questions may arise from time to time which may be difficult to answer, there is a clear distinction between simple trespass (which to suppress crime may be privileged) and a forcible breaking and entering into premises, a distinction which does back hundreds of years in both the civil and the criminal law. To secure evidence the Constitution may permit the one but it certainly does not permit the other. To quote from the concurring opinion of Mr. Justice Jackson in McDonald v. United States, 335 U.S. 451, 458–459, 69 S.Ct. 191, 195, 93 L.Ed. 153: ‘Here the police gained access to their peeking post by means that were not merely unauthorized but by means that were forbidden by law and denounced as criminal. In prying up the porch window and climbing into the landlady's bedroom, they were guilty of breaking and entering—a felony in law and a crime far more serious than the one they were engaged in suppressing. Having forced an entry without either a search warrant or an arrest warrant to justify it, the felonious character of their entry, it seems to me, followed every step of their journey inside the house and tainted its fruits with illegality.’

Under the prohibitions of the state and federal constitutions against unreasonable search and seizure, reasonable cause to believe that criminal acts are being committed is not sufficient cause to justify breaking and entering premises to conduct a search without a warrant. (Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191; People v. Edgar, 60 Cal.2d 171, 174–176, 32 Cal.Rptr. 41, 383 P.2d 449.)

‘Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.’ (Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6.)

The writ is granted. The observations of the polic from the roof, the attic, and the upstairs office are to be excluded from evidence in any further trial of these cases.

FLEMING, Justice.

HERNDON, Acting P.J., and KINCAID, J. pro tem., concur.

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