People v. Messina

• Decision Date: 20 March 1985
• Docket Number: Cr. B002314
• Citation: 212 Cal.Rptr. 75,165 Cal.App.3d 937
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard James MESSINA, Defendant and Appellant.

Page 75

212 Cal.Rptr. 75

165 Cal.App.3d 937

The PEOPLE, Plaintiff and Respondent, v. Richard James MESSINA, Defendant and Appellant.

Cr. B002314.

Court of Appeal, Second District, Division 3, California.

March 20, 1985.

[165 Cal.App.3d 939] Donald W. Beacham, Culver City, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Norman H. Sokolow and Robert F. Katz, Deputy Attys. Gen., for plaintiff and respondent.

TURNER, Associate Justice. ^*

I PROCEDURAL HISTORY

In an information filed on April 13, 1983, appellant Richard James Messina was charged in Count I with manufacturing methamphetamine in violation of Health and Safety Code section 11379. In Count II, Messina was charged with possession of both methylamine and phenyl-2-propanone with intent to manufacture methamphetamine, in violation of Health and Safety Code section 11383, subdivision (a). In Count III, Messina was charged with possession for phenyl of methamphetamine in violation of Health and Safety Code section 11378. In a subsequently filed amendment to the information Messina was alleged to have been convicted of felony within the meaning of Penal Code section 1203, subdivision (e), subparagraph (4). After the denial of his motion to dismiss pursuant to Penal Code section 995, Messina entered a plea of guilty to the charge contained in Count I of the information, a violation of Health and Safety Code section 11379. Messina was sentenced to state prison for a term of three years with appropriate presentence credits and filed a timely notice of appeal.

II THE FACTS

The sole witness to testify at the preliminary hearing ¹ was Officer Roy Wunderlich of the Los Angeles Police Department. Officer Wunderlich testified that he had been a Los Angeles police officer for twelve and one-half years on January 7, 1983, and had worked as a narcotics investigator for the preceding nine years. He had special training in the field of narcotics investigation, having undergone 90 hours of classroom instruction as well as having conducted extensive reading on the subject. He had interviewed chemists from three different states and had trained a number of other officers. He had interviewed over one thousand individuals involved in the illicit manufacture of drugs and had testified in and out of California as an expert witness. He had been specifically trained in the area of clandestine laboratories and in the methods of arrest and prosecution of those persons who manufacture dangerous drugs.

On January 7, 1983, Officer Wunderlich received information that a person known as "Richard the Wop" was involved in the manufacture of methamphetamine at his address at 11219 Emelita in North Hollywood. At 4:00 p.m., on January 7, 1983, Officer Wunderlich went to the aforementioned address which was located in a residential neighborhood. Officer Wunderlich testified that there was a faint smell of methamphetamine but he could not tell from which residence it was emitting. He then returned to the Van Nuys station and using Department of Motor Vehicle records determined that Messina owned a Volkswagon which was located in the driveway of the Emelita residence which had been mentioned by the informant. Officer Wunderlich At 7:00 p.m., Officer Wunderlich returned to the Emelita Street residence with two other officers. On this occasion, the smell was "very strong" and Officer Wunderlich recognized it as the smell of phenyl-2-propanone which is the primary agent used in the manufacture of methamphetamine. Officer Wunderlich walked around the neighborhood and the closer he got to Messina's residence, the stronger the smell became. Based upon what he had observed, Officer Wunderlich formed the following opinion:

asked a Detective Sheehan whether he knew who "Richard the Wop" was and Detective Sheehan said that in the last 10 days an informant had stated that Messina was involved in the manufacture of methamphetamine. [165 Cal.App.3d 941] Additionally, Officer Wunderlich obtained a photograph as well as a physical description of Messina.

"It was my belief there was a clandestine lab in operation and there was an immediate danger."

His opinion was based upon his training and experience that such clandestine laboratories were not operated in the best of conditions and had in fact exploded in the past. Between January 1, 1980 and January 7, 1983, Officer Wunderlich was involved in the investigation of three cases where fires had resulted from the operation of a methamphetamine laboratory. One of the fires had occurred two months prior to Messina's arrest in the present case.

Based upon his observations and his opinion, Officer Wunderlich immediately returned to the North Hollywood Police Station, notified the fire department and requested their assistance. Officer Wunderlich then, along with other officers, developed a plan of entry into the residence. He did not have a search warrant nor did he have permission to enter and search. He desired to enter and search the residence on Emelita because he felt "there was an immediate danger there" and it was his experience that laboratories such as the one he expected to find in Messina's residence "have caught on fire and resulted in fires and explosions ..." which have resulted in "death and injury." Officer Wunderlich testified that he had been in approximately 20 clandestine laboratories and there has been a danger of chemical fire or explosion in every laboratory. The fire trucks went to the North Hollywood station which was several blocks from Messina's residence and awaited further instructions. One of the firefighters was given a police radio.

Several officers then returned to Messina's residence. The front door was open and Officer Wunderlich stated in a loud voice on three occasions, "Police officer." Furthermore, Officer Wunderlich knocked on the doorjamb. When he received no response he "entered the porch area, knocked again, stated 'police officer, narcotics investigation.' " There was still no response and a boot was thrown into the residence to see if the officers "could stir anybody." When there was no response again, the officer entered the residence and found Messina present. As soon as the residence was secure, the firefighters were directed to go to the residence. Inside the residence, a methamphetamine laboratory was found.

APPELLANT'S CONTENTIONS

Appellant presents two contentions. First, he contends that the evidence which was seized inside the Emelita Street residence was the product of unlawful search and seizure. Second, Messina contends that he was denied his right to cross-examine Officer Wunderlich at the preliminary hearing on issues related to the motion to suppress evidence pursuant to Penal Code section 1538.5, subdivision (f).

III DISCUSSION

A. EXIGENT CIRCUMSTANCES JUSTIFIED THE WARRANTLESS ENTRY INTO AND SEIZURE IN THE RESIDENCE

The motion to suppress evidence pursuant to Penal Code section 1538.5, subdivision "A warrantless entry of a dwelling is constitutionally permissible where the officers' conduct is prompted by the motive of preserving life and reasonably appears to be necessary for that purpose. [Citations.] And in determining whether an officer acted reasonably we must consider only reasonable inferences which he is entitled to draw from the facts in the light of his experience."

(f), was properly denied in the municipal court because the magistrate reasonably could have found that there were exigent circumstances to excuse compliance with the warrant requirement. In People v. Hill (1974) 12 Cal.3d 731, 754, 117 Cal.Rptr. 393, 528 P.2d 1, the Supreme Court held:

Exigent circumstances have been extended to include a search for persons who might be hiding in a residence. (People v. Block (1971) 6 Cal.3d 239, 244, 103 Cal.Rptr. 281, 499 P.2d 961.)

Of course, the danger of explosion is certainly a proper justification to enter without a warrant and disassemble a potentially dangerous instrumentality in a residential neighborhood. In People v. Scheib (1979) 98 Cal.App.3d 820, 828, 159 Cal.Rptr. 665, the Court of Appeal held:

"In the case at bench the presence of explosives and dangerous weapons in an area used by many people, including children, who might be unaware of the presence of such material, constituted a dangerous condition, comparable to a fire, that required immediate neutralization by the public authorities. The entry of the deputies onto the land in order to render it safe was as justified as the entry of firemen into a burning building. The continued presence of the deputies on the land was justified in order to reasonably insure that all dangerous material had been discovered and removed."

This court in People v. Patterson (1979) 94 Cal.App.3d 456, 462-464, 156 Cal.Rptr. 518, held that exigent circumstances existed for a warrantless arrest in a residence because of an existence of a PCP lab. In Patterson, the officer who conducted the search without a warrant gave as the reason for not attempting to secure a warrant the following justification:

"Due to the circumstances I felt that it was my duty to act promptly as I am well aware of the volatile nature of the chemical [sic] used in the manufacture of phencyclidine and felt that I had to act immediately due to the danger of explosives." (People v. Patterson, supra, 94 Cal.App.3d 463, 156 Cal.Rptr. 518.)

This court concluded that given the officer's past experience and expertise that it was entirely reasonable to conclude that there were sufficient dangers present to constitute exigent circumstances. Accordingly, we follow Patterson. Because of Officer Wunderlich's expertise and training it was entirely reasonable for him to conclude that there was a serious threat to public safety and there was no requirement that he obtain a warrant before acting to protect the public in a residential neighborhood in which there was a methamphetamine laboratory being operated.

Furthermore, it is abundantly clear that the...