Cleaver v. Superior Court

• Decision Date: 23 May 1979
• Docket Number: S.F. 23758,S
• Citation: 594 P.2d 984,24 Cal.3d 297,155 Cal.Rptr. 559
• Parties: , 594 P.2d 984 Leroy Eldridge CLEAVER, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; The PEOPLE, Real Party in Interest. The PEOPLE, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; Leroy Eldridge CLEAVER, Real Party in Interest. F. 23759.
• Court: California Supreme Court

Page 559

155 Cal.Rptr. 559

24 Cal.3d 297, 594 P.2d 984

Leroy Eldridge CLEAVER, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent;

The PEOPLE, Real Party in Interest.

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent;

Leroy Eldridge CLEAVER, Real Party in Interest.

S.F. 23758, S.F. 23759.

Supreme Court of California, In Bank.

May 23, 1979.

Rehearing Denied July 12, 1979.

John W. Keker, Kipperman, Shawn, Keker & Brockett and Marcus S. Topel, San Francisco, for petitioner in S.F. 23758 and real party in interest in S.F. 23759.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins and Sanford Svetcov, Deputy Attys. Gen., for petitioner in S.F. 23759 and real party in interest in S.F. 23758.

No appearance for respondent.

RICHARDSON, Justice.

Defendant Eldridge Cleaver was charged, in an indictment returned by the Alameda County Grand Jury in 1968, with three counts of attempted murder (Pen.Code, § 187), and three counts of assault with a deadly weapon upon police officers (Id., § 245, subd. (b)). Subsequent to his indictment, defendant moved to suppress certain evidence pursuant to Penal Code section 1538.5. After hearing evidence and argument, the trial court granted the motion to suppress as to some of the items challenged, but denied it as to others. Both the defendant and the People seek writs of mandate, and we must now determine, on the basis of the following undisputed facts, which of the challenged items, if any, must be suppressed.

1. THE BASEMENT SEARCHES

The charges against defendant arose from an alleged shootout between Oakland police officers and persons associated with the Black Panther Party. At approximately 9 p. m. on April 6, 1968, Officers Darnell and Jensen, while on patrol in the vicinity of 2095 Union Street, Oakland, California, were fired upon unexpectedly by several assailants who fled on foot. Both officers were wounded, and a lengthy gun battle ensued as other Oakland officers were summoned to the scene.

Six of defendant Cleaver's codefendants were arrested, and defendant and his companion, Bobby Hutton, sought refuge in the basement of the residence at 1218 28th Street in Oakland. The residence was owned and occupied by Nellie Pierre, who for her safety was carried from the house by police officers during the 90-minute period while the officers laid siege to the basement where the two suspects were cornered. At approximately 11 p. m. a tear gas cannister set the building afire driving defendant and Hutton from the basement. Hutton was fatally shot when he exited the building, and Cleaver was arrested.

When police technicians McCurdy and Hussey arrived at the scene following defendant's arrest, at about 11:30 p. m., the area had already been cordoned off and sealed. McCurdy learned from his fellow officers that gunfire had been exchanged with individuals in the basement, that the basement had caught fire from tear gas cannisters, and that one of the suspects had been killed in front of the building. As the firemen were putting out the fire McCurdy and Hussey, wearing gas masks, entered the basement. Although they were able to ascertain that no persons remained in the basement, the large quantity of tear gas prevented necessary visibility and they left the basement to wait for the fumes, gas, and smoke to subside.

At 2 a. m. McCurdy reentered the basement when the gas had partly cleared. It was stipulated that the reentry was made "primarily" to look for physical evidence, and the officer saw, photographed and seized a partially burned automatic rifle. The lingering tear gas remained quite strong and McCurdy's eyes were watering and burning. During the 2 a. m. search, McCurdy also saw and removed a live tear gas cannister, which was thereupon placed in a bomb removal container and later disposed of by a bomb squad at the Oakland airport. McCurdy also removed a few spent cartridge casings as well as some live .223 caliber shells.

Since they had not yet been able to conduct a thorough search because of continued impaired visibility, McCurdy and Hussey secured the area, sealed it off with an officer on guard, and resumed their other duties.

Later, about 7 a. m., Sergeant Reed arrived and was assigned to search the basement for any evidence which had not been seen or found during the night. About 8 a. m. he entered the basement. There were still approximately three inches of water on the floor and the basement was wholly charred and dirty with rubble everywhere. The air remained smoky with a residue of tear gas. The officer observed a sleeve or collar of a jacket protruding above the murky, opaque water. He also recovered two other jackets, live and expended ammunition and other miscellaneous items in the jacket pockets, as well as pocket cartridge belts.

The People acknowledge that no search warrant was obtained for any of the entries or searches of the basement, and defendant forcefully challenges their constitutional propriety.

In determining the admissibility of the items seized during the basement searches, we apply well established principles. The Fourth Amendment to the federal Constitution and article I, section 13, of the California Constitution equally guarantee "The right of the people to be secure in their persons, houses, papers, and effects" against unreasonable searches and seizures. We have said that a search within the meaning of these constitutional provisions occurs whenever a person's reasonable expectation of privacy is violated by governmental intrusion. (People v. Edwards (1969) 71 Cal.2d 1096, 1100-1104, 80 Cal.Rptr. 633, 458 P.2d 713.) It is further settled that, in the absence of one of a number of carefully circumscribed exceptions, such a search is per se unreasonable if it is not conducted pursuant to a valid search warrant. (Mincey v. Arizona (1978) 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290; People v. Cook (1978) 22 Cal.3d 67, 97, 148 Cal.Rptr. 605, 583 P.2d 130, and cases cited therein.)

One of the recognized exceptions to the warrant requirements arises when "exigent" circumstances justify the conduct of a warrantless search. In amplifying this principle in People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 637, 545 P.2d 1333, 1341, we stated: "In this context, 'exigent circumstances' means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect Or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers." (Italics added.)

Defendant concedes that the officers' initial entry at 11:30 p. m. was valid, on the basis of exigent circumstances which existed at that time. Defendant, however, asserts that any exigency had ceased to exist by the time the succeeding 2 a. m. and 8 a. m. searches were conducted. To the contrary, as we will demonstrate, there exist several bases on which to support a holding that these later searches were proper continuations of the initial warrantless search which was frustrated by the heavy quantity of gas, smoke and fumes. Since the officers had a conceded right to conduct a full and complete inspection of the basement at 11:30 p. m., we conclude that the subsequent searches of those same premises, occurring within a reasonable time thereafter and based upon a continued state of exigent circumstances, were reasonable under the foregoing constitutional provisions.

A very similar factual situation was recently presented to the United States Supreme Court in Michigan v. Tyler (1978) 436 U.S. 499, 98 S.Ct. 1942, 156 L.Ed.2d 486. The high court in Tyler upheld a warrantless police search of a building conducted seven hours after firemen had extinguished the flames and a fire chief had entered the premises seeking evidence of arson. The court reasoned that the later police entry was a "continuation" of the initial entry and was undertaken within "a reasonable time" thereafter. The fire chief arrived at the scene of a fire at 2 a. m., just as the fire department was "watering down smoldering embers" on the premises. (P. 501, 98 S.Ct. 1942.) Upon being informed that several containers of flammable liquid had been found in the building, the chief entered the premises without a warrant, examined the containers and, concluding that the "fire 'could possibly have been an arson' " (p. 502, 98 S.Ct. p. 1946), called the police.

A police detective arrived at the scene of the fire at 3:30 a. m., approximately an hour and a half after the smoldering embers of the fire had been extinguished. He entered the building similarly without a warrant and examined the premises for evidence of arson. While in the building, the detective took several pictures of the containers and of the interior of the building and seized the containers, but "finally abandoned his efforts because of the smoke and steam." (Ibid.) By 4 a. m., the fire having been entirely extinguished, both the fireman and the police detective left the scene. At 9 a. m., when the smoke and steam had cleared from the building and daylight rendered a search of the premises safer and more informative, the police detective and fire chief returned to the scene, reentered the premises, again without a warrant, and gathered additional evidence that was ultimately introduced at the defendant's arson trial.

The lower court in Tyler, while agreeing that a burning building constituted a sufficient exigency to render a warrantless entry reasonable and constitutional, nonetheless held that "the exigency justifying a warrantless entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame." (Id., at p. 510, 98 S.Ct. at p. 1950.) The Supreme Court, however,...