Aрpellant contends that the trial court erred in denying his motion to suppress evidence seized when police officеrs, on two occasions, broke through the door of an apartment in which appellant’s co-defendant was engagеd in accepting telephone bets on horse races.
The government challenges appellant’s standing to objеct on the ground that he was not present when the searches occurred, and that it does not appear from the rеcord that appellant owned or leased the premises searched. Appellant responds that he did not offer evidence of his interest in the premises at the hearing on the motion to suppress because, by agreement, the motiоn was determined largely on stipulated facts, and the government did not question his standing. We agree with appellant that in these сircumstances his standing cannot be challenged for the first time on appeal.
*717 It was stipulated in the trial court that the offiсers did not comply with the requirement of section 844, California Penal Code, that before breaking open a door to make an arrest police officers must demand admittance and explain the purpose for which admittance is required.
Ordinarily, the validity of an arrest by state officers is to be determined according to the law of the state in which the arrest occurs. United States v. DiRe,
It was stipulated “that the officers forced entry based solely upon their past experience in bookmaking cases” that betting markers and other evidence would be quickly destroyed if notice were given. The government called the district court’s attention to a decision of a California intermediate appellate court holding thаt such general knowledge and experience on the part of local officers was sufficient in itself to justify forcible еntry without prior announcement. People v. Russell,
On October 30, 1967, subsеquent to the decision of the trial court, the Supreme Court of California announced its decision in People v. Gastelo,
The Attorney General сontends that unannounced forcible entry to execute a search warrant is always reasonable in narcotics сases, on the ground that narcotics violators normally are on the alert to destroy the easily disposable evidenсe 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 оr evidence involved. Indeed in the Ker case the court was divided 4 to 4 on the question whether the evidence offered tо excuse compliance with the notice and demand requirements was sufficient.
In Maddox [People v. Maddox,46 Cal.2d 301 ,294 P.2d 6 (1956)], 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. Cаrrillo (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-wiеlding 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 оf 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 *718 involved. No suсh basis exists for nullifying the statute in all narcotics cases, and, by logical extension, in all other cases involving easily disposablе 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. Unannounced 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. Manriquez (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 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. The illegally obtained evidence, which was crucial to the prosecution’s case, should therefore have been excluded. [Footnote omitted.]
Since it is stipulated that the officers in the present case had no reason for omitting a prior announcemеnt of their identity and purpose except general knowledge that destruction of evidence was likely in this type of offense, the decision in People v. Gástelo requires reversal.
Reversed.