PEOPLE v. RAMEY

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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Piaintiff and Respondent, v. Michael Kenneth RAMEY, Defendant and Appellant.

Cr. 7673.

Decided: April 30, 1975

Evelle J. Younger, Atty. Gen., by Joel Cary and Robert Jibson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent. Harold D. Winingar, Jr., Sacramento, for defendant and appellant.

An information charged defendant with two narcotics offenses and possession of a sawed-off shotgun. After partial denial of defendant's motion to suppress, a plea bargain resulted in his plea of guilty to marijuana possession. He appeals under Penal Code section 1538.5(m), attacking denial of the suppression motion.

Marijuana and a loaded revolver were found in defendant's apartment when the police went there to arrest him without a warrant. The trial court refused to suppress these items (which were in defendant's immediate vicinity when he was arrested) but did suppress other items found in another room of the apartment.

A security guard named Turner was investigationg the burglary of his home. Several guns had been taken. Turner gave the police descriptions and serial numbers of the weapons. At 2 p. m. on a particular afternoon he telephoned the burglary division of the Sacramento Police Department and spoke to Officer Garcia, who had charge of the burglary investigation. He told Garcia that he had information that one of his guns (a .38 revolver) had been sold to defendant; that he had gone to defendant's apartment and asked him about the gun; that defendant admitted possessing the gun and, not knowing it was stolen, had sold it; that another person in the apartment showed Turner two handguns, both loaded. While Turner was in the apartment, defendant's brother entered. Officer Garcia knew the brother as a narcotics dealer. Turner told Garcia that he had seen a large quantity of marijuana in the living room of the apartment and several stereo sets as well.1

About three hours after his conversation with Turner, Garcia went to defendant's apartment with four or five detectives and two uniformed officers to arrest him for receiving stolen goods. He had neither an arrest nor a search warrant. When defendant opened the front door in response to Garcia's knock, Garcia identified himself and displayed his badge; a uniformed officer was standing behind him. Garcia had his pistol drawn. With the door still open, defendant started backing away in the direction of a portable bar which was located against a wall of the living room. Garcia and two other officers entered and followed defendant. As defendant was reaching behind the bar, one of the officers grasped his arm and placed him under arrest.

Garcia looked behind the portable bar and on a shelf found a loaded 45 caliber revolver, three cellophane baggies of marijuana, and a baggie containing approximately 50 pills which appeared to be benzedrine. Garcia, who had experience as a narcotics agent, also saw marijuana roaches in the ashtrays. Additionally, in the hole of a cement block used as a shelf support, he saw an eyeglass case with a baggie of marijuana protruding.

Officer Garcia testified that he considered Turner to be a reliable witness because Turner was a security officer and ‘a security officer holds more or less the same position as a police officer’; that Garcia previously had secured search warrants based on information from security officers; that Turner himself was a crime victim was another factor considered by Garcia.

Defendant argues that the uncorroborated information from Turner, an untested citizen-informer, was insufficient to provide probable cause for the arrest. He relies upon People v. Zimnicki (1972) 29 Cal.App.3d 577, 582, 105 Cal.Rptr. 614. The present case is unlike Zimnicki, which involved information from an unidentified hitchhiker. Here the informant had added credibility because he was a crime victim. A person who is both a victim and a witness to the crime is presumptively reliable even though his reliability has not previously been tested. (People v. Hill (1974) 12 Cal.3d 731, 761, 117 Cal.Rptr. 393.)

Where the trial court has found probable cause for a warrantless arrest, the appellate court will not set aside that finding if it is supported by substantial evidence. (People v. Levy (1971) 16 Cal.App.3d 327, 333, 94 Cal.Rptr. 25.) Contrary to defendant's contention, there was substantial evidence of probable cause for arrest, i. e., a reasonable and honest suspicion that defendant had committed a felony by receiving Turner's stolen revolver.

In his closing brief defendant asserts lack of compliance with Penal Code section 844. Although this is a new theory which we may disregard, it has no merit. The police did not indulge in an unannounced, surreptitious or forcible entry. They knocked on the door, defendant opened it and the officers identified themselves. Having information that there were several persons and several loaded guns in the apartment, Garcia acted reasonably by having his own pistol ready. When defendant started backing away into the living room, the officers could reasonably envision the possibility that he was about to secure a weapon and that a gun duel might ensue. Self-protection justified the officers in staying in close physical proximity to defendant and in following him into the apartment to assure themselves that he did not arm himself. The officers' failure to explain the purpose of their visit was excused by the necessity for preventing a violent confrontation. (People v. Peterson (1973) 9 Cal.3d 717, 723, 108 Cal.Rptr. 835, 511 P.2d 1187.) There was substantial compliance with Penal Code section 844.

Defendant charges that he did not consent to the officers' entry into his apartment but submitted to the entry at gunpoint. Neither consent nor submission was in issue. Neither the magistrate nor the superior court made an express or implied finding of consent. The officers entered the apartment in order to arrest defendant and in order to prevent him from arming himself.

In chronological terms, a separate issue precedes the emergency conditions which justified police entry into the apartment—whether the police acted lawfully by going to defendant's home to make a warrantless felony arrest under non-exigent circumstances. At this point defendant relies upon the fact that approximately three hours elapsed between the time of Turner's telephone call to the police and the police expedition to de fendant's apartment.

California decisions supply no firm answer to the question whether Fourth Amendment principles permit warrantless entry of a private home to make a felony arrest where the police have had time and opportunity to procure an arrest warrant. California statutes sanction the practice. Penal Code section 836, subdivision 3, authorizes police to make a warrantless arrest of a person reasonably suspected of a felony. When they believe the suspect is in a house, Penal Code section 844 Permits them to break in after complying with the ‘knock and explanation’ requirement.2

A number of California decisions directly or inferentially support the proposition that the police may make a warrantless arrest at the home of a person reasonably suspected of a felony, but these decisions do not inquire whether the police had time and opportunity to secure an arrest warrant. (E. g., People v. Hill, supra, 12 Cal.3d 757, 117 Cal.Rptr. 393; People v. Terry (1970) 2 Cal.3d 362, 393, 85 Cal.Rptr. 409, 466 P.2d 961; People v. Kellett (1969) 1 Cal.App.3d 704, 712–713, 81 Cal.Rptr. 917.) In sustaining an outdoor arrest of a felony suspect, at least one court has held that the opportunity to procure a warrant preceding the arrest does not affect the arrest's validity. (People v. Williams (1971) 17 Cal.App.3d 554, 562, 95 Cal.Rptr. 234.)

On the other hand, there is a basis for the view that the Fourth Amendment's demand for the interposition of a neutral magistrate between the citizen and the police is just as stringent for an arrest as for a search; that a felony arrest and incidental search at the suspect's home require an arrest warrant except under exigent circumstances. (Coolidge v. New Hampshire (1971) 403 U.S. 443, 447, 480–481, 91 S.Ct. 2022, 29 L.Ed.2d 564; note, 23 Stan.L.Rev. 994; cf. Ker v. California (1963) 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.) In Coolidge v. New Hampshire, supra, 403 U.S. at pages 477–478, 91 S.Ct. at page 2044, the majority opinion states: ‘It is clear, then, that the notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that seizures inside a man's house without warrant are per se unreasonable in the absence of some one of a number of well defined ‘exigent circumstances.”

In Warden v. Hayden (1967) 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, the court sustained a search of the premises after the police had entered in hot pursuit of a fleeing robber. The Hayden case involved and exigent, wide-ranging search of the premises, not an arrest and incidental search of the confined area within the suspect's reach. Indeed, the court disclaimed any attempt to justify the search as an incident of the arrest. (Id. at p. 299, 87 S.Ct. 1642.) Nevertheless, in Coolidge v. New Hampshire, supra, five members of the court expressed the view that Warden v. Hayden ‘certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances.’ (403 U.S. at pp. 480–481, 91 S.Ct. at p. 2045.)

At this point of his argument defendant relies on People v. Privett (1961) 55 Cal.2d 698, 12 Cal.Rptr. 874, 361 P.2d 602, where officers staked out the home of a burglary suspect, knocked on the front door and, receiving no response, kicked in the door, arrested the suspect and searched the premises. In Privett the court invalidated the entry and search, holding that the officers had ample opportunity to secure a warrant; holding that the facts before the arrest did not tend to connect any occupant of the house with any reported or known felony; holding that forcible and warrantless entry of the defendant's home violated Fourth Amendment principles. Although the Privett opinion spoke of the constitutional sanctity of a private home, those observations were surplus to the decision, for the arrest and search did not even measure up to the demands of Penal Code section 836.

As we view the facts of this case, we need not enter this relatively obscure corner of search and seizure law. Here, unlike Privett, the officers had reasonable ground to suspect the occupant of a felony before they arrived at his home. Approximately three hours earlier they had been reliably informed that defendant and at least one other person in the apartment had loaded, possibly stolen, handguns. When police receive word of the whereabouts of felony suspects with loaded guns, they need not halt for the drafting of affidavits and the solicitation of warrants before moving into action. They need take no more time than reasonably necessary to mount an expedition of sufficient size and power to accomplish their dangerous task effectively and safely. Officer Garcia testified that after receiving Turner's phone call he discussed the problem with his supervisor and ‘subsequently, around shortly after 5:00, we managed to get enough detectives together to go over to Mr. Ramey's residence.’ Appellate judges should not second-guess the police or indulge in refined conjectures when loaded guns in the hands of felony suspects threaten the public safety. The circumstances were sufficiently exigent to excuse what might otherwise be charged as an invasion of privacy. (See Terry v. Ohio (1968) 392 U.S. 1, 24–25, 88 S.Ct. 1868, 20 L.Ed.2d 889; Warden v. Hayden, supra, 387 U.S. at p. 298, 87 S.Ct. 1642; Schmerber v. California (1966) 384 U.S. 757, 770–771, 86 S.Ct. 1826, 16 L.Ed.2d 908; cf. Vale v. Louisiana (1970) 399 U.S. 30, 35, 90 S.Ct. 1969, 26 L.Ed.2d 409.)

Incidental to defendant's arrest, the officers could lawfully search an area within their immediate control, i. e., the area in which he might have ready access to weapons or evidence. (Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; People v. Superior Court (Manfredo) (1971) 17 Cal.App.3d 195, 202, 94 Cal.Rptr. 643.) The 45 caliber revolver, the marijuana and the pills found behind the portable bar, the marijuana baggie in the eyeglass case, could lawfully be seized either as an incident to the arrest or under the plain view doctrine.

Judgment affirmed.

FOOTNOTES

1.  Garcia testified that Turner had told him about the marijuana and stereo sets. Turner denied having told Garcia of these items. In this proceeding we view the evidence in the light most favorable to the trial court's disposition of the motion to suppress. (People v. Martin (1973) 9 Cal.3d 687, 692, 108 Cal.Rptr. 809, 511 P.2d 1161.)

2.  Evidence in the present case illustrates a police belief that the law dispenses with the necessity for a warrant for a felony arrest at the suspect's home. At the suppression hearing Officer Garcia was asked whether he had made any effort to secure an arrest warrant. He responded: ‘That is not out practice in burglary. We just go out and arrest the people when they're readily available.’

FRIEDMAN, Acting Presiding Justice.

REGAN and JANES, JJ., concur.

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