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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Lynn MARSHALL, Defendant and Appellant.

Cr. 2793.

Decided: December 22, 1967

Daniel L. Schlegel, under appointment by the Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen., for plaintiff and respondent.


Acting on information received on October 30, 1966 from Donald Battersby, who was then in custody, Officer Justin Epstein, working on the narcotic detail for the Newport Beach Police Department, contacted Detective Hollingsworth of the Huntington Beach Police Department. Mr. Battersby had previously informed Officer Epstein that he was acquainted with one Mathews and could buy some marijuana from him. He told Officer Epstein where Mathews lived in the Huntington Beach area and offered to try to purchase some marijuana from him.

Officer Epstein had been working on the narcotic detail approximately 12 years. He was personally acquainted with Mathews as being involved in narcotic traffic in the area and had had several contacts with him in 1966.

About 7:45 p. m. on October 30, Detectives Hollingsworth and Trion of the Huntington Beach Police Department, Detective Hamilton and Officer Epstein of the Newport Beach Police Department and Battersby arrived at a vantage point across the street from Apartment No. 6 at 218 Chicago Street in Huntington Beach. They were in an unmarked police car. The apartment was jointly occupied by defendant and Mathews. Although also charged and convicted, we are not aware of any appeal by Mathews.

After being searched, Mr. Battersby was given a five dollar bill with which to purchase marijuana. He was instructed to go to the apartment. He was seen entering and leaving the apartment, returning to the police vehicle about 20 minutes after he left it. He handed Officer Epstein a cellophane-type bag containing a quantity of marijuana, and returned the five dollar bill. He stated that he obtained the marijuana from defendant, that defendant No. 6 on the second level of the apartment house, that he, Battersby, had seen a brown paper bag that contained more of the cellophane bags of marijuana, and also, that he did not have to pay for the marijuana for defendant Marshall had given it to him. There was a distinct sweet odor coming from the bag as though the contents were saturated with wine. Battersby also stated that the defendant, a boy named Fred and a girl were in the apartment. Battersby was taken to the Huntington Beach Police Department in another police vehicle later brought to the scene for that purpose.

The entrance to Apartment No. 6 was a large sliding glass door. It was the expressed intent of the officers to arrest the defendant Marshall. Detective Trion attempted to contact the manager of the apartment. He couldn's find anyone on the premises, but did obtain a phone number. The Huntington Beach Police Department was radioed the phone number, but they were unable to contact the manager by telephone. Huntington Beach Police Department was again contacted by the waiting officers, and Sergeant Archer, an officer of that department, who could pick a lock, a arrived at about 8:30 p. m. None of the waiting officers was charged with the duty of observing the apartment during the intervening period, nor did any of them constantly do so.

With the intent to arrest defendant, the officers proceeded to the apartment area. Battersby had said the occupants of the apartment were going to a Halloween party but at the time the officers approached the apartment, they believed no one had left the apartment.

During this period, the officers had also questioned whether they should go up, break the door down and arrest all persons inside, or whether, they should take the time to secure a search warrant to gain entry. They discussed the almost physical impossibility of obtaining a search warrant at the police department, getting hold of a deputy district attorney to assist them in drawing up the papers, and getting hold of a judge after obtaining the written papers, all on a Sunday night. They decided to go ahead and make the arrest in the absence of either a search or an arrest warrant.

Detective Hollingsworth and Sergeant Archer went to the front door of Apartment No. 6. The drapes were drawn across the doorway (the sliding glass door). Detective Hollingsworth knocked several times, but received no reply. He announced they were police officers and demanded entry. After first trying the door, Sergeant Archer picked the lock on the front door. They were in front of the apartment probably ten minutes.

After Sergeant Archer opened the lock, the officers went inside. It was then 8:40 p. m.

As the officers entered they had their guns drawn. There was no one in the living room area. Officer Epstein checked the bedroom-bathroom area. No one was in the bathroom. In the bedroom was a recessed sliding door-type closet about six feet wide. The door of the closet was open, having been slid to the right. No one was in the closet. No one was in the apartment.

After an initial cursory check, which disclosed no one was present, Officer Epstein noted a sweet odor, similar to the odor that emanated from the package of marijuana they had obtained from Mr. Battersby. It was coming from a cardboard box that was sitting on the floor inside of the open part of the closet. Inside of the box was a large ‘Alpha Beta’ grocery bag, a brown paper bag. There were also some T-shirts in the box but they did not cover the bag. The distinct sweet odor was emanating from the bag. Officer Epstein took the bag from the box, and opened it up. Inside of the bag were 21 plastic bags, each containing a green leafy vegetable material, marijuana, similar to the bag Mr. Battersby had brought from the apartment. Thereafter, an exhaustive search was made of the apartment for other contraband, and numerous items were seized. It was then about 9:30 p. m.

Mathews (not a party to this appeal) came into the apartment at about 10:45–10:55 p. m. with three other persons. Mathews was placed under arrest. Around 12:30–12:45 a. m., Officer Epstein and Detectives Hamilton and Hollingsworth left with Mathews and went to the Huntington Beach Police Department. Sergeant Archer and Detective Trion remained at the apartment. Detective Hollingsworth returned to the apartment about 1:10 to 1:20 a. m. About 1:30 a. m., defendant and another man came in the front door of the apartment. They were searched, identified and defendant was placed under arrest.

On this appeal, defendant contends the evidence obtained from the closet and throughout the apartment was the result of an illegal search and seizure, therefore, was improperly admitted into evidence over the objection of defendant. We agree with the defendant.

The police officers had no search warrant when they entered the apartment, nor had they made an effort to obtain one.

The defendant established a prima facie case that the entry, search and seizure were illegal by showing they were conducted without a search warrant; therefore, the burden was upon the prosecution to prove proper justification for the search and seizure. (People v. King, 60 Cal.2d 308, 311, 32 Cal.Rptr. 825, 384 P.2d 153; People v. Cruz, 61 Cal.2d 861, 865, 40 Cal.Rptr. 841, 395 P.2d 889; People v. Haven, 59 Cal.2d 713, 717, 31 Cal.Rptr. 47, 381 P.2d 927; Tompkins v. Superior Court, 59 Cal.2d 65, 67, 27 Cal.Rptr. 889, 378 P.2d 113; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23; People v. Currier, 232 Cal.App.2d 103, 110, 42 Cal.Rptr. 562.)

It is contended by the prosecution that the police officers had the right to enter the apartment in the described manner since the officers had reasonable and probable cause for the arrest of the defendant and the police officers believed defendant was in the apartment. The record, including the evidence, supports the prosecution in its contention the officers had reasonable and probable cause to arrest defendant but this does not in and of itself justify the breaking into the apartment in the manner they did.

In People v. Maddox, 46 Cal.2d 301, 294 P.2d 6, and cases cited therein, the Supreme Court excused the law enforcement officers from a strict compliance with the provisions of Section 844, Penal Code, when there is peril to the officer, or the arrest would be frustrated, or the felon would escape, or there is a reasonable ground for believing incriminating evidence would be destroyed. The principle of Maddox, supra, has been consistently followed. (People v. Gastelo, 67 Cal.2d 5861, 63 Cal.Rptr. 10, 432 P.2d 706; People v. Villanueva, 220 Cal.App.2d 443, 449, 33 Cal.Rptr. 811; People v. Bookout, 197 Cal.App.2d 457, 463, 17 Cal.Rptr. 213; People v. Shelton, 151 Cal.App.2d 587, 588, 311 P.2d 859; People v. Sayles, 140 Cal.App.2d 657, 661, 295 P.2d 579; People v. King, 140 Cal.App.2d 1, 7–9, 294 P.2d 972.)

The Attorney General cites no case for the authority that a law enforcement officer, having reasonable and probable cause for an arrest, can forcibly effect an entry into an unoccupied apartment solely on that basis, pursuant to Penal Code, Section 844. In the case at bench, the apartment was dark, no noises of any kind emanated from the apartment, the officers were not certain the defendant was in the apartment, the lives of the officers were not in peril, and the officers were admittedly not apprehensive that incriminating evidence would be destroyed. The officers conversed among themselves as to the advisability of obtaining a search warrant, but decided to break in by obtaining the services of a locksmith from the local law enforcement agency. There was a delay in obtaining his services and a delay by him getting into the apartment after his arrival. The officers had failed to maintain a constant observation of the apartment during the intervening period; Battersby had told the officers that the apartment's occupants were leaving shortly for a party; as the officers approached the apartment, they noted no lights were visible in contrast to its formerly observed condition; and at no time did they hear any sound emanating from the apartment. From these factors, we must conclude the officers were not authorized by Penal Code, Section 844, to effect an entry into an unoccupied apartment. (See People v. Stephens, 249 Cal.App.2d 1131, 57 Cal.Rptr. 66; Miller v. United States, 357 U.S. 301, 308, 78 S.Ct. 1190, 2 L.Ed.2d 1332.

As stated in People v. Gastelo, supra, 67 Cal.2d 5862, 63 Cal.Rptr. 10, 432 P.2d 706:

‘Just as the police must have some sufficiently particular reason to enter [a home] at all, so must they have some particular reason to enter in the manner chosen.’

There was no particular reason for the officers to enter as they did.

However, accepting the prosecution's postulation as correct, which we do not concede, the officers, after breaking into the apartment, found there was no person present, therefore, no arrest of defendant could be accomplished. Having made this determination, the officers then proceeded to search the apartment eventually finding the wine-soaked marijuana which was later introduced into evidence. Having found contraband, the officers waited in the apartment for the defendant. Over 4 hours later, defendant came into the apartment where he was arrested.

Upon that state of the evidence the prosecution urges the search was contemporaneous with the arrest. So far as criminal law is concerned, ‘contemporaneous' has been defined as ‘existing or happening in the same period of time.’ (Kolbrek & Porter, Law of Arrest, Search and Seizure, (1965), p. 321; People v. Burke, 61 Cal.2d 575, 579–580, 39 Cal.Rptr. 531, 394 P.2d 67.) The same rule is applicable where this contention is made of a search incident to a lawful arrest.

‘* * * there can be no search of a house without a search warrant except as an incident to a lawful arrest therein, and probable cause to believe that an article sought is concealed in the house furnishes no justification for a search of that place without a warrant.’ (People v. Burke, supra, 61 Cal.2d 575, 579, 39 Cal.Rptr. 531, 533, 394 P.2d 67, 69; Chapman v. United States, 365 U.S. 610, 613, 81 S.Ct. 776, 5 L.Ed.2d 828; People v. Shelton, 60 Cal.2d 740, 744, 36 Cal.Rptr. 433, 388 P.2d 665.)

Though the arrest took place over 4 hours after the officers broke into the apartment, we determine the prior search was not incidental to or contemporaneous with the arrest. Therefore, the search being illegal, the product of the search was improperly admitted into evidence.

It is to be noted the defendant was charged with possession of marijuana with intent to sell it. The evidence that defendant earlier had given marijuana to Battersby would only be foundational to probable cause for an arrest. The illegally obtained evidence was only substantial evidence supportive of the charged offense. Although a judgment in a criminal case will not be reversed because of illegally obtained evidence which is relatively insignificant, People v. Parham, 60 Cal.2d 378, 384–386, 33 Cal.Rptr. 497, 384 P.2d 1001, the error in admitting the evidence seized during the illegal search constituted a vital part of the proof of the offense against the defendant.

Judgment reversed.


FN1. 67 A.C. 596, 598–599..  FN1. 67 A.C. 596, 598–599.

FN1. 249 A.C.A. 125, 126–129..  FN1. 249 A.C.A. 125, 126–129.

FN2. 67 A.C. 596, 599..  FN2. 67 A.C. 596, 599.

McCABE, Presiding Justice.

KERRIGAN, and TAMURA, JJ., concur.

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