People v. Kanos

BURKE, J.

I dissent. The entry by the police officers in noncompliance with Penal Code section 844 was excused in the reasonable belief that appellant was armed, and that compliance would appreciably enhance their peril. (People v. Maddox, 46 Cal.2d 301, 305-307 [294 P.2d 6]; see also Ker v. California, 374 U.S. 23 [10 L.Ed.2d 726, 83 S.Ct. 1623].) Under Maddox, supra, the test is whether there is reasonable cause to make the arrest and search and the facts known to the officers before their entry are not inconsistent with a good faith belief on the part of the officers that compliance with section 844 is excused.

Applying that test here the officers knew: (1) Appellant Denis Kanos was wanted for violation of parole (this was verified by his parole officer under whose direction he was apprehended). To police officers this would reasonably mean that appellant had much more at stake than the ordinary first offender; (2) that he was dealing in large quantities of heroin (this information was from several sources, including a reliable informant). Again, to police officers they knew they were dealing with a professional, not the usual “pusher” peddling *388an occasional bindle to support his habit; (3) that he had dealt in weapons and was armed; that on a prior occasion he had bought, sold, possessed, and attempted to use guns. The latter information came from official files of the parole officer; (4) that he had recently sold an informant a stolen revolver; (5) that in “a very recent length of time, a matter of days,” he had been known “to be in possession of several firearms” and that he probably would be armed.

The majority opinion attempts to reevaluate this information and depreciates its significance because a portion of it was one year old and another portion because it “was seemingly more than eight years old. ’ ’ Surely, we do not require of police officers that they engage in such minute analysis in deciding whether they are warranted in minimizing their exposure to gunfire. Let us ask ourselves whether if we had .been standing in front of the apartment door knowing what these officers knew our evaluation of the danger would be lessened because the felon whom we had good reason to believe was on the other side of the door speaking with others had last attempted to use a gun one year or ten years earlier. What would reasonably concern us, or a police officer, would be the knowledge of the man’s previously demonstrated propensity for possessing and using guns.

The trial judge heard the testimony of the officers and admitted the evidence on the ground that appellant Denis Kanos was a parole violator and therefore section 844 did not apply. Since this court’s subsequent ruling in People v. Rosales, 68 Cal.2d 299 [66 Cal.Rptr. 1, 437 P.2d 489], this was error. However, as long as the evidence was admissible, the trial judge’s statement of an erroneous reason for its admission is of no consequence unless it resulted in a miscarriage of •justice. (Cal. Const., art. VI, §13; People v. Ray, 252 Cal.App.2d 932, 955 [61 Cal.Rptr. 1]; People v. Evans, 249 Cal. App.2d 254, 257 [57 Cal.Rptr. 276].) There was no miscarriage of justice in this case.

I would affirm the judgment.

McComb, J., concurred.