People v. Dickson

• Decision Date: 15 July 1983
• Docket Number: Cr. 42521
• Citation: 144 Cal.App.3d 1046,192 Cal.Rptr. 897
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Luther DICKSON, Defendant and Appellant.

Page 897

192 Cal.Rptr. 897

144 Cal.App.3d 1046

The PEOPLE of the State of California, Plaintiff and Respondent, v. Luther DICKSON, Defendant and Appellant.

Cr. 42521.

Court of Appeal, Second District, Division 7, California.

July 15, 1983.

Hearing Denied Sept. 21, 1983.

Berger, Michelena, Mastroni & Huntoon and Louis H. Berger, Los Angeles, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

JOHNSON, Associate Justice.

Luther Dickson appeals from the judgment entered upon his plea of guilty to manufacturing methaqualone for sale (Health & Saf.Code, § 11379). He contends that certain physical evidence should have been suppressed on grounds it was unlawfully discovered and seized at a Los Angeles residence. We find merit in this claim of unlawful search and seizure though for different reasons than asserted in appellant's brief.

I. STATEMENT OF FACTS AND PROCEEDINGS BELOW

Evidence relating to the search and seizure was taken both at the preliminary hearing and a hearing on a 1538.5 motion. Viewed in accordance with the standard of review of an order denying a suppression motion (People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961), the evidence established that at approximately 8 p.m. on October 7, 1980, while Los Angeles Police Officer Michael Pytel was in a patrol car near Figueroa and 65th Streets, he noticed an odor similar to ether. He exited the patrol car and walked toward a house at 6507 South Figueroa, approximately 35 yards from the patrol car. The odor became increasingly strong as he approached the house. Believing that the odor was emanating from a laboratory, he summoned the fire department, police chemists and backup units.

While awaiting their arrival, Pytel walked up an outside stairway to the house and tried to open a wrought iron gate that was five feet in front of the front door. The gate was locked, but the door was open. From outside the gate he saw "bottles, jars, different types of equipment" inside the house. However, Pytel did not testify that these bottles, jars and equipment were of a kind typical or unique to a laboratory. Officer Pytel also heard the sound of a radio or television coming from the house. Officer Pytel then retreated down the outside stairway. He and his partner waited out of sight another 30-45 minutes for the police backup units.

After the backup units and fire truck arrived, Pytel and several other uniformed officers climbed the stairs to the house with their guns drawn and carrying a crowbar borrowed from a neighbor in case they had to force the iron gate. Appellant came out to the gate and looked toward the officers. Pytel immediately identified himself as an officer and told appellant to unlock the gate. Appellant did so.

Officer Pytel and other officers then entered the house. Pytel noted the same ether odor was even stronger inside. He also saw paraphernalia and chemicals similar to those he had seen previously in illicit Los Angeles police criminalist Michele Hawkins testified that when she arrived at the house soon after Pytel's summons, she detected a high concentration of organic compounds in the air. Appellant complained of heart problems and was taken to a medical facility. He was not found to be suffering the symptoms of anesthesia or narcosis.

                narcotic laboratories. 1  The officers found no one else inside the house.  Officer Pytel thereupon arrested appellant for manufacturing illicit narcotics
                

Five witnesses called by appellant testified there was no chemical odor in the air in the vicinity of the house. They further testified that police officers made no attempt to evacuate them from their houses or to warn them an explosion or fire might occur. In addition, a safety engineer testified a strong odor of ether could be detected 35 yards from its source. In that event, however, the concentration at the source would be enough to cause anesthesia or narcosis. Furthermore, at that concentration it would be imprudent for a person who believed there was imminent danger of explosion to make entry with a drawn revolver.

Appellant's attack on credibility of the witnesses is of no avail since that was a matter for the trial court, which resolved the issue in favor of the People's witnesses. (People v. Leyba, supra, 29 Cal.3d 591, 174 Cal.Rptr. 867, 629 P.2d 961; People v. Reyes (1974) 12 Cal.3d 486, 116 Cal.Rptr. 217, 526 P.2d 225; People v. Kunkin (1973) 9 Cal.3d 245, 107 Cal.Rptr. 184, 507 P.2d 1392; People v. Newland (1940) 15 Cal.2d 678, 104 P.2d 778.) However, accepting officer Pytel's testimony as true, substantial questions remain as to the validity of this search and thus the admissibility of the evidence discovered and seized at the residence.

II. THE RELATIONSHIP BETWEEN PROBABLE CASE AND "EXIGENT CIRCUMSTANCES"

At the threshold, we note this arrest and search cannot be justified on grounds appellant consented to the officers' entry into his home. A "request" from a half dozen uniformed police officers moving up one's stairs with pistols drawn hardly invites the expression of free will. Yielding to that "request" cannot qualify as consent within the meaning of the consensual search exception to the Fourth Amendment. (People v. McKelvy (1972) 23 Cal.App.3d 1027, 100 Cal.Rptr. 661; Stern v. Superior Court (1971) 18 Cal.App.3d 26, 95 Cal.Rptr. 541; United States v. Jones (6 Cir.1981) 641 F.2d 425; United States v. Marshall (9 Cir.1974) 488 F.2d 1169; LaFave, Search and Seizure (1978) § 8.2(b), pp. 642-43.) Accordingly, the officers' initial entry into appellant's home must be justified on grounds they were entitled to intrude into appellant's home without his consent.

The officers did not enter appellant's home to execute a search warrant nor an arrest warrant. Indeed they had not attempted to obtain either. Rather they seek to justify the initial intrusion into a dwelling and the ensuing arrest and search under the rubric of "exigent circumstances."

There appears to be some confusion in the record below about how "exigent circumstances" were being used to justify the officers' actions.

Our review of the authorities indicates "exigent circumstances" have excused compliance with three very different and distinct search and seizure requirements related to dwellings. ² First, when officers have obtained a valid search or arrest warrant, "exigent circumstances" may allow them to dispense with the ordinary "knock and notice" requirements in entering a premises to The first two applications of "exigent circumstances" presuppose probable cause either to arrest or to search. Without that probable cause it is irrelevant whether the officers can be excused from obtaining a warrant or complying with ordinary "knock and notice" requirements, the search still fails. The third application, on the other hand, validates an entry and incidental search even though the officers did not possess sufficient proof of criminal activity to qualify as probable cause for an arrest or search. However, when probable cause is lacking only one species of "exigent circumstances" ordinarily will suffice: the unconsented to entry must be necessary to prevent serious and imminent peril to life, health or property. (People v. Roberts, supra, 47 Cal.2d 374, 303 P.2d 721; Model Code of Pre-Arraignment Procedure [§ 260.5, Proposed Official Draft, 1975].)

                execute that warrant.  (People v. Gastelo (1967) 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706 [exigency may be potential destruction of evidence if notice given];  People v. Dumas (1973) 9 Cal.3d 871, 109 Cal.Rptr. 304, 512 P.2d 1208 [exigency may be potential danger to persons if notice given];  People v. Fernandez (1967) 255 Cal.App.2d 842, 63 Cal.Rptr. 778;  People v. Henderson (1976) 58 Cal.App.3d 349, 129 Cal.Rptr. 844;  LaFave, Search and Seizure, supra, §§ 4.8(d), (e), pp. 131-37;  Witkin, Cal.Evidence (2d 1977) Supp., § 136B, pp. 282-84.)   Secondly, when officers have valid probable cause to believe a certain suspect has committed an offense "exigent circumstances" may excuse them from obtaining a warrant before entering the premises to arrest that person. 3  (People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, [144 Cal.App.3d 1053] 545 P.2d 1333;  Payton v. New York (1980) 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639;  Donnino and Girese,  Exigent Circumstances for a Warrantless Home Arrest 45 Albany L.Rev. 90 (1980).)   Finally, when officers lack sufficient probable cause to believe a certain suspect has committed an offense or that a given premises houses criminal activity or evidence, "exigent circumstances" sometimes can function as a substitute for probable cause to legitimate a forced entry into a house or other premises.  (People v. Roberts (1956) 47 Cal.2d 374, 303 P.2d 721;  LaFave, Search and Seizure, supra, § 6.5(d), pp. 455-58.)
                

It is not altogether clear which one, or more, of these three distinct applications of "exigent circumstances" was used by the trial court to sustain the search in this case. Accordingly, we scrutinize the propriety of the officers' entry under all three.

III. THE OFFICERS LACKED PROBABLE CAUSE FOR A WARRANTLESS SEARCH

Since probable cause is a prerequisite to the relevance of the first two applications, we begin with the question of whether the officers had probable cause for an arrest or search before entering appellant's property. At that time, they had two pieces of evidence which might be deemed to bear on probable cause--a strong odor of ether emanating from the premises and officer Pytel's observations of "bottles, jars, and other equipment" inside the home. However, on closer examination, officer Pytel's visual observations from appellant's front stairs appear irrelevant to the probable cause issue.

In neither his preliminary...