Opinion
For Opinion on Hearing, see 74 Cal.Rptr. 902, 450 P.2d 278 Barry Tarlow, Beverly Hills, for appellants.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Walter E. Wunderlich, Deputy Atty. Gen., for respondent.
FLEMING, Associate Justice.
Toni Antoinette Kanos and Denis Kanos were convicted of possession of heroin and possession of heroin for sale (Health & Saf. Code, §§ 11500, 11500.5). Mrs. Kanos' motion for a new trial was denied and narcotic addiction commitment proceedings were initiated against her. Her husband was found to have four prior felony convictions and sentenced to state prison.
Over a two-to-three month period in 1965 Los Angeles narcotic officers received information from three informants about a Denis Kanos, who was reportedly dealing in large quantities of heroin in the Los Angeles County area. The officers had seen Kanos driving a Thunderbird automobile, but had not learned his address until they obtained his telephone number on the arrest of Marrato, one of Kanos' dealers. Through the telephone company they traced Kanos to his apartment in Inglewood. They also discovered that Kanos was a parole violator, and that a warrant for his arrest had been outstanding for a year. His parole officer told them Kanos might be armed and that Kanos in the past had bought, sold, possessed, and attempted to use guns. The officers had also been told by one of the informants that Kanos had recently sold the informant a stolen automatic revolver. Thereafter, the narcotics officers got in touch with Captain Baucum of the Inglewood police, who told them he knew Kanos, knew where Kanos lived, and knew that Kanos might be armed.
On 15 July 1965, the parole officer, the Los Angeles police, and the Inglewood police, went to the building where Kanos reportedly lived. The Thunderbird they had previously seen Kanos driving was parked outside the building. From a photograph the apartment manager identified Kanos as the tenant in Apartment 1. The officers went to Kanos' apartment and, after hearing voices inside, kicked in the door, and entered with drawn guns. On the living-room table they found four containers of what was later determined to be heroin, and elsewhere in the apartment they uncovered other containers of narcotics. Both Kanos's were arrested.
1. The principal question on appeal is whether the officers were justified in forcing an entry into the apartment without having first demanded admittance and explained their purpose in accordance with Penal Code section 844. Specifically, is this a case where exigent circumstances justify the failure of the officers to comply with the section?
In People v. Gastelo, 67 A.C. 596, 63 Cal.Rptr. 10, 432 P.2d 706, the court reaffirmed the general application of section 844 to all arrests, noting, however, that compliance may be excused 'if the facts known to the officer before his entry were sufficient to support his good faith belief that compliance would have increased his peril or frustrated the arrest.' (67 A.C. at 598, 63 Cal.Rptr. at 11, 432 P.2d at 707.) An officer's determination of increased peril will be honored if the facts known to him are consistent with a good faith belief in that peril. (People v. Maddox, 46 Cal.2d 301, 306-307, 294 P.2d 6.) Here, the officers had heard from three different sources--an informant, the parole officer, and Captain Baucum--that Kanos had an affinity for guns and might be armed. They had information that Kanos was a dealer in hard narcotics and a supplier of heroin to peddlers. They also knew he was a parole violator for whom a warrant of People v. Smith,
People v. Hammond, People v. Gilbert,2. Appellants contend their statements to the police after arrest were involuntary and were obtained in violation of their constitutional rights, contentions which they now raise for the first time. The claim of involuntariness is based on the supposition that Denis Kanos was under the influence of heroin when arrested and Toni Kanos was suffering withdrawal pains at the police station, and therefore the statements they gave the police at those times were products of overborne wills. Nothing in the record suggests that the police used inducements to elicit these statements, or that the questioning of appellants was unduly prolonged. Both appellants took the stand, and neither testified to his or her physical condition at the time the statements were made. In the absence of direct testimony to support appellants' claim of weakened physical condition and consequent impaired volition, we decline to speculate that their statements were involuntary. (Cf. People v. Massie, 66 Cal.2d 899, 906, 59 Cal.Rptr. 733, 428 P.2d 869.)
Appellants' argument that they were insufficiently advised of their constitutional rights not having been raised in the trial court, is no longer timely.
3. Appellants' next contention runs somewhat as follows: the police discovered appellants' whereabouts only from a slip of paper found on Marrato, one of Kanos' dealers; when the police arrested Marrato they made an insufficient demand for entry under Penal Code section 844; therefore, Marrato's arrest was illegal; therefore, the discovery of Kanos's telephone number was the product of an illegal search; therefore, the arrest of the Kanos's was illegal; therefore, the evidence obtained in the contemporaneous search of the Kanos apartment was tainted fruit of a poisonous tree--which should have been suppressed. Carried to its logical conclusion appellants' argument would provide them with immunity from lawful arrest for an indefinite period so long as they remained at their Inglewood address. A similar immunity from lawful arrest would accompany every other fugitive from justice, knowledge of whose whereabouts had been irregularly obtained by the authorities.
We do not find this argument persuasive, because in our view the Kanos's were only entitled to litigate the validity of Marrato's arrest if evidence obtained as a result of that arrest had been introduced against them, or if the police had relied on information obtained from Marrato's arrest as reasonable cause for their arrest. Neither condition was met--for evidence obtained from Marrato was not introduced against appellants; nor was information obtained from Marrato relied upon to establish reasonable cause for the arrest, since Denis Kanos was arrested under the authority of an outstanding warrant for parole violation. (Cf. People v. Reeves, 61 Cal.2d 268, 274-275, 38 Cal.Rptr. 1, 391 P.2d 393.) The sole connection between the two arrests was that Marrato's arrest unearthed a clue which led to the discovery of Kanos' current whereabouts. In turn this clue was developed by the telephone company, confirmed by Captain Baucum of the Inglewood police, and verified by the manager of Kanos' apartment. The fruit-of-the-poisonous-tree doctrine (Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307) applies only to illegally-obtained evidence used in court (Wong Sun v. United States, 371 U.S. 471, 491, 492, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Sesslin, 68 A.C. 431, 440, 67 Cal.Rptr. 409, 439 P.2d 321), and when such evidence is not used the doctrine does not apply. (Hoffa v. United States, 385 U.S. 293, 308-309, 87 S.Ct. 408, 17 L.Ed.2d 374. See People v. Varnum, 66 Cal.2d 808, 812-813, 59 Cal.Rptr. 108, 427 P.2d 772.) 4. Denis Kanos was sentenced to state prison for the term prescribed by law. Since he was found to have three prior narcotic felony convictions, that term was a minimum of 15 years. Health & Safety Code section 11500.5 prescribes a minimum of 5 years for possession for sale of a narcotic other than marijuana; a minimum of 10 years if a prior narcotic felony conviction is proved; and a minimum of 15 years if two or more prior narcotic felony convictions are proved. Kanos contends he was improperly sentenced because in effect he had only one prior felony narcotic conviction. Kanos arrives at his conclusion this way: he was convicted of possession of narcotics, two counts, in October 1957. After 15 days in prison, he was released pending an appeal. He was subsequently arrested on another charge of possession of narcotics, convicted on the latter charge in August 1958, and then sentenced to serve concurrent terms for the three offenses. He argues that his sentence in the present case should be based on a finding of only one prior narcotic felony conviction, and he relies on our suggestion in People v. Diaz, 245 Cal.App.2d 74, 53 Cal.Rptr. 666, that the sentencing provisions of section 11500 of the Health & Safety Code have the same rationale as the habitual criminal statute. (245 Cal.App.2d at 77, n. 1, 53 Cal.Rptr. 666.) Kanos argues that since he had only one chance to rehabilitate himself in prison, in effect he has suffered only one prior narcotic felony conviction, that to interpret section 11500.5 any other way would frustrate the rehabilitation aim of the habitual criminal statute. (People v. Reed, 249 Cal.App.2d 468, 472, 57 Cal.Rptr. 407.) This argument ignores the difference between the habitual criminal statute, Penal Code, section 644, which refers to the service of separate prison terms for prior felonies, and Health & Safety Code, section 11500.5, which refers to prior felony convictions. The sentence imposed on Kanos was proper if he had two prior narcotic felony convictions. The record shows two convictions for violation of Health & Safety Code, section 11500, on 14 October 1957, and a conviction for a violation of Health & Safety Code, section 11500, on 1 August 1958. Unquestionably, Kanos had been 'previously two or more times convicted' of felony narcotic offenses, and the sentence which carried a minimum of 15 years was proper.
The judgment and order are affirmed.
HERNDON, J., concurs.