Police must have a particular reason to enter in a specific manner rather than relying on a general propensity for certain types of criminals to destroy evidence.
After obtaining a search warrant for an apartment, police officers arrived in the early morning and forced entry through both the front and rear doors without knocking or announcing their purpose. The defendant argued that the heroin found during the search was inadmissible because the officers failed to comply with statutory notice requirements. The court considers whether the nature of narcotics cases justifies a blanket exception to the requirement of announcing authority and purpose before forced entry. Applying the principle that police must have a particular reason to enter in a specific manner, the court holds that a general propensity for narcotics violators to destroy evidence does not excuse noncompliance with the statute. Because the officers lacked specific facts to justify unannounced entry, the entry was unlawful.
67 Cal. 2d at 588 Limiting forcible entry based on type of evidence30 citing cases“narcotics violators normally are on the alert to destroy the easily disposable evidence quickly at the first sign of an officer's presence.”
- People v. Nassetta, 3 Cal. App. 5th 699 (Cal. Ct. App. 2016).published(People v. Gastelo (1967) 67 Cal.2d 586, 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ], italics added.) Relying on Gástelo, the Watson court held a nighttime search could not be justified “based solely on the nature of the contraband to be seized…
- People v. Murphy, 123 P.3d 155 (Cal. 2005).published (Rosales, supra, 68 Cal.2d at p. 305 ; People v. Gastelo (1967) 67 Cal.2d 586, 587-589 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ].) In other words, the mere fact that the officers are aware of contemporaneous drug activity on the premises does not…
- People v. Hoag, 83 Cal. App. 4th 1198 (Cal. Ct. App. 2000).published (Duke v. Superior Court (1969) 1 Cal.3d 314, 325 [ 82 Cal.Rptr. 348 , 461 P.2d 628 ]; Greven v. Superior Court (1969) 71 Cal.2d 287, 290 [ 78 Cal.Rptr. 504 , 455 P.2d 432 ]; People v. Gastelo (1967) 67 Cal.2d 586, 588-589 [ 63 Cal.Rptr. 10…
- People v. Gonzalez, 211 Cal. App. 3d 1043 (Cal. Ct. App. 1989).published(See People v. Gastelo (1967) 67 Cal.2d 586, 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ]; see generally 2 LaFave, Search and Seizure, A Treatise on the Fourth Amendment (2d ed. 1987) § 4.8(d), (e), at pp. 280-286.) Similarly, if events indicate…
- Langford v. Superior Court, 729 P.2d 822 (Cal. 1987).published (See People v. Dumas (1973) 9 Cal.3d 871, 878-879 [ 109 Cal.Rptr. 304 , 512 P.2d 1208 ]; People v. Gastelo (1967) 67 Cal.2d 586, 588-589 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ]; People v. Vollheim (1978) 87 Cal.App.3d 538, 543 [ 150 Cal.Rptr. 8…
- Tuttle v. Superior Court, 120 Cal. App. 3d 320 (Cal. Ct. App. 1981).published Code, § 844); People v. Gastelo (1967) 67 Cal.2d 586, 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ] (Pen.
- People v. Superior Court (Reilly), 53 Cal. App. 3d 40 (Cal. Ct. App. 1975).publishedCf. People v. Bennetto (1974) 10 Cal.3d 695, 700-702 [ 111 Cal.Rptr. 699 , 517 P.2d 1163 ]; People v. Dumas (1973) 9 Cal.3d 871, 877-879 [ 109 Cal.Rptr. 304 , 512 P.2d 1208 ]; Duke v. Superior Court (1969) 1 Cal.3d 314, 318-324 [ 82 Cal.Rp…
- People v. Bruce, 49 Cal. App. 3d 580 (Cal. Ct. App. 1975).published(See People v. DeSantiago, 71 Cal.2d 18 , 28-29 [ 76 Cal.Rptr. 809 , 453 P.2d 353 ]; People v. Gastelo, 67 Cal.2d 586, 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ].) There was no such specific indication in this case. 14 Finally, the Attorney Ge…
- People v. Buckner, 35 Cal. App. 3d 307 (Cal. Ct. App. 1973).published(See People v. Gastelo (1967) 67 Cal.2d 586, 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ].) The negative inference flowing from these provisions serves to bar most unannounced entries and to render inadmissible evidence seized pursuant thereto.
- Parsley v. Superior Court, 513 P.2d 611 (Cal. 1973).published (See People v. Gastelo (1967) 67 Cal.2d 586, 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ].) The negative inference flowing from these provisions serves to bar most unannounced entries and to render inadmissible evidence seized pursuant thereto.
Show 17 more citing cases
- People v. Lee, 20 Cal. App. 3d 982 (Cal. Ct. App. 1971).published(People v. Gastelo (1967) 67 Cal.2d 586, 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ] and cases cited.)” (People v. Rosales, 68 Cal.2d 299, 305 [ 66 Cal.Rptr. 1 , 437 P. 2d 489 ].) Officer Nettles’ belief was not based on a general assumption th…
- People v. King, 487 P.2d 1032 (Cal. 1971).published This court as long ago as 1967 made it clear that forcible entry to execute a warrant cannot be justified on the blanket basis of the type of crime or evidence involved, such as narcotics cases or other cases involving easily disposable, e…
- People v. Mesaris, 14 Cal. App. 3d 71 (Cal. Ct. App. 1970).published The repairman, however, had not given the police any specific basis for his fears on this score and without such a basis noncompliance on this ground was not constitutionally warranted. [5] (See People v. Gastelo, 67 Cal.2d 586, 588-589 […
- People v. Stewart, 11 Cal. App. 3d 242 (Cal. Ct. App. 1970).published(Duke v. Superior Court (1970) 1 Cal.3d 314, 323 [ 82 Cal.Rptr. 348 , 461 P.2d 628 ]; People v. Rosales (1968) 68 Cal.2d 299, 305 [ 66 Cal.Rptr. 1 , 437 P.2d 489 ]; People v. Gastelo (1967) 67 Cal.2d 586, 588-589 [ 63 Cal.Rptr. 10 , 432 P.…
- Greven v. Superior Court, 455 P.2d 432 (Cal. 1969).published (People v. Rosales (1968) 68 Cal.2d 299, 304-305 [ 66 Cal.Rptr. 1 , 437 P.2d 487 ]; People v. Gastelo (1967) 67 Cal.2d 586, 588-589 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ]; see Miller v. United States (1958) 357 U.S. 301, 313-314 [ 2 L.Ed.2d 13…
- People v. Newell, 272 Cal. App. 2d 638 (Cal. Ct. App. 1969).publishedThe situation here was not that presented in People v. Gastelo, 67 Cal.2d 586, 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ], where the police in executing a search warrant made a forcible entry without complying with Penal Code section 844 and m…
- People v. Toulson, 272 Cal. App. 2d 181 (Cal. Ct. App. 1969).published (See Witkin, Cal. Evidence (2d ed. 1966) pp. 61-62 and 63-64, and cases cited.) It serves as an indicium, however, of the lack of due care of the prosecutors and judges below for the interests of either the People or the defendant. [5] The…
- People v. Beamon, 268 Cal. App. 2d 61 (Cal. Ct. App. 1968).published (See People v. Gastelo, 67 Cal.2d 586, 588-589 [ 63 Cal. Rptr. 10 , 432 P.2d 706 ].) Moreover, if analogy to the law of burglary is required, we note that in California no breaking or forceable entry is required in proof of the commission…
- People v. Perez, 267 Cal. App. 2d 275 (Cal. Ct. App. 1968).publishedAppellant relies principally on People v. Gastelo, 67 Cal.2d 586, 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ], wherein the defendant was also convicted of possession of heroin; there Los Angeles police officers had obtained a warrant for search…
- People v. Yeoman, 261 Cal. App. 2d 338 (Cal. Ct. App. 1968).published(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 Peo…
- People v. Camerano, 260 Cal. App. 2d 861 (Cal. Ct. App. 1968).publishedJust as the police must have sufficiently particular reason to enter at all, so must they have some particular reason to enter in the manner chosen. ’ ’ (People v. Gastelo, 67 Cal.2d 586, 588-589 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ].) Police…
- People v. Welch, 260 Cal. App. 2d 221 (Cal. Ct. App. 1968).published(Pe ople v. Gastelo (1967) 67 Cal.2d 586, 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ] and cases cited.) ” It does not appear that the officers were acting in the reasonable belief that compliance with section 844 would trigger an escape attempt…
- People v. De Leon, 260 Cal. App. 2d 143 (Cal. Ct. App. 1968).published Absent in the record is any testimony concerning any facts known to Officer Pesler before his entry sufficient to support a good faith belief on his part that compliance with the notice requirements of section 1531 would have increased his…
- People v. Rosales, 437 P.2d 489 (Cal. 1968).published (People v. Gastelo (1967) 67 Cal.2d 586, 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ] and cases cited.) [1d] The Attorney General contends that the officers were excused from compliance with section 844 to prevent defendant's escape.
- People v. Flores, 440 P.2d 233 (Cal. 1968).published
- People v. Clay, 273 Cal. App. 2d 279 (Cal. Ct. App. 1969).published
- People v. Morales, 259 Cal. App. 2d 290 (Cal. Ct. App. 1968).published
67 Cal. 2d at 587 Analyzing warrantless entry and compliance with search warrant requirements12 citing cases“the officer may break open any outer or inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.”
- People v. Murphy, 123 P.3d 155 (Cal. 2005).published (Rosales, supra, 68 Cal.2d at p. 305 ; People v. Gastelo (1967) 67 Cal.2d 586, 587-589 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ].) In other words, the mere fact that the officers are aware of contemporaneous drug activity on the premises does not…
- People v. Baldwin, 62 Cal. App. 3d 727 (Cal. Ct. App. 1976).publishedThe test for compliance with section 844 is the view of the situation from the perspective of the officer at the time of the entry (People v. Gastelo, 67 Cal.2d 586, 587 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ]; People v. Thornton, 8 Cal.App.3d…
- People v. Constancio, 42 Cal. App. 3d 533 (Cal. Ct. App. 1974).published(People v. Tribble (1971) 4 Cal.3d 826, 833 [ 94 Cal.Rptr. 613 , 484 P.2d 589 ]; People v. Gastelo (1967) 67 Cal.2d 586, 587-588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ].) 9 Defendants’ written motion to suppress for failure of the officers to c…
- Brown v. Superior Court, 34 Cal. App. 3d 539 (Cal. Ct. App. 1973).publishedIt is consistently held that failure to comply with sections 1531 and 844 does not compel application of the exclusionary rule “ ‘if the specific facts known to the officer before his entry are sufficient to support his good faith belief t…
- Parsley v. Superior Court, 513 P.2d 611 (Cal. 1973).published (See People v. Gastelo (1967) 67 Cal.2d 586, 588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ].) The negative inference flowing from these provisions serves to bar most unannounced entries and to render inadmissible evidence seized pursuant thereto.
- People v. Dumas, 512 P.2d 1208 (Cal. 1973).published Section 1531 provides: "The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if after notice of his authority and purpose, he is refused admittance."…
- People v. Tribble, 484 P.2d 589 (Cal. 1971).published(People v. Gastelo (1967) 67 Cal.2d 586, 587-588 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ]; People v. De Santiago (1969) 71 Cal.2d 18, 23-29 [ 76 Cal.Rptr. 809 , 453 P.2d 353 ].) In the present case, the violent character of the crimes involved,…
- Greven v. Superior Court, 455 P.2d 432 (Cal. 1969).published (People v. Rosales (1968) 68 Cal.2d 299, 304-305 [ 66 Cal.Rptr. 1 , 437 P.2d 487 ]; People v. Gastelo (1967) 67 Cal.2d 586, 588-589 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ]; see Miller v. United States (1958) 357 U.S. 301, 313-314 [ 2 L.Ed.2d 13…
- People v. Martinez, 264 Cal. App. 2d 679 (Cal. Ct. App. 1968).publishedSuch a belief, however, must be based on the facts of the particular case.” (People v. Rosales, supra, 68 Cal.2d 299, 305 [ 66 Cal.Rptr. 1 , 437 P.2d 489 ]; People v. Gastelo, 67 Cal.2d 586, 587 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ]; People v…
- People v. Hamilton, 257 Cal. App. 2d 296 (Cal. Ct. App. 1967).publishedLater cases have included the prevention of destruction of evidence as an additional ground for noncompliance. ...” {People v. Gastelo, 67 Cal.2d 586, 587 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ].) Gástelo states: “Neither this court nor the Uni…
Show 2 more citing cases
- Commonwealth v. Scalise, 439 N.E.2d 818 (Mass. 1982).published
- People v. Cox, 263 Cal. App. 2d 176 (Cal. Ct. App. 1968).published
432 P.2d at 708 Justifying unannounced forcible entry under the fourth amendment9 citing casesunder the fourth amendment, a specific showing must always be made to justify unannounced forcible entry
- Price v. State, 93 S.W.3d 358 (Tex. App.—Houston [14th Dist.] 2002).published See, e.g., United States v. Lalor, 996 F.2d 1578, 1584 (4th Cir.1993); People v. Rosales, 68 Cal.2d 299 , 66 Cal.Rptr. 1 , 437 P.2d 489, 493 (1968) (providing exceptions for danger to the officer, destruction of evidence, or frustration of…
- Wilson v. State, 673 So. 2d 505 (Fla. 1st DCA 1996).publishedUnannounced forcible entry is in itself a serious disturbance of that security...." People v. Gastelo, 67 Cal.2d 586 , 63 Cal.Rptr. 10, 12 , 432 P.2d 706, 708 (1967).
- State v. Stevens, 511 N.W.2d 591 (Wis. 1994).published (under the fourth amendment, a specific showing must always be made to justify unannounced forcible entry)
- United States v. Phillip Moore, 956 F.2d 843 (8th Cir. 1992).published Compare Reynolds v. State, 46 Ala.App. 77, 238 So.2d 557, 559-60 (Ala.Cr.App.) cert. denied, 286 Ala. 740 , 238 So.2d 560 (1970); State v. Mendoza, 104 Ariz. 395 , 454 P.2d 140, 144-45 (1969); People v. Gastelo, 67 Cal.2d 586 , 63 Cal.Rptr…
- State v. Cleveland, 348 N.W.2d 512 (Wis. 1984).published State v. Bates, 120 Ariz. 561 , 587 P.2d 747, 749 (1978), and State v. Jeter, 30 Wash. App. 360 , 634 P.2d 312, 314 (1981), may be added to cases cited in accord. [15] 67 Cal. 2d 586, 588-89 , 63 Cal. Rptr. 10, 12 , 432 P.2d 706, 708 (1967…
- State v. Cleveland, 338 N.W.2d 500 (Wis. Ct. App. 1983).publishedApp. 1970); State v. Mendoza, 454 P.2d 140, 144-45 (Ariz. 1969) ; People v. Gastelo, 432 P.2d 706, 708 (Cal. 1967) ; State v. Anonymous, 308 A.2d 251 , 252 (Conn. Super.
- State v. Attaway, 870 P.2d 103 (N.M. 1994).published
- Poole v. United States, 630 A.2d 1109 (D.C. 1993).published
67 Cal. 2d at 589 Requiring particularity in manner of forced entry11 citing cases“just as the police must have sufficiently particular reason to enter at all, so must they have some particular reason to enter in the manner chosen.”
- People v. Galan, 163 Cal. App. 3d 786 (Cal. Ct. App. 1985).published(People v. Di Santiago (1969) 71 Cal.2d 18 , 28-29 [ 76 Cal.Rptr. 809 , 453 P.2d 353 ]; People v. Gastelo (1967) 67 Cal.2d 586, 589 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ].) This is especially true where, as here, the defendant is armed with, o…
- People v. Colvin, 19 Cal. App. 3d 14 (Cal. Ct. App. 1971).published People v. DeSantiago (1969) 71 Cal.2d 18, 28 [ 76 Cal.Rptr. 809 , 453 P.2d 353 ]; People v. Gastelo (1967) 67 Cal.2d 586, 589 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ]. “[C]ompliance with the applicable knock- and-notice provision is excused not…
- People v. Hall, 479 P.2d 664 (Cal. 1971).published When asked if the money was hers, she replied “Yeah, it’s mine, but I didn’t steal it.” Search of the adjoining bathroom revealed a packet of heroin concealed within the folds of a towel. 1 Defendants urged in support of their motion to di…
- People v. Thompson, 6 Cal. App. 3d 945 (Cal. Ct. App. 1970).published“Just as the police must have sufficiently particular reason to enter at all, so must they have some particular reason to enter in the manner chosen” (People v. Gastelo (1967) 67 Cal.2d 586, 589 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ]), which w…
- People v. Perales, 4 Cal. App. 3d 773 (Cal. Ct. App. 1970).published Our Supreme Court has held that knocking (or other reasonable means of notification of presence) and identification constitute legally sufficient substantial compliance with the terms of section 844 under certain circumstances. ( Greven v.…
- Kinsey v. Superior Court, 263 Cal. App. 2d 188 (Cal. Ct. App. 1968).published(People v. Gastelo, supra, 67 Cal.2d 586 at p. 589 [“nothing”]; People v. Rosales, supra, 68 Cal.2d 299 at p. 305 [“no evidence”].) The present case is distinguishable; in the record before us, there is something.
- People v. De Santiago, 453 P.2d 353 (Cal. 1969).published
432 P.2d at 707 cited at this page1 citing case
- Price v. State, 93 S.W.3d 358 (Tex. App.—Houston [14th Dist.] 2002).published See, e.g., United States v. Lalor, 996 F.2d 1578, 1584 (4th Cir.1993); People v. Rosales, 68 Cal.2d 299 , 66 Cal.Rptr. 1 , 437 P.2d 489, 493 (1968) (providing exceptions for danger to the officer, destruction of evidence, or frustration of…
63 Cal. Rptr. at 12 cited at this page1 citing case
- Williams v. United States, 576 A.2d 700 (D.C. 1990).publishedEven accepting that drugs alone are insufficient, see, e.g., People v. Gastelo, 67 Cal.2d 586, 588 , 432 P.2d 706, 708 , 63 Cal.Rptr. 10, 12 (1976) (en banc) (rejecting blanket rule based on type of crime or evidence produced); United Stat…
v.
MAX MUNOZ GASTELO, Defendant and Appellant
Defendant appeals from a judgment of conviction of possession of heroin in violation of section 11500 of the Health and Safety Code.
The facts are not in dispute. Los Angeles police officers obtained a warrant for the search of the apartment of Donna Trujillo, with whom defendant was living, on the basis of a reliable informant’s report that he had purchased narcotics from defendant at Donna’s apartment more than 30 times during the previous 45 days. His last purchase was on December 23, 1964. About 8 :20 in the morning of Saturday, December 26, 1964, four officers went to Donna’s apartment to execute the warrant. Outside they saw an automobile that they believed was defendant’s. Two officers went to the rear door of the apartment and two to the front. Without knocking, announcing their purpose or demanding admittance, they forced entry through both doors. Defendant and Donna Trujillo were asleep in the bedroom, and the officers pulled defendant from the bed. They served the warrant, searched the apartment, and found a small packet of heroin between the mattress and box springs of the bed. Defendant was arrested. Two days later, he confessed to possession of the heroin.
Defendant contends that the trial court committed prejudicial error in admitting the heroin into evidence over his objection that it was illegally obtained in violation of Penal Code, section 1531.
Section 1531 provides that to execute a search warrant [1] ‘ The officer may break open any outer or inner door or window of a house, ... if, after notice of his authority and purpose, he is refused admittance. ’'
The Attorney General contends that compliance with section 1531 was excused under the rule of People v. Maddox (1956) 46 Cal.2d 301 [294 P.2d6].
In Maddox, we held that compliance with the substantially identical notice requirements of Penal Code section 844 for making arrests [1] 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 cases have included the prevention of destruction of evidence as an additional ground for noncompliance[*588] with section 844. (People v. Covan (1960) 178 Cal.App.2d 416 [2 Cal.Rptr. 811] ; People v. Morris (1958) 157 Cal.App.2d 81 [320 P.2d 67].) Ker v. California (1963) 374 U.S. 23 [10 L.Ed.2d 726, 83 S.Ct. 1623], approved the principle of these eases under Fourth Amendment standards of reasonableness. The same principle supports similar exceptions to the requirements of section 3531.
The Attorney General contends that unannounced forcible entry to execute a search warrant is always reasonable in narcotics cases, on the ground that narcotics violators normally are on the alert to destroy the easily disposable evidence quickly at the first sign of an officer’s presence.
We do not agree with this contention. Neither this court nor the United States Supreme Court has held that unannounced forcible entries may be authorized by a blanket rule based on the type of crime or evideneefinvolved. Indeed in the Eer case the court was divided 4 to 4 on the question whether the evidence offered to excuse compliance with the notice and demand requirements was sufficient. [2]
In Maddox, the officers knocked, heard a male voice call “wait a minute’’ followed by the sound of retreating footsteps, and only then forced entry. Similarly, in People v. Carrillo (1966) 64 Cal.2d 387 [50 Cal.Rptr. 185, 412 P.2d 377], entry followed a knock and observation of suspicious movements. In People v. Smith (1966) 63 Cal.2d 779 [48 Cal.Rptr. 382, 409 P.2d 222], and People v. Gilbert (1965) 63 Cal.2d 690 [47 Cal.Rptr. 909, 408 P.2d 365], the officers were in fresh pursuit of gun-wielding defendants. Similarly, in People v. Hammond (1960) 54 Cal.2d 846 [9 Cal.Rptr. 233, 357 P.2d 289], officers had cause to believe defendant had a gun and was under the influence of heroin at the time of arrest.
Thus we have excused compliance with the statute in accordance with established common law exceptions to the notice and demand requirements on the basis of the specific facts involved. No such basis exists for nullifying the statute in all narcotics eases, and, by logical extension, in all other cases involving easily disposable evidence. The statute does not contain the seeds of such far-reaching self-destruction.
Under the Fourth Amendment, a specific showing must always be made to justify any kind of police action tending to disturb the security of the people in their homes. Unan[*589] nouneed forcible entry is in itself a serious disturbance of that security and cannot be justified on a blanket basis. Otherwise the constitutional test of reasonableness would turn only on practical expediency, and the amendment’s primary safeguard—the requirement of particularity—would be lost. Just as the police must have sufficiently particular reason to enter at all, so must they have some particular reason to enter in the manner chosen. To the extent that People v. Manriques (1965) 231 Cal.App.2d 725 [42 Cal.Rptr. 157], and People v. Samuels (1964) 229 Cal.App.2d 351 [40 Cal.Rptr. 290], are contrary to our conclusion herein, they are disapproved.
Since there was nothing in the present ease 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. The illegally obtained evidence, which was crucial to the prosecution’s case, should therefore have been excluded.
The judgment is reversed.
McComb, J.. Peters, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
''To make an arrest, ... a peace-officer, may break open the door . . . of the house in which the person to be arrested is . . . after having demanded admittance and explained the purpose for which admittance is desired. ’ ’
Justice Harlan was of the opinion that Fourth Amendment standards should not be applied to the states, Thus, the judgment of conviction was affirmed, 5-4,