People v. Shuey
| Citation | 115 Cal.Rptr. 447,42 Cal.App.3d 18 |
| Decision Date | 24 September 1974 |
| Docket Number | Cr. 24389 |
| Court | California Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Appellant, v. Paul Thomas SHUEY and Vicki Shuey, Defendants and Respondents. |
Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Head, Appellate Div., Los Angeles, and Daniel L. Bershin, Deputy Dist. Atty., for plaintiff and appellant.
Marshall K. Gordon, Woodland Hills, under appointment by the Court of Appeal, for defendants and respondents.
The People appeal from an order of dismissal entered on the court's own motion pursuant to section 1385 of the Penal Code following the granting of defendants' motion to suppress pursuant to Penal Code section 1538.5.
FACTS:
Police, having been informed five days previously that 'Paul' and his wife, at defendants' address, had marijuana at their apartment, went to the indicated address. They did not have a search warrant. Officer Fisk introduced himself to defendant Paul Shuey and stated he was conducting a narcotics investigation and had information there was marijuana at the location. He asked Paul's consent to search. Paul would not converse or consent. Officers then entered to 'secure' the premises while Fisk went to obtain a warrant. The two who remained watched Paul and his attorney, whom Paul was allowed to call, play chess for three hours. When Fisk returned with the search warrant, a search was conducted and contraband was discovered somewhere in the living room and in the kitchen. Paul was then placed under arrest. Paul's wife Vicki was later arrested. 1
In the subsequent prosecution for violation of sections 11530, 11530.5 and 11910 of the Health and Safety Code, the trial court denied defendants' motion to suppress the evidence. Defendants then sought a writ of mandate to suppress from the Court of Appeal. In Shuey v. Superior Court, supra, 30 Cal.App.3d 535, 106 Cal.Rptr. 452, the court held that the police conduct was illegal, granted the writ, and remanded the case to the trial court with directions. The appellate court stated that a fact question remained: Whether the evidence sought to be suppressed was factually the fruit of the illegality. The court further declared that if Paul, having been left alone, would have destroyed the contraband (i. e., but for the illegal conduct of the police the narcotics would have been destroyed), the evidence was the fruit of the illegality. (See Shuey, supra, at pages 544-545, 106 Cal.Rptr. 452.) The court discussed possible testimony by the defendants and by the People and directed 'the trial court to reconsider its ruling on the motion to suppress in the light of this opinion on the applicable law and any additional evidence on the issue of causation which the parties may care to present.' (Page 545, 106 Cal.Rptr. page 458.)
Upon return of the case, the trial court reheard defendants' motion to suppress under Penal Code section 1538.5. At the second hearing, the trial court denied the People's motion to 'reopen' the issue as to probable cause to arrest at the time the police arrived at the door.
Defendant Paul Shuey then testified that alerted, he would have disposed of the evidence had the police not remained in his apartment. The People neither cross-examined him nor offered any testimony.
The 1538.5 motion was granted and the action was dismissed under section 1385 of the Penal Code.
CONTENTIONS:
The People contend that the trial court at the second hearing erred in denying the People the opportunity to present evidence of probable cause to arrest as a basis upon which to establish the legality of the search and seizure.
DISCUSSION:
We agree with the People and we reverse.
The decision of Shuey v. Superior Court, supra, 30 Cal.App.3d 535, 106 Cal.Rptr. 452, does not prohibit the consideration of evidence relating to probable cause for arrest. Defendants claim that the trial court was limited in reconsidering its ruling on the 1538.5 motion to the sole question of: But for the police entering and remaining in Shuey's home, would the search have been fruitless? (30 Cal.App.3d at p. 542, 106 Cal.Rptr. 452.) Defendants base their claim upon the following language in Shuey, supra:
(Page 539, 106 Cal.Rptr. page 454.)
We do not read Shuey v. Superior Court, supra, 30 Cal.App.3d 535, 106 Cal.Rptr. 452, 454, as a limitation on the scope of the new hearing of the 1538.5 suppress motion. Initially, the statement in the opinion that 'the People expressly disavowed any claim that there was a right to make an arrest of Paul before the contraband was actually found' and the reference to such a claim as 'a theory which the People expressly discarded' (Shuey, supra, at p. 539, 106 Cal.Rptr. at p. 454) are without support in the record. The People's imprecise factual and procedural presentation in the trial court and perpetuated upon the application for the writ 2 undoubtedly led the appellate court to assume that the People had abandoned any effort to justify the search on a lawful arrest and the existence of probable cause therefor. This assumption and the confusion was probably caused when, after the testimony presented at the first hearing, counsel for the People in argument attempted to characterize the issue as like that in Barajas v. Superior Court, 10 Cal.App.3d 185, 88 Cal.Rptr. 730. Counsel for the People in argument said:
(Counsel then quotes from Barajas correctly as follows:)
'[W]e thought that we were squarely presented with a problem involving Fourth Amendment Law, which to the best of our knowledge had never been decided: whether police, who have probable cause to believe that a residence contains contraband, but have neither a search warrant, nor probable cause to arrest anyone in the home, may force entry for the sole purpose of preventing the disposal of the contraband while other officers obtain a warrant.' (Page 189, 88 Cal.Rptr. page 732.)
Counsel then made the following rather vague and ambiguous statement:
This totally unhelpful statement by the People does not clearly tell us whether the People represented the instant case as one like the case described in the quoted portion of Barajas, with no probable cause to arrest prior to search, or as one like that which Barajas itself was found to be, a case with probable cause to arrest prior to search.
However, we have read the entire record and transcript of the first hearing and we find no express disavowal of such claim or theory. There is no stipulation that can be so construed. There is no statement or act from which such an intended disavowal can be implied. It was the defendants, not the People, who expressly claimed that there was no probable cause for arrest. But there was and is no agreement or acquiescence by the People with this claim of defendants. Although not well or strongly argued, we believe that the People were in fact trying to preserve such a theory in the first hearing. In examining witnesses and also in discussing the purpose of the testimony being elicited, both counsel several times stated that it was for the purpose of proving or disproving the existence of 'probable cause.' The expressions by both counsel 'this is for probable cause' or the question 'Is this for probable cause?' appear more than once in precisely that form without explaining to what the particular 'probable cause' refers. There was no traverse of the search warrant; hence, counsel obviously did not intend to refer to the existence of probable cause to obtain the search warrant because such was not an issue.
The Court of Appeal did not hold that the facts presented to it in Shuey v. Superior Court, supra, 30 Cal.App.3d 535, 106 Cal.Rptr. 452, did not constitute probable cause for arrest. It simply stated that such theory or basis had been expressly disavowed and discarded by the People. Such alleged disavowal therefore prevented the court from basing its decision on such theory. (Shuey, supra, page 538, 106 Cal.Rptr. 452.) The sufficiency of the facts to constitute probable cause for arrest has not been tested on appeal. From its ruling it is reasonable to infer that at the first hearing the trial court was of the opinion that there was probable cause for arrest. However, such inferential ruling was never tested. The decision in Shuey, supra, on the application for the writ did not compel the trial court at the second hearing to eliminate the issue. There was on that issue no appellate review and decision. The court stated that there were two issues which were not before it. They were (1) the validity of the search warrant, and (2) the existence of probable cause to arrest. (Shuey, ...
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People v. Shuey
...(Pen.Code, § 1238, subd. (a)(7)), and the case was heard by a different division of the Court of Appeal. In People v. Shuey (1974), 42 Cal.App.3d 18, 115 Cal.Rptr. 447 (Shuey II) that division held that the trial court erroneously interpreted Shuey I as foreclosing the People from relying o......