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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel BOONE, Defendant and Appellant.

Cr. 15752.

Decided: October 03, 1969

Richard H. Levin,* Los Angeles, for appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Lola M. McAlpin, Deputy Atty. Gen., for respondent.

For Opinion Rehearing, see 82 Cal.rptr. 566.

Appellant Daniel Boone and his daughter-in-law, Betty Lou Boone, were charged in Count I with possession of marijuana (Health & Saf.Code, § 11530), and in Count II with possession of benzedrine for sale (Health & Saf.Code, § 11911).   After motions to suppress evidence under Penal Code section 1538.5 had been denied, appellant was convicted on both counts, and Betty Lou Boone was acquitted.

During the last week in December 1967 Peter Finnigan of the Narcotics Bureau of the Los Angeles County Sheriff's Department heard from a reliable, confidential informant that in September 1967 a gray-haired man who walked with a cane had sold a quarter of an ounce of heroin to the informant at 6020 Buell Street in Bell Gardens.   The gray-haired man lived at that address with a younger couple, and, according to the informant, narcotics were currently being trafficked at that address.

In early January 1968 Deputy Finnigan heard from a patrol officer about heavy vehicular and foot traffic at 6020 Buell Street.   He also received a phone call from an anonymous caller, who said that odd-looking people were making brief visits to the premises at all hours of the day and night.   The caller said he told Lester Boone, who lived there, to tell his dope-addict friends to be quiet, and Boone said he would.   The utilities at the house were listed under the name of Lester Boone.   On 23 January 1968 Deputy Finnigan surveyed 6020 Buell Street for several hours.   During that period seven vehicles stopped in front of the house, and on each occasion a young man came out of the house and conversed with the occupants of the vehicle.   On 24 January the address was again watched.   One James Ashby and another man, a known narcotic violator, drove up to the front of the house, and the latter went into the house for about two minutes.   When they left they were stopped by police, and Ashby was found to possess narcotics.

On 5 February 1968 Deputy Finnigan and two other officers surveyed 6020 Buell Street once more.   About 8:20 p.m. two men went into the house for a couple of minutes and then drove away.   The officers followed them and examined them for narcotic use with negative results.   One of them was a known narcotic violator.   The three officers then returned to the Buell Street address, got out of their vehicle, and approached the house.   Their vehicle was unmarked, they were not in uniform, and they had no arrest or search warrant. As they walked toward the front door Betty Lou Boone opened the curtains of the bedroom window at the northeast corner of the house.   When she saw three men approaching the house she closed the curtains and started to run through the living room toward the back of the house.   Her conduct persuaded Deputy Finnigan that she intended to dispose of contraband by flushing it down a toilet located in the back of the house.   He and the other officers immediately forced an entry into the house without identifying themselves and demanding admittance.

As the officers entered the front door they heard a toilet located off the southwest bedroom flush, and saw Betty Lou Boone approach the door of the southwest bedroom.   They detained her and then saw “the bathroom door open and the defendant Daniel Boone standing in the bedroom, in the southwest bedroom.”   The two Boones were arrested, and the southwest bedroom was searched.   In a chest of drawers beneath some men's clothing they found marijuana and foil-wrapped benzedrine pills, the latter in sufficient quantity to suggest possession for sale.

The Arrest and Incident Search

 The officers had been told by a reliable informant that narcotics were being regularly trafficked in the house, and that a purchase had been made by the informant himself in September 1967.   They had received two reports of heavy traffic at the house in January 1968, one from a patrol officer, and one from an anonymous caller.   They watched this traffic on 23 January, 24 January, and 5 February, and discovered that its participants included known narcotic violators and a person in possession of narcotics.   This information furnished sufficient reasonable cause for the arrests.  (People v. Prewitt, 52 Cal.2d 330, 341 P.2d 1;  People v. Herrera, 221 Cal.App.2d 8, 34 Cal.Rptr. 305.)

The cases relied upon by appellant are inapposite.   In People v. Reeves, 61 Cal.2d 268, 274, 38 Cal.Rptr. 1, 391 P.2d 393, the police had information from an unproved informant that defendants were presently in possession of marijuana but they had not corroborated this information.   The same was true in People v. West, 237 Cal.App.2d 801, 808, 47 Cal.Rptr. 341, 347, where we said that “had the police * * over a period of time observed a stream of known narcotics users flowing in and out of West's apartment,” the corroboration might have been sufficient.   In People v. Amos, 181 Cal.App.2d 506, 5 Cal.Rptr. 451, the police had no corroboration that the defendant was dealing in narcotics.   In the case at bench we have both the report of a reliable informant and logical inferences drawn from direct observation.   Together these provided reasonable cause for the arrests.

 The search conducted as an incident to valid arrests was reasonable and proper.  (United States v. Rabinowitx, 339 U.S. 56, 66, 70 S.Ct. 430, 94 L.Ed. 653;  Ker v. California, 374 U.S. 23, 42, 83 S.Ct. 1623, 10 L.Ed.2d 726.)   We have heretofore expressed our view that the rule announced by the United States Supreme Court on 23 June 1969 in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, a rule which limits searches incident to an arrest to the immediate area under the arrested person's control, does not apply retroactively to searches conducted before the date of that decision.  (People v. Chambers, 275 A.C.A. 435, 443–444, 80 Cal.Rptr. 672;  People v. Castillo, 274 A.C.A. 549, 553–555, 80 Cal.Rptr. 211.)   That view has now been adopted by the California Supreme Court.  (See People v. Edwards, 71 A.C. –––, 80 Cal.Rptr. 633, 458 P.2d 713;  cf. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248.)

Legality of Entry

 Concededly, the arresting officers did not comply with the requirement of Penal Code section 844 that a peace officer demand admittance and explain the purpose for which he desires admittance before breaking a door to make an arrest.   The issue here is whether compliance is excused because of the need to prevent destruction of evidence.   The applicable law has recently been summarized in People v. De Santiago, 71 A.C. 18, 29, 76 Cal.Rptr. 809, 816, 453 P.2d 353, 360:  “ * * * when officers prior to entry are able to detect activity from within which leads them to reasonably conclude that the occupants are then engaged in the destruction or concealment of evidence [citations], an unannounced entry may be justified.   In these cases, however, compliance with the applicable knock-and-notice provision is excused not because of a blanket rule based on the type of crime involved but because the particular circumstances of the case given rise to a reasonable belief that immediate action is necessary to prevent the destruction of physical evidence.”

Did the particular circumstances of this case justify an unannounced entry?   In People v. Berutko, 71 A.C. 89, 77 Cal.Rptr. 217, 453 P.2d 721, a narcotic case, the police made an entry which did not comply with section 844 and for excuse relied upon the suspect's repeated glances out the window of his apartment, which conduct, they argued, reasonably entitled them to infer that contraband would be quickly disposed of as soon as the presence of law enforcement officers became known to the suspect.   The court held these facts insufficient to support a reasonable belief that evidence was about to be destroyed and thus excuse a demand for entry.

The case at bench presents a stronger showing of potential destruction of evidence than that made in Berutko.   Like Berutko, a suspect was looking out the window.   But additionally, on the arrival of the police the suspect closed the curtains and ran from the front bedroom through the living room toward the area of the house in which a toilet was located.   The prosecution argues the police were reasonably entitled to conclude that the suspect, deducting here visitors were plan-clothesmen, was hurrying to dispose of contraband.

The prototype case of circumstances which excuse compliance with Penal Code section 844 is People v. Maddox, 46 Cal.2d 301, 294 P.2d 6.   In that case, the police, having cause to make an arrest, knocked on a suspect's door and thereafter heard a voice telling them to wait a minute and the sound of retreating footsteps.   They broke in the door, made an arrest, and in a search incident to the arrest discovered narcotics.   In upholding the entry the court formulated the rule that an officer who has reasonable cause to believe evidence is about to be destroyed while he is making an arrest, may act to prevent its destruction.   From Maddox we see there are two essential elements in the rule which permits non-compliance with section 844—(1) the approach of the police has become known to the suspect, and (2) the suspect's reaction suggests to the police he is about to destroy evidence.   In Maddox, the approach of the police was disclosed by their knock on the door, and the suspect's reaction was evidence by the sound of retreating footsteps.   In the present case, according to the testimony, the police were spotted by the suspect before they reached the house, and the suspect was seen by the police running in the direction of a toilet.   Here both action and reaction occurred before the police had a chance to knock on the door.   We do not believe this acceleration in the timing of the action and reaction distinguishes the case in any significant respect from Maddox, for aparet from the difference between knowledge acquired by sound and knowledge acquired by sight the essentials in both cases are the same.   In each instance the reaction of the suspect to the approach of the police gave rise to a reasonable inference that contraband was about to be destroyed.   The fact that the suspect's reaction occurred before the police had a chance to knock on the door, far from detracting from the force of the inference, adds to its strength.

 The trial court concluded that there was a reasonable basis for the belief of the police that contraband was about to be destroyed, that the unannounced entry onto the premises was made by the police in good faith, and therefore the police were excused from compliance with Penal Code section 844.   We find substantial evidence to support its determination.  (People v. Maddox, 46 Cal.2d 301, 294 P.2d 6.)

Sufficiency of Evidence

 Defendant lived in a house and was arrested in a bedroom where a supply of narcotics was discovered in a chest of drawers under men's clothing.   He was seen next to the open door of a bathroom whose toilet had been flushed immediately after the residents of the house were alerted to an impending visitation by the police.   This evidence suffices to support a conviction for possession of narcotics.  (People v. Roberts, 228 Cal.Ap.2d 722, 726–729, 39 Cal.Rptr. 843;  People v. Villaneuva, 220 Cal.App.2d 443, 450, 33 Cal.Rptr. 811;  People v. Yeoman, 261 Cal.App.2d 338, 346–347, 67 Cal.Rptr. 869.)

The order denying motion for a new trial is non-appealable and is therefore dismissed.

The judgment is affirmed.