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District Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Ester VERRETTE, Defendant and Appellant.

Crim. 4414.

Decided: January 09, 1964

Garfield W. Steward, San Francisco, for appellant. Stanley Mosk, Atty. Gen., of California, Albert W. Harris, Jr., John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

Appellant was convicted of violation of Health and Safety Code, section 11530.5 (possession of marijuana for sale), sentenced to prison, and appeals from the judgment.

There was evidence that on February 8, 1963 at about 8 p. m. police officers were watching a building at 1528 Haight Street, San Francisco. The officers had information from an undisclosed informant that narcotics had been sold there, and one officer had purchased narcotics in the building. The building is a three story structure. The street floor is occupied by a shoe store and there are two residential apartments above the shoe store. At 10:30 p. m. officers observed a Mr. Fisher enter the premises. Shortly after midnight a Mr. Thomas entered, empty handed. About 15 minutes later Thomas came out, carrying a brown bag. He was arrested, and the officers thought the bag contained marijuana. The officers then approached the entrance to the building and Fisher appeared at the door. The officers identified themselves and as they did so Fisher dropped a bar he was carrying and called out: ‘Ester, the cops, destroy.’ Two officers stepped past Fisher and rushed up the stairs leading to rooms and apartments on the upper floors. At the first stair landing the officers saw appellant standing in the doorway of her room, dressed in black pants, bra, and little else. The officers called out their identification and asked to speak with appellant, but appellant promptly slammed her door shut. The evidence is clear that the officers then immediately used force sufficient to break open the door, and in the process damaged the moulding and the area about the door catch. Once in appellant's room the officers conducted a general search and found marijuana. In their search the officers stripped appellant's bed and found over a thousand dollars in cash hidden between the covers. It is admitted that the police officers here possessed no warrant for arrest or search.

At trial appellant made proper objection to the introduction of evidence obtained from her room on the ground of illegal search and seizure, but the objection was overruled. On appeal appellant contends the officers had no reasonable cause to arrest her and hence the evidence against her was obtained by unlawful search and seizure. The contention has merit in this case, and requires reversal of the judgment.

California Penal Code, section 836(3) permits a police officer to arrest without warrant when as officer ‘has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.’ In People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580, our Supreme Court defined reasonable cause to be ‘a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.’ Here, if it is determined that reasonable cause for the arrest of appellant did not exist at the time the officers broke into her room, then evidence discovered by the later search would not justify the arrest. (People v. Haven, 59 Cal.2d 713, 719, 31 Cal.Rptr. 47, 381 P.2d 927; People v. Brown, 45 Cal.2d 640, 643–645, 290 P.2d 528.) The respondent contends the following facts establish probable cause for arrest and search: The police had information concerning the sale of narcotics at these premises; Thomas came from the building with a bag containing what appeared to be narcotics; Fisher, when stopped by the officers, shouted Ester, the cops, destroy'; and finally, the appellant slammed her door when the officers sought to speak with her.

We cannot agree that reasonable cause to arrest and search is shown from the above fact, for there is nothing in the record before us to show that when Thomas emerged from the premises and was arrested, the officers had any knowledge at all of appellant. It is equally clear that when the officers confronted Fisher at the door and he called out his warning, the officers had no knowledge of appellant. As the officers raced up the stairs and saw appellant standing in her doorway they did not know who she was, whether or not her name was Ester, or if she had any connection with the man detained on a lower floor. There were other doors facing the stairs, and these opened into other rooms and apartments on the same floor. Before appellant slammed her door shut the officers saw nothing in her room which would in any way corroborate anything said by Fisher, or suggest any illegal activity on her part.

It has often been held that the mere fact that one is in the company of a person known to have committed a crime is not enough to justify the police in making an arrest and search. (People v. Kitchens, 46 Cal.2d 260, 263, 294 P.2d 17; People v. Boyd, 173 Cal.App.2d 537, 539, 343 P.2d 283; People v. Green, 152 Cal.App.2d 886, 313 P.2d 955; People v. Yet Ning Yee, 145 Cal.App.2d 513, 517, 302, p.2d 616; People v. Schraier, 141 Cal.App.2d 600, 602–604, 297 P.2d 81.) Thus appellant's presence in the near vicinity of one arrested for a criminal offense would not of itself justify her arrest. If it may be said that Fisher was an informer, then he was a first-time informer, whose reliability had not been established. (Willson v. Superior Court, 46 Cal.2d 291, 294–295, 294 P.2d 36.) The shouted cry of warning by him could not alone justify arrest and search by the officers. (People v. Cedeno, 218 A.C.A. 229, 32 Cal.Rptr. 246; see also Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 441.) It appears that the officers, in seeking out appellant, relied largely upon here mere presence in the building and the words shouted by Fisher. Nothing appears, however, prior to entry into appellant's room, to connect her with the words called out by Fisher; no illegal conduct on her part was seen by the officers, and there is nothing to corroborate anything said by Fisher. Hence, up to the time appellant slammed her door it is clear the officers did not have reasonable cause to arrest her.

It is contended that appellant's act of slamming her door after the officers identified themselves and asked to speak with her is such furtive conduct on her part that it constitutes probable cause for her arrest and justifies the subsequent entry, search and seizure. This contention cannot be supported here. As we have said, appellant stood in her doorway dressed in something less than street clothing. The hour was past midnight. There was no duty then resting upon her to admit anyone to her rooms, nor do the facts disclose any right on the part of the police to enter. After the door was shut, the officers immediately broke in the door, and thus did not hear any suspicious sounds emanating from within the room. The holding in Tompkins v. Superior Court, 59 Cal.2d 65, 27 Cal.Rptr. 889, 373 P.2d 113 is decisive of the issue here. In Tompkins the police arrested one Edward Nieman who possessed narcotics. Nieman lived in an apartment with Tompkins. The police, without a warrant, but with Nieman's consent, went to search the apartment. Tompkins appeared at the door and when informed it was the police, ‘made a motion with his arm to the left and slammed the door shut.’ The police broke in and found narcotics. The Supreme Court held that until the police kicked the door in, there was no reasonable cause to arrest Tompkins. There, as here, the issue was whether slamming the door shut gave rise to reasonable cause to arrest. The court said: ‘Petitioner's apparent motioning of someone away from the door and closing it in Inspector Martin's face did not provide the missing elements of reasonable cause to believe that petitioner was guilty of a felony. * * * If refusal of permission to enter could convert mere suspicion of crime into probable cause to arrest the occupant and search his home, such suspicion alone would become the test of the right to enter, and the right to be free from unreasonable police intrusions would be vitiated by its mere assertion.’ (See Wong Sun v. United States, supra; People v. Cedeno, supra, at 235, 236 of 218 A.C.A., at 250–251 of 32 Cal.Rptr.)

We find reasonable cause to arrest appellant is absent from the record before us, and it necessarily follows that the forcible entry into her room by the officers and the subsequent search and seizure violated her rights under both Federal and State Constitutions. All evidence therefore, the product of illegal search, was inadmissible at trial. (People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513.)

The judgment is reversed.

SALSMAN, Justice.

DRAPER, P. J., and DEVINE, J., concur.