People v. Schad

Opinion

Defendant appeals from the judgment (order granting probation)^[1] following pleas of guilty to one count of possession of seconal in violation of Health and Safety Code section 11910 and a count of possession of cocaine for sale in violation of Health and Safety Code section 11500.5,^[2] contending that evidence against him was obtained by (a) an illegal entry and consequently illegal search and seizure of narcotics in his home and (b) an illegal entry, search and seizure of narcotics in a hospital emergency treatment room.

We summarize the evidence from the transcript of the preliminary examination, upon the basis of which the trial court denied defendant’s motions to set aside the information and to suppress evidence.^[3]

The Cocaine Offense

On July 28,1970, at approximately 7 p.m., Agents Peters and Schalansky of the State Narcotic Bureau went to the Sacramento Medical Center upon receiving word from the medicál staff at the center that defendant was en route for treatment after telephoning that he had swallowed four prophylactics containing cocaine.

Upon arrival the agents obtained permission from the physician in charge to wait outside the emergency room; they were informed by the doctor that in treating defendant he would be induced to vomit. The doctor stated that if the prophylactics were recovered they would be turned over to the officers.

Shortly before 8 p.m., the officers saw defendant enter the emergency room, accompanied by a nurse. The agents remained in the hallway outside the room. A short time later, the officers heard the nurse scream, “he’s trying to flush whatever he . . . vomited.” The officers immediately entered the emergency room and the nurse handed them a prophylactic which contained a white powdery substance. The officers observed defendant vomit a second prophylactic which contained a substance similar to that contained in the first. They then placed him under arrest. The two prophylactics contained 4.3 grams of cocaine.

The House Entry

The validity of the search warrant is not questioned. It is defendant’s contention that there was an unlawful entry by the officers which rendered illegal the subsequent search and seizure of the contraband. The thrust of his argument is that the officers complied with the form but not the substance of Penal Code section 844; that adequate notice of their authority was not given because their appearance contradicted their words; and that there was no indication of suspicious activity inside the house which would justify the forcible entry.

Analysis of the requirements of section 844 and—more appropriately here—its companion statute, Penal Code section 1531,^[5] and the interpre

Section 1531 is concerned with forcible entry by an officer in possession of a search warrant, while section 844 relates to forcible entry to effect an arrest. Although the sections are worded somewhat differently, the courts have interpreted them to encompass the same basic rules with which an officer must comply before making a forcible entry; (1) the officer must knock or employ some other means reasonably calculated to notify the occupant of his presence; (2) he must make some statement of his authority—normally by identifying himself as a police officer; and (3) he must state or explain his purpose for demanding admittance. (Duke v. Superior Court (1969) 1 Cal.3d 314 , 319 [ 82 Cal.Rptr. 348 , 461 P.2d 628 ]; People v. Garnett (1970) 6 Cal.App.3d 280 , 290 [ 85 Cal.Rptr. 769 ].) In evaluating an officer’s compliance with those principles the rule is, of course, that the courts look only to the facts and circumstances with which the officer is faced at the time he makes his decision and acts upon it. (See People v. Ingle (1960) 53 Cal.2d 407 , 414 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ]; People v. Murphy (1959) 173 Cal.App.2d 367 , 377 [ 343 P. 2d 273 ].)

Although we are reluctant—because of the likelihood of violence and possible injury both to officers and suspects under circumstances such as those here present^[6] —to approve the service of a search warrant by officers so attired and adorned, no reported case enlarges the requirements of sections 1531 or 844 by insistence that an officer serving a search warrant be in uniform or business suit, or that such officers wear their hair short or long or be with or without other hirsute adornment, The courts are generally aware that narcotics agents and other officers engaged in narcotics work—particularly at the investigative phase—often assume an unkempt or “hippie-type” appearance to assist them in their duties, and we cannot say, on the record before us, that the investigative phase of the officers’ duties ended with procurement of the search warrant. Since the officers had a search warrant, the burden is not upon the prosecution to show proper justification but upon the defendant to show an unlawful entry and search. (Cf. Horack v. Superior Court (1970) 3 Cal.3d 720 , 725 [ 91 Cal.Rptr. 569 , 478 P.2d 1 ].) That burden has not been met.^[7]

While we might question, by hindsight, whether the officers’ costuming was proper police administration in the present case, we have concluded that the subterfuge.—if that it was—did not invalidate the officers’ entry. In so concluding, we are mindful, too, that the officers could reasonably have been guided in their own actions by their assessment of possible peril to themselves,^[8] the possible destruction of evidence,^[9] and frustration of the search and possible arrest of the suspects. (See People v. Carrillo (1966) 64 Cal.2d 387 , 391 [ 50 Cal.Rptr. 185 , 412 P.2d 377 ]; People v. Peterson (1970) 9 Cal.App.3d 627 , 631 [ 88 Cal.Rptr. 597 ].)

The Hospital Room Entry

We have summarized, under the heading, “The Cocaine Offense” (supra), the facts surrounding the officers’ entry of the hospital room and seizure of the cocaine. We reject defendant’s contention that entry of the hospital room in which he was being treated was unlawful and that the evidence seized as a result of the entry should have been excluded.