PEOPLE v. WETZEL

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Court of Appeal, Second District, Division 5, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Sherrie Jean WETZEL, Defendant and Appellant.

Cr. 21620.

Decided: February 21, 1973

Kathleen J. Kirkland, Alhambra, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Norman H. Sokolow and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was charged in Count I of the information with possession of seconal (Health & Saf.Code, § 11910) and in Count II with resisting, delaying and obstructing a police officer in the discharge of his duties (Pen.Code, § 148). Motions under sections 995 and 1538.5 of the Penal Code were denied. Defendant withdrew a plea of not guilty and pleaded guilty to Count I. Count II was dismissed. Proceedings were suspended and defendant was placed on five years' probation on various terms and conditions. She appeals from the judgment (order granting probation). (Pen.Code, § 1538.5(m).)

The facts adduced in connection with the motion to suppress were as follows: At about 4:00 a. m., May 11, 1971, Officer Barras of the Lynwood Police Department went to the location of 3359 Century Boulevard in response to a radio call that there was a burglary in progress. There he was flagged down by a Mr. Baker who told him that he had seen the front window of a store being smashed and had observed three juveniles flee through the buildings at 3355 Century and run north. Other units arrived and the officers began searching the area. Barras returned to the location and spoke to Baker again. Baker said that he had seen one of the suspects, whom he identified as one Passarelli, run into the parking lot of a candy store. Barras went to that location and apprehended Passarelli. He again returned and spoke to Baker who told him that he had seen a second suspect run into Room 3 at 3359 Century which was an apartment building. Barras proceeded to that location in the company of Sergeant Jewell and Baker, who said that he could identify the two remaining suspects, whom he described as ‘dark complected’ juveniles, if he saw them again. Barras found the door of the designated apartment open sufficiently wide to allow a person to walk through it. He looked inside the apartment and observed a bed immediately to the right of the door. Defendant was asleep on the bed. A male person was also lying on the bed and appeared to be asleep. From his position at the door Barras was unable to tell if the male on the bed was one of the suspects or not. A young woman and an infant were asleep on the floor. All the people in the apartment were fully clothed.

Barras knocked at the door for several minutes attempting to arouse someone. Defendant awoke. She knelt on the bed and asked what the officer wanted. Barras advised her that a store had been robbed and that a suspect had been seen entering her room. He asked for permission to come in. Defendant said, ‘Get the hell out of here if you don's have a damn warrant.’ Barras repeated his explanation of why he was there. Defendant said, ‘Get the fuck out of here if you don't have a search warrant.’ Barras continued his conversation with defendant which consisted of his reiterating that he wanted permission to come in and look for a burglary suspect who was seen entering her room and defendant repeating, with profanity, that she would not give the officers permission to enter without a warrant.

Barras made no effort to enter the apartment during this time. Neither did he make any effort to obtain a closer look at the male still sleeping on the bed, nor have Baker attempt to get a look at him. The officer was familiar with the layout of the apartment having been to other apartments in the building on previous occasions. It was a one room apartment with a kitchenette as part of the room. There was a separate bathroom, the door of which was closed. Barras could see the entire apartment from the doorway except for the interior of the bathroom.

The officer advised defendant that no warrant was needed for him to enter given the circumstances. Barras regarded the situation as one involving hot pursuit of a felon which eliminated the need for a warrant. He asked for defendant's permission to enter partly because ‘it was a nice way’ of proceeding and partly to stall for time so that back up units could reach and surround the location. He intended to enter whether permission was granted or not.

After the conversation between Barras and defendant had continued for several minutes, defendant got off the bed and stood in the open doorway. She would then have had to move for the officer to get inside the apartment. She continued to repeat that the officers should leave unless they had a search warrant. Defendant was asked repeatedly to move and told that if she did not, she would be arrested for interfering with the officers in the performance of their duty. Defendant again asked the officers to leave. Barras and Jewell grabbed defendant's arm, pushed her to one side, handcuffed and arrested her. Possibly three to six minutes had elapsed from the time Barras arrived at the apartment until the time he arrested defendant.1

At the time Barras sought entry to the apartment he believed the burglary suspect was hiding inside. He also believed that defendant was blocking the doorway in an effort to aid and abet the suspect's concealment.

The suspect the officers were seeking was not found inside the apartment, but as defendant was being transported to the police vehicle, the suspect approached the apartment from outside the premises. He turned out to be the brother of the young man who had been asleep on the bed with defendant.

At the police station a routine booking search of defendant disclosed the contraband which formed the basis for the offense charged in Count I.

Defendant testified in her own behalf that the officers were already inside the apartment when she awoke and that she heard no knocking at all. She told the officers that they had better have a warrant and she was arrested. The apartment door was closed, but not locked when she went to bed.

Lawreen Bell testified that she was the female sleeping on the floor in defendant's apartment when the officers arrived. Miss Bell was 15 years old. She had been baby-sitting with defendant's child. She corroborated defendant's testimony that the officers were already inside the apartment when defendant awoke.

Jerry DeHaro was 17 years old. He was the young man asleep on the bed with defendant. He did not wake up until after the officers were in the room.

On this appeal defendant contends that the officer lacked probable cause to arrest her and that the contraband which was the fruit of that arrest should therefore have been suppressed. The questions which this court must consider are whether the officer was properly performing his duties and whether the trier of fact could find that the officer reasonably believed defendant to be obstructing, delaying or interfering with his performance of those duties. Our review of the record compels an affirmative answer to each of those questions.

Barras responded to the report of a burglary in progress. At the location he saw physical evidence of the crime and spoke with an apparent witness thereto. Although Baker is not identified as a victim of the crime, it is clear from the surrounding circumstances that he qualified as a ‘citizen informant.’ As such the information he provided was sufficient for an arrest of the suspects he identified. (Krauss v. Superior Court, 5 Cal.3d 418, 96 Cal.Rptr. 455, 487 P.2d 1023; People v. Guidry, 262 Cal.App.2d 495, 68 Cal.Rptr. 794.) Baker's information as to Passarelli's whereabouts was sufficiently accurate to enable officers to effect that suspect's arrest. Barras was justified in believing that Baker's information was also accurate when he claimed that the second suspect had entered defendant's apartment. Barras, therefore, had a right to enter defendant's apartment to effect an arrest. No warrant was needed (Pen.Code, § 836), and upon identifying himself and stating his purpose, the officer was entitled to force entry if necessary (Pen.Code, § 844). He thus was properly conducting his duties when he confronted defendant and requested admittance to her apartment.

Furthermore, the officer having explained the reason for his presence and having correctly advised defendant that he had a right to enter without a warrant, the court below could properly fine that he was reasonable in his belief that defendant was aiding and abetting in the concealment of a felon by blocking entry to the premises.

While it is true that the officer delayed his entry into the premises to enable back up units to arrive and not because defendant presented an insurmountable physical barrier, the fact remains that at the moment he wished to enter defendant was still blocking the doorway, that she thereby obstructed his entry to the premises, that she had been advised that this constituted a violation of section 148 of the Penal Code, that she still refused to let him in and thus delayed him in the performance of his duties. The officer therefore had probable cause to arrest her at the time he acted.

The instant case is distinguishable from People v. Cressey, 2 Cal.3d 836, 87 Cal.Rptr. 699, 471 P.2d 19, cited in the dissent in that Cressey's conduct was merely a passive refusal to cooperate whereas defendant actively interposed herself in the officer's path and obstructed his entry.

Since the contraband was the fruit of a search of defendant's person pursuant to a lawful arrest, it was properly admitted in evidence.

The judgment (order granting probation) is affirmed.

I dissent.

On this record, the prosecution seeks to transpose an individual's assertion of what was believed to be a constitutional right against entry of the officers without a search warrant, into resisting an officer and interfering with his duties. Such bootstrapping is unconscionable, and to hold otherwise is to say that when an officer seeks consent to enter, the choice is to consent or be arrested; what kind of Hobson's choice is that? It was about 4:00 a. m. Defendant, like the others in the one-room apartment, was asleep. The officers awakened defendant and sought consent to enter and to search. Defendant, with unladylike resort to profanity, refused to give consent and stood arguing the officer's right to enter without a warrant. Since she did not remove herself from the entryway (which would have been logical to construe as a consent to enter), she was placed under arrest for interference. The case of People v. Cressey, 2 Cal.3d 836, 841–842, fn. 6, 87 Cal.Rptr. 699, 704, 471 P.2d 19, 23,1 amply supports the actions of defendant. There was no physical act by the defendant to prevent the officers from entering. Officer Barras testified regarding the confrontation, as follows: ‘As I recall, sir, she stepped off the bed and she recall, sir, she stepped off the bed and she was in front of the door. Upon advising her numerous times to move and she refused to, we advised her that if she didn't move, that she would be placed under arrest for interfering with us in performance of our duty. She failed to move. We then placed her under arrest and began our search of the apartment for the suspect. Q. How did you move her? A. Grabbed her, turned her around, and put the handcuffs on, sir. . . .. Q. Whatever occurred between you and [defendant] at the door did not bar you from making an entry and bar you from making a search; you performed your duties as you desired to do them? A. Yes, I did. . . .. Q. Did she make any statements indicating to you that you were going to have to move her out of the way? A. Not in those exact words. Q. In other words, she was just saying words to the effect that she had said earlier, ‘You're not going in here unless you have a warrant,’ or maybe language a little more unladylike? A. Yes, sir.' Officer Jewell testified that he was the one who physically placed defendant under arrest: ‘Q. And that was accomplished by turning her around and handcuffing her? A. Yes. Q. Was it difficult for you to handcuff her, to turn her around in the manner you described? A. No. q. It wasn't too difficult for you to do that? A. No. Q. She wasn't physically resisting? A. Not at that time.’ (I add that the record does not show any different act on defendant's part at any time.) The majority strains this admittedly non-physical resistance to construe it as an ‘active obstruction,’ and, from my reading of the facts, this is a misconstruction. Surely, a non-violent assertion of the Fourth Amendment does not create the peril of a criminal prosecution in the event that a court later determines that the policeman was, in fact, entitled to search. Exposure to Penal Code section 148 is not the price of a non-violent assertion of the Fourth Amendment.

I would reverse the order denying suppression, because the arrest was illegal and the contraband was the fruit of the arrest.

FOOTNOTES

1.  At the preliminary hearing Barras estimated the elapsed time at ten minutes.

1.  ‘Although the occupant may use neither force nor a weapon to resist arrest, Penal Code section 1531 does not require the occupant to open his door to admit the officer; indeed, the act of opening the door might well be construed as a consent to any subsequent search. (See People v. Rosales (1968) 68 Cal.2d 299, 301–303, 66 Cal.Rptr. 1, 437 P.2d 489.) As we observed in Tompkins v. Superior Court (1963) 59 Cal.2d 65, 68, 27 Cal.Rptr. 889, 891, 378 P.2d 113, 115, ‘There are many reasons other than guilt of a felony why an occupant of an apartment may not wish himself or others present exposed to the immediate view of a stranger, even if the stranger is a police officer. 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.’ (Cf. See v. City of Seattle (1967) 387 U.S. 541, 546, 87 S.Ct. 1737, 18 L.Ed.2d 943, [948]; People v. Curtis (1969) 70 Cal.2d 347, 357, 74 Cal.Rptr. 713, 450 P.2d 33.) Refusal to open the door is obviously not a public offense. (Pen.Code, §§ 69, 148.)'

THE COURT:

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