PEOPLE v. SHUEY

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

The PEOPLE of the State of California, Plaintiff and Appellant, v. Paul Thomas SHUEY and Vicki Shuey, Defendants and Respondents.*

Cr. 24389.

Decided: September 24, 1974

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:

‘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.)’ (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 writ2 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:

‘. . . I think that I have got to state to the Court that we are dealing here almost with the matter of a first impression issue that has never really been squarely decided by the Appellate Court. I tried to research this issue today and in the process of so doing, I discovered of course, a case, B-a-r-a-j-a-s, Barajas v. Superior Court, cited at 10 Cal.App.3d, at Page 185, 88 Cal.Rptr. 730.’ (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: ‘That is pretty much the issue that is mentioned here, which they then went on to decide Barajas on other issues, but they go on to mention that the issue was present in that particular case. This was a 995 motion and they went on to decide the case on different grounds.’

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, supra, page 539, 106 Cal.Rptr. 452.) The appellate court reached conclusion No. 1 (on the warrant) because ‘its validity was not attacked at the 1538.5 hearing.’ That was correct. The court reached conclusion No. 2 (on the lack of probable cause to arrest) because ‘the People . . . disavowed any claim that there was a right to make an arrest.’ We believe the second conclusion was incorrect. The reason given for reaching conclusion No. 2 was based on a mistaken belief as to the People's position, occasioned in no small measure by the remarks of People's counsel as indicated above.

Since the issue of the presence of probable cause to arrest was ‘not before’ the appellate court, there was no decision on it as an issue. It was treated similarly to an assumed fact on which there was no question or dispute. We explain this because we do not intend or presume to reconsider issues squarely before this court upon the previous application for the writ and previously decided. We hold here only that the trial court at the second hearing was in error in foreclosing further inquiry into the area of probable cause to arrest. It was not limited to allowing inquiry only into the one issue on which the defendant was asked questions. We believe that the presentation by the People upon defendants' prior application for the writ led the appellate court to conclude incorrectly that the People claimed no probable cause for arrest. It would compound that mistake to foreclose inquiry at the hearing of the 1538.5 motion on the issue of probable cause to arrest.

The decision of Shuey, supra, does not under the rule of the law of the case compel us to affirm the judgment of dismissal. Defendants' argument that the present appeal is governed by the decision in Shuey is not persuasive. Firstly, we have attempted to explain that a part of the discussion in Shuey is a mistaken impression left with the court as to the facts. As to that part our holding and opinion here we believe can be read compatibly with the holding of Shuey.3 Secondly, the language of People v. Medina, 6 Cal.3d 484, 492, 99 Cal.Rptr. 630, 635, 492 P.2d 686, 691, is applicable here.

‘. . . In determining whether the law of the case will control the decision on the subsequent appeal, however, the appellate court should keep in mind that ‘the doctrine of the law of the case, which is merely a rule of procedure and does not go to the power of the court, has been recognized as being harsh, and it will not be adhered to where its application will result in an unjust decision.’ (DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 179 [18 Cal.Rptr. 369, 375, 367 P.2d 865].) ‘In view of the express language of section 1538.5, application of the doctrine of res judicata to give conclusive effect on appeal from a judgment of conviction to an appellate court's earlier decision denying defendant's application for a pretrial writ would be inappropriate even when the denial of the writ is by an opinion demonstrating adjudication of the merits. The statute permits the defendant to seek further review of the validity of the challenged search on appeal from a judgment of conviction, a concept totally at variance with application of the doctrine of res judicata.’ (People v. Medina, supra, 6 Cal.3d 484, 492, 99 Cal.Rptr. 630, 635, 492 P.2d 686, 691.)

Although Medina involved an appeal by a defendant, the rule there announced is no less applicable to an appeal made by the People. The People also have been given the same right to appeal the decision on the challenged search. (Pen.Code, § 1238(a)(7).)

In addition to Shuey, supra, defendants rely upon Lorenzana v. Superior Court, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33. Lorenzana is distinguishable in that the People there were arguing that the case should be remanded to the trial court so that the People could argue a new theory. The court in answer stated: ‘Such a result, however, would negate the purpose for which Penal Code section 1538.5 establishes the pretrial suppression hearing; namely, to avoid the continued relitigation of the question of the admissibility of evidence.’ (Page 640, 108 Cal.Rptr. page 595, 511 P.2d page 43.)

‘. . . If the People had other theories to support their contention that the evidence was not the product of illegal police conduct, the proper place to argue those theories was on the trial level at the suppression hearing. The People offered no such argument at that hearing and may not do so for the first time on appeal.’ (Emphasis added.) (Lorenzana v. Superior Court, supra, 9 Cal.3d at p. 640, 108 Cal.Rptr. at p. 595, 511 P.2d at p. 43.)

Here the trial court understandably but erroneously believed that it was limited by reason of the language in Shuey, supra, concerning the disavowal. The matter was in fact returned to the trial court for further hearing; therefore, the argument of avoiding relitigation is inapplicable. Further, the People not only expressly attempted clearly at the second hearing (on which this appeal is taken) to ‘reopen’ the issue of probable cause to arrest, but the theory was not a new theory barred by Lorenzana v. Superior Court, supra, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 43.

In Giordenello v. United States, 357 U.S. 480, 487–488, 78 S.Ct. 1245, 1250–1251, 2 L.Ed.2d 1503, and People v. Hamilton, 71 Cal.2d 176, 182, 77 Cal.Rptr. 785, 454 P.2d 681, the reviewing courts considered and rejected a theory raised by the People for the first time on appeal. However, on remand they directed that the trial court may hear evidence upon this theory. In Giordenello, the United States Supreme Court stated at page 488 of 357 U.S., at page 1251 of 78 S.Ct.:

‘This is not to say, however, that in the event of a new trial the Government may not seek to justify petitioner's arrest without relying on the warrant.’

In People v. Hamilton, supra, 71 Cal.2d 176, at page 182, 77 Cal.Rptr. 785, at page 789, 454 P.2d 681, at page 685, the California Supreme Court stated:

‘. . . Upon retrial the People are free to seek to justify defendants' arrest and the incidental search without relying on the warrant.’

No such opportunity has been afforded the People herein because the trial court held that even though it stated that it was of the opinion that there was probable cause to arrest, the search and seizure would still have been found illegal in light of the court's decision in Shuey v. Superior Court, supra, 30 Cal.App.3d 535, 106 Cal.Rptr. 452.

In view of the possibility that additional evidence and facts concerning probable cause to arrest may be presented and developed at the hearing, we deem it inappropriate at this time to discuss or decide whether there was or was not an arrest, of merely a detention, and if merely the latter, whether such detention was valid or invalid and whether or not the detention is or is not controlled by the holding of cases such as Barajas v. Superior Court, supra, 10 Cal.App.3d 185, 88 Cal.Rptr. 730, and People v. Maddox, 46 Cal.2d 301, 294 P.2d 6.

The judgment of dismissal is reversed and the cause remanded to the trial court. The trial court is directed to vacate its order suppressing the evidence and to rehear the motion under Penal Code section 1538.5 and to consider the issue of causation as directed by this court in Shuey v. Superior Court, supra, 30 Cal.App.3d 535, 106 Cal.Rptr. 452, and also to consider the issue of whether there existed probable cause to arrest the defendants or either of them at the time of the entry into defendants' home and to permit the parties to present evidence thereon.

FOOTNOTES

1.  Our recital is a short summary. The facts are more fully set forth in Shuey v. Superior Court, 30 Cal.App.3d 535, 537–538, 106 Cal.Rptr. 452.

2.  Counsel have informed us at bench that there was no stipulation (of lack of probable cause to arrest) made at the time of oral argument on the application for the writ.

3.  If it develops upon rehearing that there was no probable cause for arrest, then there was no right of the officers to be in defendants' home. If that illegal presence is the causative factor of finding the contraband, then under the current status of the exclusionary rule suppression was the proper order.

BEACH, Associate Justice.

FLEMING, Acting P. J., and COMPTON, J., concur.