People v. Duncan

• Decision Date: 10 July 1986
• Citation: 42 Cal.3d 91,227 Cal.Rptr. 654,720 P.2d 2
• Parties: , 720 P.2d 2, 55 USLW 2121 The PEOPLE, Plaintiff and Respondent, v. Mark DUNCAN et al., Defendants and Appellants. Crim. 24414.
• Court: California Supreme Court

Page 654

227 Cal.Rptr. 654

42 Cal.3d 91, 720 P.2d 2, 55 USLW 2121

The PEOPLE, Plaintiff and Respondent, v. Mark DUNCAN et al., Defendants and Appellants.

Crim. 24414.

Supreme Court of California,

In Bank.

July 10, 1986.

Rehearing Denied Aug. 28, 1986.

Dennis Roberts, Michael P. Thorman, Morris & Thorman, Hayward, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Ronald E. Niver, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Ira Reiner, Dist. Atty., Los Angeles, Harry B. Sondheim and Eugene D. Tavris, Deputy Dist. Attys. as amici curiae on behalf of plaintiff and respondent.

MOSK, Justice.

Does the odor of ether and other evidence that an unlawful drug laboratory is in operation constitute exigent circumstances sufficient to justify the warrantless entry and search of a dwelling. As will appear, we conclude that such a determination must be made on a case-by-case basis and that in the case at bar the entry and search were justified.

On April 7, 1981, at approximately 12:30 p.m., Officer Steven Paulson responded to a radio call that a burglary was in progress or had just occurred. He arrived promptly at the scene and spoke to a neighbor; testimony conflicted as to whether the neighbor told him he had seen two teenagers flee with a television set.

Paulson then inspected the house assertedly being burglarized, finding the doors locked but a back window open. On the ground beneath the window was a box containing a television set and other items. Surmising that one or more of the burglars was still inside, Paulson climbed in the open window to search for intruders. What he saw instead was, in his own words, "a lot of glassware, a couple of bags of white powder, one had ... 'second cooking' written on it and then it had so many grams written on the package. I saw a couple of containers with ether acetate." He also observed Bunsen burners, tubing, and a piece of paper with a formula written on it pinned to the wall of an adjacent room. The room smelled strongly of ether. He suspected he had stumbled on an illicit drug laboratory.

Feeling dizzy from the odor and unsure of what to do, Paulson went into the kitchen and radioed his supervisor, Sergeant Lance House, who arrived approximately five minutes later and was let in the front door. House smelled a strong chemical odor and observed gallons of acetone, beakers, vials, and a heat lamp in operation. He had more experience with illicit drug laboratories than Paulson, and hustled the latter out of the house because he feared an explosion and knew it was unhealthy to breathe the chemical fumes. House directed Paulson to wait in a neighbor's driveway while he went to his patrol car and called vice control Officer Everett Gremminger to request his aid.

After informing Gremminger that Paulson had located a sophisticated drug laboratory with a large quantity of chemicals, House was told by a neighbor that the occupant of the dwelling was driving up in his car. House directed Paulson to the rear of the premises, where the latter observed that the box of articles was no longer present. House then knocked on the door and defendant Mark Duncan answered. When House questioned him about the burglary, Duncan stepped outside and shut the door behind him. He agreed to accompany the officers to the patrol car to give information for a burglary report.

Meanwhile, Gremminger arrived. He could smell the strong ether odor from the driveway. Paulson and House related what they had seen, but were unable to say whether any chemicals were being heated or whether the laboratory was otherwise in actual operation. Duncan refused to give any information regarding the nature of the laboratory. Gremminger then called the fire department and the federal drug enforcement agency, and entered the premises.

House directed Gremminger to the room containing the apparatus and chemicals, and Gremminger concluded it was an illicit PCP laboratory. ¹ He ordered the building secured and instructed the firefighters to turn off the gas and electricity and to ventilate the residence. He then obtained a search warrant for the house and defendant's car based on his observations and photographs. The search produced, inter alia, phenyl-2-propanone, methamphetamine, and methylamine.

Defendants ² were charged with possession of methylamine and phenyl-2-propanone with intent to manufacture D.L. methamphetamine (Health & Saf. Code, § 11383, subd. (a)), and transportation and sale of methamphetamine (ibid., § 11378). They moved to suppress the seized articles pursuant to Penal Code section 1538.5. Upon the denial of their motion they pleaded guilty to both charges. They appeal from the orders placing them on conditional probation. "The order granting probation is 'deemed to be' a final judgment for the limited purpose of an appeal therefrom." (People v. Cook (1975) 13 Cal.3d 663, 667, fn. 1, 119 Cal.Rptr. 500, 532 P.2d 148; Pen.Code, § 1237, subd. (a).)

Because the People concede that no warrant was issued before that obtained by Gremminger, and that the warrant resulted from the observations of the three officers inside defendants' residence, they have the burden to prove the warrantless entries were justified. (People v. Hill (1974) 12 Cal.3d 731, 753, 117 Cal.Rptr. 393, 528 P.2d 1.) To meet this burden the People rely on the exigent circumstances exception to the warrant requirement. We have defined "exigent circumstances" to include "an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property...." (People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333.) The action must be "prompted by the motive of preserving life or property and [must] reasonably appear[ ] to the actor to be necessary for that purpose." (People v. Roberts (1956) 47 Cal.2d 374, 377, 303 P.2d 721.)

Thus the exigent circumstances test involves a two-step inquiry: first, factual questions as to what the officer knew or believed and what action he took in response; second, a legal question whether that action was reasonable under the circumstances. (See People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961.) On appeal, a reviewing court must affirm the trial court's determinations of the factual questions if they are supported by substantial evidence, but must take the ultimate responsibility for deciding the legal question according to its independent judgment. (Ibid.) "As a general rule, the reasonableness of an officer's conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. [Citation.] And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or 'hunches,' but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary." (People v. Block (1971) 6 Cal.3d 239, 244, 103 Cal.Rptr. 281, 499 P.2d 961.)

A. Officer Paulson

The Attorney General maintains that Paulson's warrantless entry into defendants' residence was justified by the exigent circumstance of a burglary in progress. Defendants concede that an officer may enter a dwelling without a warrant if he reasonably believes a burglary is being committed therein. (See People v. Bradley (1982) 132 Cal.App.3d 737, 744, 183 Cal.Rptr. 434.) They maintain, however, that the facts known to the officer at the time of his entry do not support a reasonable belief that the crime was still in progress. The issue is thus what the officer believed and whether his actions were reasonable in light of these beliefs.

There was conflict in the testimony both at the preliminary hearing and the motion to suppress regarding the police broadcast, i.e., whether it had stated that the burglary had occurred or was occurring and whether the neighbor had told Paulson the suspects had fled with the television or had run around the side of the house. But Paulson testified he found an open window with a television and other articles beneath it. He thought the suspects were still inside because "they put the contraband sitting on the outside. Usually if they're going to be gone, they'd take it with them so there is a possibility that they are still inside collecting more loot."

Apparently the trial judge believed Paulson. He found reasonable his suspicion that one or more of the burglars was still inside. The factual aspect of this ruling--that the officer did in fact believe the suspects were in the house--must be upheld if it is supported by substantial evidence. (Leyba, supra, 29 Cal.3d at pp. 596-598, 174 Cal.Rptr. 867, 629 P.2d 961.) We hold that it is. Even if Paulson had been told the suspects had fled, the presence of a television and other property beneath the open window could mean the witness was wrong about the flight, or other burglars were still inside collecting more property, or the fleeing burglars had returned. These possibilities support the reasonableness of Paulson's actions. It would have been poor police work indeed for an officer to fail to investigate under circumstances suggesting a crime in progress.

B. Sergeant House

That Paulson's entry was permissible does not necessarily justify the subsequent entry of Sergeant House. The initial justification for Paulson's entry--the possibility that burglars were inside the house-- ended when he discovered the house was empty; a search or seizure based on exigent circumstances ends when the emergency passes. (People v. Roberts, supra, 47 Cal.2d 374, 378-379, 303 P.2d 721.) However, "in the course of conducting a reasonable search [the police do] not have to blind themselves to what [is] in plain sight simply because it [is]...