The trial court found defendant guilty of possession of marijuana (§11530, Health & Saf. Code) and subsequently denied his motion for a new trial. Defendant appeals from the order denying the motion (2d Crim. 14563). His application for probation was denied and defendant was sentenced to the state prison for the term prescribed by law; he appeals from the judgment of conviction (2d Crim. 13621). Thereafter the two appeals were consolidated. The appeal from the order (2d Crim. 14563) is dismissed. (§1237, Pen. Code; People v. Ing, 65 Cal.2d 603, 614 [55 Cal.Rptr. 902, 422 P.2d 590].)
Using the name Ernest Ryan, defendant and another man, Henry Ryan, representing themselves as brothers rented a bachelor-type apartment (No. 227) from the manager Henry Smith, on June 25, 1966. On July 7, 1966, Smith heard a cat crying in defendant’s apartment; no one was home so he opened the door with a pass key, found a white kitten and fed it. As he started out of the apartment he saw on a shelf in an open closet a shoe box containing material he believed to be marijuana; he had seen marijuana on numerous occasions during his 20 years in the Air Force. Since defendant moved in, Smith had noticed numerous persons, all men—as many as five in one day—go and come from the apartment. Smith took a pinch of the material and put it in a Kleenex; he also took a package of cigarette papers in the front of the box. He notified police and within a day or two Sergeant Mullen, Narcotics, called him; he told the officer of his observations and Sergeant Mullen told him to keep the sample until he could come out and identify it.
On July 10, 1966, defendant and the other man moved into a one bedroom apartment (No. 221). Henry Ryan told Smith he had ordered a telephone but was going to New York and if his brother was not in he should let the telephone man in the apartment. On July 13, 1966, the man came to install the phone. Smith went to the door of apartment 221 and knocked; receiving no answer, he walked in, saw no one, looked in the bedroom and saw defendant asleep. He called to him but defendant did not awaken. On a dresser in the bedroom Smith saw a cellophane wrapped package of material that appeared to him to be the same he had seen in defendant’s other apartment (No. 227); he believed it to be marijuana. Smith left the
In an argument for which he cites no authority and in which he fails to demonstrate in what manner there is a lack of evidence to support the trial court’s finding of probable cause, appellant contends that the officers had no reasonable cause to arrest him. Entirely irrelevant to all issues raised in his brief is appellant’s main complaint that he was arrested but his roommate was not.
In the light of the information given to Sergeant Mullen by Mr. Smith in the two telephone calls to him, it was reasonable for the officers to go to the apartment house to investigate the manager’s complaint and interview the occupant of apartment 221. (People v. Michael, 45 Cal.2d 751, 754 [290 P.2d 852]; People v. Jolke, 242 Cal.App.2d 132, 147 [51 Cal.Rptr. 171].) On arrival Sergeant Mullen received further information from Smith, then identified the sample Smith took from defendant’s apartment as marijuana.
Because no exact formula for determining probable cause exists and each case must be determined on its own
Sergeant Mullen, his partner, Smith and the telephone man went to defendant’s apartment; Smith knocked on the door and in a “rather loud voice” said that the telephone man was there. Receiving no response, Smith finally opened
Inasmuch as Sergeant Mullen did not rest his right to enter defendant’s apartment on the implied consent of the manager who opened the door with his pass key, but on his own belief that defendant and the contraband were in the apartment, defendant had committed and was committing a felony, and if defendant knew the presence of the officers the evidence would be destroyed; and entered for the purpose of arresting defendant, Stoner v. California, 376 U.S. 483 [11 L.Ed.2d 856, 84 S.Ct. 889] does not control. In the latter, entry was made in the absence of Stoner for the purpose of searching his hotel room; he was arrested two days later in another state; and the police entered Stoner’s room relying solely upon the consent of the hotel clerk who opened the door with his pass key. While the entry was not forced, it is clear that it was made not only without defendant’s consent but without notice of Sergeant Mullen’s authority and purpose. The evidence herein presents a situation similar to forced entry without compliance with the notice requirements of section 844, Penal Code. In the recent case of People v. Gastelo, 67 Cal.2d 586, the Supreme Court said at page 587 [63 Cal.Rptr. 10, 432 P.2d 706] : “In Maddox [People v. Maddox, 46 Cal.2d 301 [294 P.2d 6] ], we held that compliance with the substantially identical notice requirements of Penal Code section 844 for making arrests was 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. Later eases have included the prevention of destruction of evidence as an additional ground for noncom
■ In People v. Maddox, 46 Cal.2d 301 [294 P.2d 6], the officers knocked on the door, a male voice said wait a minute, they heard retreating footsteps and then kicked the door open and rushed into the kitchen. The court concluded that when there is reasonable cause to make an arrest and search and the facts known to him before his entry are not consistent with the good faith belief on the part of the officer that compliance with section 844 is excused, his failure to comply does not justify the exclusion of the evidence he obtains. (Pp. 306-307.) “It must be borne in mind that the primary purpose of the constitutional guarantees is to prevent unreasonable invasions of the security of the people in their persons, houses, papers, and effects, and when an officer has reasonable cause to enter a dwelling to make an arrest and as an incident to that arrest is authorized to make a reasonable search, his entry and his search are not unreasonable. Suspects have no constitutional right to destroy or dispose of evidence, and no basic constitutional guarantees are violated because an officer succeeds in getting to a place where he is entitled to be more quickly than he would, had he complied with section 844.” (P. 306.) In People v. Carrillo, 64 Cal.2d 387 [50 Cal.Rptr. 185, 412 P.2d 377], the entry of the officers followed a knock and observation of suspicious movements; the court upheld it and found that they entered the premises in the reasonable belief that defendant possessed narcotics and that only such an entry would prevent their destruction by defendant (pp. 391-392). (People v. Gastelo, 67 Cal.2d 586, 588 [63 Cal.Rptr. 10, 432 P.2d 706]; see also People v. Smith, 63 Cal.2d 779, 797 [48 Cal.Rptr. 382, 409 P.2d 222]; People v. Gilbert, 63 Cal.2d 690, 707 [47 Cal.Rptr. 909, 408 P.2d 365]; and People v. Hammond, 54 Cal.2d 846, 854 [9 Cal.Rptr. 233, 357 P.2d 289].)
People v. Gastelo, 67 Cal.2d 586 [63 Cal.Rptr. 10, 432 P.2d 706], involved section 1531, Penal Code, with substantially identical notice requirements of section 844, Penal Code. Four officers went to defendant’s apartment to execute a search warrant and made a forced unannounced entry; they found defendant asleep. Absent was any evidence that before
“Since there was nothing in the present case to justify the officers’ failure to comply with section 1531, except an asserted general propensity of narcotics violators to destroy evidence when confronted by police officers, the officers’ entry was unlawful.” (P. 589.)
Clearly, whether the officers were excused from announcing their authority and purpose before entry is a question of fact. While in Gastelo there was no evidence that the officers in good faith believed that compliance with the notice requirements of the section was excused, in the instant ease the record is replete with evidence of Sergeant Mullen’s good faith belief that an announced entry would have resulted in a destruction of the contraband. He was cross-examined at length and testified that he entered unannounced with the manager who used his pass key because he had reasonable cause to and did believe that defendant was in the apartment, that near defendant and readily available to him was a quantity of marijuana, that defendant had awakened after Smith knocked and in a “rather loud voice” announced the presence of the telephone man, and remained silent, and that if any more time elapsed and defendant knew the police were present he “would dispose of the bag of marijuana”; that in his opinion there was an emergency “to wit, to preserve what evidence was in there”; and that because of this emergency he entered defendant’s apartment with Smith. In finding that Sergeant Mullen had the right to enter defendant’s apartment under the circumstances, the trial judge gave credence to the officer’s testimony that he had a good faith belief that an announced entry would have resulted in a destruction of the contraband, and believed that the facts known to Sergeant
Once lawfully inside the premises the officers observed in plain sight on a coffee table near the divan on which defendant was sleeping a partially burned marijuana cigarette and on top of the dresser a plastic package of marijuana. “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. California, 374 U.S. 23, 42-43 [10 L.Ed.2d 726, 743-744, 83 S.Ct. 1632] (1963); United States v. Lee, 274 U.S. 559 [71 L.Ed. 1202, 47 S.Ct. 746] (1927); Hester v. United States, 265 U.S. 57 [68 L.Ed. 898, 44 S.Ct. 445] (1924).” (Harris v. United States 390 U.S. 234, 236 [19 L.Ed.2d 1067, 1069, 88 S.Ct. 992]; People v. Jolke, 242 Cal.App.2d 132, 148 [51 Cal.Rptr. 171], and cases cited therein.) While a search of the apartment produced other contraband, it was incident to a lawful arrest and valid (People v. Ross, 67 Cal.2d 64, 69 [60 Cal.Rptr. 254, 429 P.2d 606]; People v. Cruz, 61 Cal.2d 861, 866 [40 Cal.Rptr. 841, 395 P.2d 889]), even though it preceded the arrest. As long as the search is supported by evidence sufficient to constitute probable cause apart from that discovered by the search, a search which precedes an arrest is valid. (People v. Simon, 45 Cal.2d 645, 648 [290 P.2d 531].)
Appellant claims that all he did was share a room in which narcotics were found with another person, and there is nothing to connect him with the contraband since it could have belonged to his roommate. “Unlawful possession of narcotics is established by proof (1) that the accused exercised dominion and control over the contraband, (2) that he had knowledge of its presence, and (3) that the accused had knowledge that the material was a narcotic. ((People v. Redrick, 55 Cal.2d 282, 285 [10 Cal.Rptr. 823, 359 P.2d 255].) The foregoing elements may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (People v. Jackson, 198 Cal.App.2d 698, 704 [18 Cal.Rptr. 214].)” (People v. Groom, 60 Cal.2d 694, 696-697 [36 Cal.Rptr. 327, 388 P.2d 359]; People v. Gory, 28 Cal.2d 450, 456 [170 P.2d 433]; People v. Aguilar, 223 Cal.App.2d 119, 123 [35 Cal.Rptr. 516].)
■ The following circumstantial evidence supports the inference that defendant had knowledge of the presence of the marijuana in his apartment and had possession of the same.
The judgment is affirmed.
Wood, P. J., and Fourt, J., concurred.