Shuey v. Superior Court

• Decision Date: 14 February 1973
• Court: California Court of Appeals Court of Appeals
• Parties: Paul Thomas SHUEY and Vickie Shuey, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 40967.

Page 452

106 Cal.Rptr. 452

30 Cal.App.3d 535

Paul Thomas SHUEY and Vickie Shuey, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent;

PEOPLE of the State of California, Real Party in Interest.

Civ. 40967.

Court of Appeal, Second District, Division 5, California.

Feb. 14, 1973.

Rehearing Denied March 2, 1973.

Hearing Denied April 12, 1973.

[30 Cal.App.3d 537] Edward L. Lacy, for petitioners.

No appearance for respondent.

Joseph P. Busch, Jr., Dist. Atty., Harry Wood, Head, Appellate Division, Harry B. Sondheim and Daniel L. Bershin, Deputy Dist. Attys., Los Angeles, for real party in interest.

KAUS, Presiding Justice.

Petitioners Paul Thomas Shuey ('Paul') and Vickie Shuey ('Vickie') pray for a writ of mandate to order the respondent court to suppress evidence secured in the execution of a search warrant. In that court they are charged, by information, with violations of sections 11530, 11530.5 and 11910 of the Health and Safety Code. On August 22, 1972, the court denied their motion to suppress a certain quantity of marijuana and amphetamines which were secured during a search of their residence on December 27, 1971.

FACTS

On December 22, 1971, Officer Fisk of the Los Angeles Police Department was told by an unnamed confidential informer that an individual named Paul, who answered a certain description, lived with his wife whose name was unknown to the informer, at 7237 Variel in Canoga Park. Within 96 hours before imparting this information to Fisk, the informer had seen five 'lids' of marijuana in Paul's apartment at that address. As far as Fisk was concerned the informer was reliable because Sergeant Holcomb, a federal narcotics officer, had told him so. Holcomb's opinion that the informer was reliable was based on the fact that he had been of assistance in investigating cases against 15 persons suspected of involvement with cocaine. None of these had been arrested, but they were 'awaiting' grand jury indictment.

Five days later, on December 27, at 11:00 a.m., Fisk and two other officers went to the Variel address. Paul answered Fisk's knock. ¹ Fisk identified himself as a police officer, stated that he was conducting a narcotics investigation, revealed that he had information that there was marijuana at the location and expressed his desire to discuss the matter with Paul. Fisk also told Paul that he wanted his consent to search the apartment. Paul would neither converse nor consent. When informed that Fisk would attempt to get a search warrant, he told him to go ahead and get it. Fisk said that he would 'secure' The officers then entered uninvited through the open door. They encountered no physical resistance. Fisk left shortly and returned with a warrant more than three hours later. The other two officers remained.

the premises while he obtained the warrant.

Precisely what the ground rules in force during the occupation of Paul's home were, is not too clear. Officer Aliano, one of two who remained, testified that he 'had (Paul) sit down in the living room and myself and Officer Mirousky sat there with them (sic).' The way Aliano saw it, Paul was under detention 'for investigation' but not actually under arrest. ² He was 'allowed' to make telephone calls. He reached his attorney who came to the apartment and 'requested' to confer with his client. This he was permitted to do, but only where the officer 'could still see them.' The attorney and Paul then played chess.

No search was conducted while Fisk was away on his errand. Aliano, however, conceived it to be his mission to secure the apartment 'from the inside,' and to prevent the destruction of any evidence by 'actions of the defendant to be warranted.'

In practical effect, then, the officers 'seized' everything in the apartment, and detained Paul's person, hoping that a search warrant would later permit them to particularize the seizure and to arrest Paul.

Fisk returned with a search warrant at about 2:00 p.m. After the ensuing search revealed the contraband in question--it was somewhere in the living room and in the kitchen--Paul was arrested. We do not know when or where Vickie was arrested. The record, however, negatives the possibility that she was in the apartment before the contraband was discovered.

DISCUSSION

Before turning to the issues which are involved in this appeal, we must mention a couple which are not:

1. It is manifestly questionable whether, when they first arrived at the Shuey residence, the officers had enough information to justify the issuance of a warrant. Their conversation with Paul added nothing. (Tompkins v. Superior Court, 59 Cal.2d 65, 67--68, 27 Cal.Rptr. 889, 378 P.2d 113.) The fact is, however, that they did obtain a warrant. Its validity was not attacked at the 1538.5 hearing. We therefore assume it to have been valid.

2. We cannot solve this case by holding, as the People now suggest we should, that the police had probable cause to arrest Paul when they first arrived at his apartment. This would enable us to say, as we did in Barajas v. Superior Court, 10 Cal.App.3d 185, 189--192, 88 Cal.Rptr. 730, that the continued presence of the police in the apartment had nothing to do with the later seizure of the contraband pursuant to the warrant, because Paul cannot make a factual showing that the contraband would not have been there, had the police taken him to the station to be booked. ³

At the time of the motion to suppress, the People expressly disavowed any claim that there was a right to make an arrest of Paul before the contraband was actually found. The same principle which forbids us to reexamine the validity of the warrant, keeps us from basing our decision on a theory which the People expressly discarded. (Giordenello v. United States, 357 U.S. 480, 487--488, 78 S.Ct. 1245, 2 L.Ed.2d 1503; People v. Hamilton, 71 Cal.2d 176, 182, 77 Cal.Rptr. 785, 454 P.2d 681.)

We therefore cannot avoid attempting to solve the tough questions which this record does present. These are: (1) Whether under the circumstances of this case the police acted illegally in occupying petitioners' apartment and detaining Paul, thereby effectively accomplishing an inchoate seizure of any contraband for which the hoped-for warrant would permit them to search; (2) Whether, as a matter of policy, a defendant should be permitted to urge judicial suppression of evidence, where his motion is necessarily based on the proposition that the illegal police conduct merely prevented destruction ⁴ of contraband, so as not to frustrate its seizure pursuant to a valid warrant. Viewing the question differently, it is whether petitioners are estopped to rely on the exclusionary rule; (3) Whether under the facts of this case petitioners proved, as an issue of fact, that but for the allegedly illegal police conduct, the destruction would have taken place.

The Legality of the Police Conduct

The undisputed fact is that the police, without warrant to do so, spent three uninvited hours in petitioners' home and placed considerable restraints on Paul's freedom. The People's attempt to disinfect this conduct is not persuasive.

They first argue that the Fourth Amendment only forbids unreasonable searches and seizures. We agree. They then claim that once Officer Fisk was denied permission to search and had told Paul that he would get a warrant, it was reasonable for him and his fellow officers to believe that Paul would attempt to destroy any contraband on the premises, unless he was kept under observation. That, too, is obviously true. They then say that in view of that exigent circumstance, Fisk's 'only recourse was to place petitioner Paul Shuey under surveillance.' To prove that such 'surveillance' ⁵ was legal they rely on People v. Edgar, 60 Cal.2d 171, 32 Cal.Rptr. 41, 383 P.2d 449.

The very facts of Edgar point up where the investigation in this case went awry.

Edgar, who was in jail awaiting trial, had been overheard by a deputy sheriff, when he told his mother to hide certain photographs which were in their home. When the mother got to the home two officers were already there. They asked her for the pictures. She produced them unwillingly, after being illegally threatened with arrest. The People argued, however, that the threat was immaterial, since there was a right to search for the pictures. They pointed to the necessity which presented itself, namely that the mother would dispose of the evidence if the police left to obtain a warrant. Answering this contention the Supreme Court said that the officers: '. . . could have kept his mother under surveillance, and forewarned of what Edgar wished her to do, they were confronted with no substantial risk that she would succeed in putting the pictures beyond their reach before a warrant could be obtained.' (People v. Edgar, 60 Cal.2d at pp. 175--176, 32 Cal.Rptr. at p. 44, 383 P.2d at p. 452.)

In Edgar the impetus for the emergency created by the threatened loss of the pictures was Edgar's instruction to his mother. If the police had stopped to obtain a warrant before arriving at the residence, their quest would have been futile. In the case at bar the impetus for the anticipated disposal of the contraband was the fact that the police, after doing nothing for five days, chose to alert Paul when they had no search warrant, instead of dropping by a magistrate's chambers on their way to his home. The record contains no evidence of even a hunch that Paul was more likely to dispose of whatever contraband he had at 11:00 a.m. on December 27, than he had been at any hour since December 22. The emergency was strictly of the 'do-it-yourself' variety. ⁶

We do not intimate what the correct answer should be where the police are faced with an emergency not of their own making. Certainly no court by whose decisions we are bound has ever answered the question and we need not attempt to do so in this proceeding. ⁷

Are Petitioners Estopped to Rely on the...