People v. Osuna

• Decision Date: 05 December 1986
• Citation: 232 Cal.Rptr. 220,187 Cal.App.3d 845
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Daniel Felipe OSUNA, Defendant and Respondent. B004059.

Page 220

232 Cal.Rptr. 220

187 Cal.App.3d 845

PEOPLE of the State of California, Plaintiff and Appellant, v. Daniel Felipe OSUNA, Defendant and Respondent.

B004059.

Court of Appeal, Second District, Division 2, California.

Dec. 5, 1986.

Review Denied Feb. 25, 1987.

Ira Reiner, Dist. Atty. of Los Angeles County, Arnold T. Guminski and Eugene D. Tavris, Deputy Dist. Attys., for plaintiff and appellant.

Roger J. Rosen, Los Angeles, for defendant and respondent.

GATES, Associate Justice.

Our initial decision in this matter was filed March 29, 1985. Although our Supreme Court subsequently granted defendant's request for review, it has now returned the matter to us "with directions to refile [our] opinion with appropriate reference to People v. Duncan (1986) 42 Cal.3d 91 [227 Cal.Rptr. 654, 720 P.2d 2]." 231 Cal.Rptr. 756, 728 P.2d 1. Duncan held the determination whether "the odor of ether and other evidence that an unlawful drug laboratory is in operation constitute[s] exigent circumstances sufficient to justify the warrantless entry and search of a building" is one that "must be made on a case-by-case basis and in the case at bar the entry and search were justified." (Id. at p. 95, 227 Cal.Rptr. 654, 720 P.2d 2.) Our high court's directive to "refile [our] opinion," merely adding an "appropriate reference to People v. Duncan," demonstrates its members unanimously agreed with our original conclusion. We, therefore, comply with their command and again authorize publication in the hope that this decision will supply yet another helpful example of an instance wherein "entry and search were justified."

The People appeal from the judgment dismissing the criminal action that had charged Daniel Osuna with possessing cocaine for sale (Health & Saf.Code, § 11351; Pen.Code, § 1203.073, subd. (b)(1)). They seek review of the court's order granting defendant's motion to suppress the proofs of his guilt.

In this instance the trial court made clear that its challenged ruling was not based upon any determination of credibility, nor upon the resolution of those few facts that could be said to have been disputed. Rather it announced its belief that as a matter of law, it was compelled to suppress the evidence by the decision in People v. Dickson (1983) 144 Cal.App.3d 1046, 192 Cal.Rptr. 897. ¹ It specifically urged the People to appeal its order, a recommendation that would have been pointless had it not found the testimony of the People's witnesses credible. As a consequence, we shall accept the potentially determinative facts, and inferences reasonably to be drawn therefrom, that are most favorable to the People.

When so viewed the record would support the conclusion that at approximately 3:15 a.m. on February 8, 1983, Los Angeles County Deputy Sheriff John Villalobos and another officer chanced to pass by a small family residence at the moment, or immediately thereafter, that defendant had completed chemically processing a substantial quantity of raw cocaine into its free base form. During this operation the ether fumes had become so strong defendant became dizzy. He, therefore, had dumped the used chemicals down a toilet and set their containers and the buckets he had been using on the back porch. When combined with other evidence it also appears, at least inferentially, that defendant had drawn back the sheet that ordinarily covered a back window and opened it to aid in dissipating the accumulated toxic odors. ²

The officers parked and walked back along the street against the wind. The chemical odors grew stronger until they reached defendant's residence where, on the windward side, it essentially disappeared. ³ Officer Villalobos then walked down the driveway of the adjoining property and directed the beam of his flashlight into a window at the rear of defendant's house from which the covering had been partially removed. In plain sight therein, he observed a quart-sized jar on a shelf containing a substance which he believed might be "phencyclidine in its liquid form." While so engaged he heard a dog barking and the sound of a toilet flushing, suggesting that his arrival indeed had coincided with defendant's illegal disposal of his used chemicals by pouring them into the public sewer.

Officer Villalobos believed he might have come upon a "home laboratory" where someone was manufacturing contraband, with all the perils attendent to such an operation. ⁴ He, therefore, followed the then current policy of the sheriff's office and summoned the fire department before taking further action. That is, originally it had been official policy to effect entry immediately in order "to save lives." Later, however, it had been decided it would be more legally prudent, and pragmatically safer, first to summon the fire department whose personnel would have the necessary expertise to confirm the nature and severity of the situation as well as the equipment to deal with any fires or explosions that might be caused, either accidentally or intentionally, by persons within the premises. ⁵

A fire department truck soon arrived as did backup police officers who surrounded the house and cordoned off the immediate area. A fire captain confirmed the existence of the strong chemical odor and the fact that there existed "a very volatile situation that just about any spark could set and ignite the fumes and cause an explosion." Therefore, accompanied by this captain, Villalobos knocked on the front door of the residence with his flashlight and announced his identity. Being unlatched, the door "opened by itself" and the officer observed defendant seated on the sofa inside. From his position at the front door the deputy also "observed some human feet in what appeared to be another bedroom exposed on a mattress."

Villalobos directed defendant to step outside, after which he and other officers roused five individuals sleeping in the adjoining bedroom. A total of nine people including defendant's younger siblings, his parents and grandparents were removed from the premises.

After Villalobos had assisted the fire department personnel in "clear[ing] the area with their fans and whatnot," he retrieved the jar he had observed earlier, as well as two covered five gallon drums. One was partially filled with ethyl ether anhydrous, the other with acetone. ⁶ Also recovered were several other items containing powdery substances of various colors, each of which, like the jar, emitted the odor of ether.

In determining the instant appeal, we need not, and shall not, seek to review and critique the many ratiocinations contained in People v. Dickson, supra. We deem it sufficient to announce our belief that that decision was never intended to preclude our police and fire personnel from taking appropriate measures to protect the public's safety, or designed to "overrule" those many decisions, published and nonpublished, that have approved similar emergency operations. (See, e.g., People v. Superior Court (Cope) (1980) 103 Cal.App.3d 186, 162 Cal.Rptr. 667; People v. Scheib (1979) 98 Cal.App.3d 820, 828, 159 Cal.Rptr. 665; People v. Patterson (1979) 94 Cal.App.3d 456, 156 Cal.Rptr. 518; People v. Remiro (1979) 89 Cal.App.3d 809, 153 Cal.Rptr. 89; People v. Superior Court (1970) 6 Cal.App.3d 379, 85 Cal.Rptr. 803; and Romero v. Superior Court (1968) 266 Cal.App.2d 714, 72 Cal.Rptr. 430.) We regard it as no more than an extremely careful effort to indicate why its authors had there found facts which led them to conclude that the general rules should be held inapplicable in that unique instance. Indeed, they were at pains to point out that on other "occasions additional circumstances will be present indicating an ether combustion is imminent. When those circumstances arise, officers have a responsibility to immediately take whatever steps are necessary, including an emergency entry of the premises, to prevent an explosion or fire...." (Dickson, supra, 144 Cal.App.3d 1046, 1072 fn. 22, 192 Cal.Rptr. 897.)

The emergency exception to the warrant requirement has long been recognized in this state. In People v. Roberts (1956) 47 Cal.2d 374, 303 P.2d 721, our high court stated, "Necessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose. [Citations.]" ( Id., pp. 377-378, 303 P.2d 721. See also Cleaver v. Superior Court (1979) 24 Cal.3d 297, 302, 155 Cal.Rptr. 559, 594 P.2d 984; People v. Sirhan (1972) 7 Cal.3d 710, 738-739, 102 Cal.Rptr. 385, 497 P.2d 1121; Mincey v. Arizona (1978) 437 U.S. 385, 392-393, 98 S.Ct. 2408, 2413-2414, 57 L.Ed.2d 290; Michigan v. Tyler (1978) 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486.)

In the context of justifying a warrantless entry into a home the emergency situation must be such as to "... requir[e] swift action to prevent imminent danger to life or serious damage to property.... 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." (People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333; People v. Smith (1972) 7 Cal.3d 282, 286, 101 Cal.Rptr. 893, 496 P.2d 1261.)

Applying these principles to the instant case, it is clear that the evidence was abundantly sufficient to support a finding that Villalobos and the other police and fire department personnel involved, honestly and reasonably believed the public's safety was in imminent danger and acted in a manner consistent with the demands of that emergency.

Two Los Angeles County Sheriff's Department officers with expertise in the handling of hazardous materials and drug manufacturing laboratories, particularly those involving the manufacture of PCP and cocaine, ⁷ stressed that the primary danger associated with ethyl ether anhydrous is flammability....