People v. Ellers

• Citation: 108 Cal.App.3d 943,166 Cal.Rptr. 888
• Decision Date: 04 August 1980
• Docket Number: Cr. 8723
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Jording ELLERS, Defendant and Appellant.

Page 888

166 Cal.Rptr. 888

108 Cal.App.3d 943

The PEOPLE, Plaintiff and Respondent, v. John Jording ELLERS, Defendant and Appellant.

Cr. 8723.

Court of Appeal, Fourth District, Division 1, California.

Aug. 4, 1980.

App. Defenders, Inc., by Jeffrey K. Jayson, La Jolla, and Stephen J. Perrello, Jr., San Diego, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth and Rudolf Corona, Jr., San Diego, for plaintiff and respondent.

WIENER, Associate Justice.

Defendant John Jording Ellers appeals the judgment following his jury conviction of sale of heroin (Health & Saf. Code, § 11352 (count one)) and being under the influence of heroin (Health & Saf. Code, § 11350 (count three)). For the reasons we discuss below, we affirm the judgment as to count one and reverse as to count three. ¹

Factual Background

On March 2, 1977, Michael Becker and the El Cajon Police Department entered into a written agreement providing for the dismissal of burglary charges against Becker and his girlfriend if Becker would buy some heroin and disclose the identity of the dealer. Becker identified the dealer as Ellers.

After being searched, Becker went with Detective Lowery in an unmarked police vehicle to a place about 100 yards from Ellers' residence in El Cajon. They waited inside the car for Ellers' arrival. Lowery gave Becker $30 in cash, including a $20 bill and a $10 bill, to buy heroin. After spotting Ellers, Lowery drove down the street and into a driveway next to Ellers' residence. Becker approached the front door of Ellers' apartment, through which he saw several people standing inside the apartment. Ellers invited him in. Upon entering, he saw other people buying heroin from Ellers. Reaching over them, he handed Ellers $30, received in exchange one red balloon and a $5 bill, and returned to Lowery's car. The entire transaction lasted only a few minutes.

Becker told Lowery, "It's down," and handed him the red balloon and the $5. Lowery radioed other police units in the area the buy was completed and to meet at the parking lot behind Pernicano's Restaurant about a mile away. At Pernicano's, the officers talked for ten to fifteen minutes and formulated a plan to arrest Ellers. Without Becker, they returned to Ellers' residence to arrest him. Detectives Lowery and Narramore approached the front door of the apartment; Narramore knocked on the door, announced he was a police officer investigating the sale of narcotics, and demanded entry. They saw a man standing near the front door, chewing. After no response for ten to fifteen seconds, Narramore repeated his statement. Still receiving no response and fearful Ellers might be destroying evidence, they entered the premises and took custody of Ellers, who was standing near the doorway. They arrested him for the sale of heroin.

Observation and examination of him by Lowery revealed he was under the influence of heroin. Narramore advised him of his Miranda rights. Ellers waived them and agreed to answer questions posed by Narramore. After denying the existence of any heroin on the premises, he was taken to the El Cajon Police Station. While in custody, he was again examined to determine whether he was under the influence of a drug. A urine sample showed he was under the influence of heroin. Lowery reminded Ellers he had been previously advised and waived his Miranda rights, and had agreed to talk with them. Ellers acknowledged this and agreed to answer further questions by the police. Lowery asked him when was the last time he had shot up with heroin, to which Ellers replied, "I haven't. " I'm on Methadone. " In response to another question, he admitted to being a heroin addict for approximately 18 to 20 years.

When Ellers was taken to the police station, Lowery and another police officer remained at the apartment to secure the premises and to procure a telephonic search warrant. During their waiting period, the officers saw three persons drive up to the residence. One, Sherry Lee Rice, left the car first, and walked in the front door of the apartment carrying $75 in her hand. She was arrested for being under the influence.

The Motion To Suppress

Ellers urges the trial court erred prejudicially in failing to exclude tainted evidence, the result of his illegal arrest without a warrant in his apartment. In response, the Attorney General contends Ellers' failure to press for a definitive ruling regarding the suppression of that evidence precludes his assertion the evidence was erroneously admitted at trial. In the alternative, the People assert the court erred in finding the arrest was unlawful.

At the pre-trial hearing, Ellers joined the co-defendant in a motion to set aside the information and to suppress all the evidence (Pen.Code, §§ 995 and 1538.5). The court found corroboration of a previously untested informant could not be based upon the observations by the officers of the controlled buy conducted for the immediate offense. The court also determined there were no exigent circumstances permitting a warrantless arrest of Ellers in his home. Hence, after finding Becker "was an untested, or uncorroborated, or biased, and a self-serving informer without credibility" as well as concluding there was an absence of exigent circumstances, the court held there was no reasonable or probable cause to arrest Ellers without a warrant and accordingly dismissed the second count relating to possession of hashish which was found after the arrest and constituted the total basis of that charge.

The Attorney General asserts the trial court erred in failing to find the police officers' observations of the controlled buy constituted sufficient independent corroboration of the untested informant's information to establish probable cause for Ellers' arrest. Because we conclude the trial court's determination of the absence of exigent circumstances pursuant to People v. Ramey (1976) 16 Cal.3d 263, 275-276, 127 Cal.Rptr. 629, 545 P.2d 1333, was correct, we find it unnecessary to address this assertion.

In People v. Ramey, supra, our Supreme Court held an arrest without a warrant within the home is per se unreasonable in the absence of exigent circumstances. Exigent circumstances were defined as:

". . . 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." (16 Cal.3d at p. 276, 127 Cal.Rptr. at p. 637, 545 P.2d at p. 1341.)

The respondent argues the likely exhaustion of the supply of heroin through sale required the officers' return to the apartment to secure it, to prevent further sales, and to prevent the loss of the contraband. The speed with which the arrest had to be accomplished was based upon the substantial traffic at the apartment; prompt action was necessary to prevent the inventory of heroin from being sold out.

We believe the trial court was correct in holding the officers did not have a factual basis from which to reasonably believe the heroin would be sold out during the time a telephonic search warrant was sought. The informant had no personal knowledge concerning the quantity of the heroin held by Ellers that evening. An awareness of heavy traffic without more does not establish the necessity of the immediate action, which was taken. We note the officers waited a period of time before they acted. They first met at a parking lot to discuss the matter. This further supports the superior court's finding there was adequate time to obtain a warrant. The exigent circumstances excusing compliance with Ramey were non-existent. (Cf. People v. Cornejo (1979) 92 Cal.App.3d 637, 651-652, 155 Cal.Rptr. 238.) Accordingly, the police officers' observations relating to Ellers' being under the influence, the third parties' arriving at the residence following the arrest, and the results of his urinalysis should have been suppressed and excluded. (Wong Sun v. United States (1963) 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441; People v. Sesslin (1968) 68 Cal.2d 418, 426-431, 67 Cal.Rptr. 409, 439 P.2d 321; People v. Gardner (1968) 266 Cal.App.2d 19, 22, 71 Cal.Rptr. 568.)

The Failure To Press For a Definitive Ruling Constituted Ineffective Representation

Relying on People v. Rodgers (1976) 54 Cal.App.3d 508, 516-517, 126 Cal.Rptr. 719, and People v. Obie (1974) 41 Cal.App.3d 744, 750, 116 Cal.Rptr. 283 (disapproved on other grounds in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4, 141 Cal.Rptr. 177, 569 P.2d 771), the Attorney General contends that defense counsel's failure to press the court for a specific finding on what evidence was to be suppressed relating to the first and third counts at the pre-trial hearing constituted a waiver of the right to litigate the issue on appeal.

In People v. Rodgers, supra, it was held that where, at a suppression hearing, defense counsel moved that information supplied by an unnamed informant should not be considered as part of the basis for probable cause to arrest, but failed to insist on an appropriate ruling (i. e., order excising police officer's testimony relating to informant), counsel was deemed to have abandoned the point and thus the issue was not cognizable on appeal. Similarly, here, defense counsel's written notice for the motion to suppress all the evidence obtained following the arrest and the trial court's finding of an unlawful arrest mandated the suppression and exclusion of the police officers' observations and the results of the urinalysis. (Wong Sun v. United States, supra, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441; People v. Sesslin, supra, 68 Cal.2d 418, 426-431, 67 Cal.Rptr. 409, 439 P.2d 321; ...