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

The PEOPLE, Plaintiff and Respondent, v. Richard Raul VILLEGAS, Defendant and Appellant.

Cr. 30978.

Decided: December 11, 1978

Wilbur F. Littlefield, Los Angeles County Public Defender, Dennis A. Fischer, Alan C. Oberstein and G. Keith Wisot, Deputy Public Defenders, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

This appeal follows judgment after a guilty plea of a violation of Health and Safety Code section 11350. The plea followed a denial in part of a motion to suppress pursuant to Penal Code section 1538.5.

The contention on appeal raises the Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 106 Cal.Rptr. 452 versus People v. Freeny (1974) 37 Cal.App.3d 20, 112 Cal.Rptr. 33 issue.

The facts are that Los Angeles Police Officer Langner overheard a conversation placed by an informant. A monitored phone call to defendant was made: “Say, can you do me a couple of spoons?” “Ya, man. I got all the stuff you need.” Langner then participated in checking out information to be included in a search warrant affidavit. Another officer, Barnett, sought to have the warrant issued.

While Officer Barnett sought the warrant issuance, Officer Langner and other officers went to the vicinity of a residence on Courtleigh Drive which was purported to be where defendant lived. The surveillance was to corroborate the informant's information and to provide observation of any narcotics trafficking from that place.

While positioned in a police vehicle at a place where detection would not occur, a man exited from the house and the officers concluded that their surveillance had been discovered.1 The officers picked up the man and took him to the police station. After receiving no information from the man and having no valid reason to hold him, though he had been drinking, he was released.

The police, fearing information re their interest in defendant and the house would be communicated and contraband disposed of, returned to the house. The request for a search warrant was proceeding at the same time. The officers, who had returned to the house, knocked and stated their identity and purpose and were admitted by defendant's brother. The brother was handcuffed and made to remain in the living room. Defendant's mother and sister were also detained, though not cuffed.2

Defendant was staying at his girl friend's house on Washington Boulevard. The police went to that address and “detained” defendant, handcuffed him, transported him to the Courtleigh Drive house and when the search warrant arrived, served it and proceeded to search.

The defense argues that the principle set forth in Shuey v. Superior Court, supra, 30 Cal.App.3d 535, 106 Cal.Rptr. 452 controls. It contends that the emergency requiring securing of the house was self-made by the conduct of the officers. While on hindsight this may appear true, the trier of fact concluded that the actions by the officers were reasonable; we agree.

That the officers reasonably believed that their investigation would be thwarted unless they intercepted the person who had observed them as he left defendant's house cannot be questioned. Once this occurred the officers were left with no choice of action but to seek consent to enter the house and to secure it if permitted to enter while awaiting the arrival of the search warrant. It is true that the “securing” time was somewhat extended, the officers being in the house from an hour to an hour and a half before the warrant arrived. The time necessary to obtain the warrant does not appear as a delay caused by the officers. It undoubtedly was traceable to seeking out an issuing magistrate.

Here, as distinguished from Shuey, the warrant was being sought prior to the “securing” of the premises. Here, as distinguished from Shuey, the “securing” officers did not enter the premises “uninvited.” (30 Cal.App.3d at p. 538, 106 Cal.Rptr. 452.) These two distinctions clearly place this case outside the holding of Shuey for we there stated: “We do not intimate what the correct answer should be where the police are faced with an emergency not of their own making.” (Id. 30 Cal.App.3d at p. 541, 106 Cal.Rptr. at p. 456.)

Since Shuey, People v. Freeny, supra, 37 Cal.App.3d 20, 112 Cal.Rptr. 33, 42, has been decided. We follow the analysis of that case where there, as here, “No reasonable man could conclude other than that Mrs. Freeny would destroy evidence of her guilt, [here the son's guilt] … if she [the mother here] learned of [the investigation and search warrant effort] ․” (Id., at p. 32, 112 Cal.Rptr. at p. 42.) The officers took a calculated risk on being admitted to the house consensually.3

It is unnecessary to (and we do not) decide what rules would be applied had their entry been an illegal one (compare Shuey). Certainly there is no possible contention that the house could not have been “secured” by exterior protection. This would not have prevented persons inside the house from destroying evidence once they were informed of the police interest. Absent some fact that the evidence was in fact about to be destroyed however, the officers had no right to make a forced entry. There existed only the likelihood that persons inside the house might be warned and this does not excuse knowledge of an actual emergency. (See People v. Shuey, 13 Cal.3d 835, 856, 120 Cal.Rptr. 83, 533 P.2d 211.) In People v. Freeny (1975) 37 Cal.App.3d 20, 112 Cal.Rptr. 33, there was the actual emergency for Mrs. Freeny had been warned of the police activity and even of her own involvement. Under those circumstances, no invitation to enter was necessary. Here no suggestion of violation of section 844 was necessary for the police lawfully entered the premises via the consent route. Once legally in the house, reasonable precautions to prevent destruction of evidence was well within approved police duty. Under the facts here existing, there was no illegality in the actions of the police and the ultimate arrival of the warrant authorized the search which thereafter took place.

The judgment is affirmed.

I respectfully dissent.

I fully agree with the statement in People v. Freeny (1974) 37 Cal.App.3d 20, 32, 112 Cal.Rptr. 33, 42, that in the case of “an emergency not created by failure of police seasonably to secure a search warrant prior to entry of the premises to be searched. …” the premises may be secured, Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 106 Cal.Rptr. 452, notwithstanding. That, after all, was the import of the dictum in People v. Edgar (1963) 60 Cal.2d 171, 175-176, 32 Cal.Rptr. 41, 383 P.2d 449.

Further, when an emergency justifies the occupation of a residence pending the procurement of a search warrant, consent has nothing to do with the right to enter, although, one would assume, the officers would have to comply with the knock and notice provisions of section 1531 of the Penal Code.

Of course, even if there is no emergency, the police are always free to seek and obtain the consent of the person or persons occupying the premises, provided such persons are fairly informed what they are consenting to. (Nerell v. Superior Court (1971) 20 Cal.App.3d 593, 599, 97 Cal.Rptr. 702, 705, [“To be considered voluntary and effective, a consent to search must be unequivocal, specific and intelligently given. [Citations] Where consent is obtained as a result of coercion or trickery, it is invalid.”] Thus, assuming that the consent to enter the premises in question is not obtained by fraud, it is quite immaterial whether an emergency had, in fact, arisen.

I now turn to the facts of the case. As far as an emergency having arisen is concerned, suffice it to say that no police officer ever testified or hinted that the investigation was “blown” when the “visitor” from the premises stopped and looked at the unmarked car which was parked 450 feet from the house.1 What did create the emergency was that the police decided to “interview” the visitor and “invite” him to the station when he was unable to produce any identification. There, however, the officers realized that they would have to let the person go because they had no grounds to keep him. That, of course, did create an emergency but, in view of the wholly illegal arrest of the “visitor” it was of the “do it yourself variety” condemned in Shuey. As such, it did not permit a forced entry and occupation even with the strictest compliance of the amenities of section 1531 of the Penal Code.

That, of course, leaves consent and if defendant's brother or anyone else on the premises had freely consented, I would agree with the result reached by the majority. As I see it, however, the consent was fraudulently obtained. When David Villegas opened the door, Officer Langner identified himself as a police officer, stated that he was conducting a narcotics investigation and asked whether he could come in. David said “yes, sure.” That consent simply permitted the officers to cross the threshold and perhaps ask a few questions. It did not authorize what happened: the immobilization of the occupants of the house for nearly two hours and the handcuffing of David during that period.2

Thus, there was neither an emergency which would have authorized a non-consensual occupation of the residence, nor consent, honestly obtained. Absent one of those two predicates, the seizure of the residence was illegal and anything found therein has to be suppressed. (People v. Shuey (1975) 13 Cal.3d 835, 850, 120 Cal.Rptr. 83, 533 P.2d 211.)

The majority opinion recognizes that “the officers had no right to make a forced entry …” Thus, I assume, it finds that there was no emergency. Therefore it must, of necessity, rely on David's consent which was as real as that obtained by the wolf from Little Red Ridinghood's grandmother.


1.  The record shows that the man walked to within 10 feet of the police car, stopped and appeared to be looking at the officers. When he walked away, the officers exited their vehicle to talk to the man. From this it is a fair inference that they believed their surveillance had been recognized.

2.  It is difficult to condone the means resorted to by the officers once consensually within the house. An over reaction in the securing activity does not, however, make the legal securing an illegal one.

3.  The dissent seeks to reweigh the evidence to determine whether the entry was with consent; this the appellate court cannot do. The trial court determined the entry was with consent and we cannot say, as a matter of law, it was not.

1.  Thus footnote 1 of the majority opinion infers what no police witness even implied.

2.  Officer Langner testified that David was handcuffed “merely as a safety precaution that neither officers nor innocent people within that residence would get hurt in case emotions were to come into play.”

STEPHENS, Associate Justice.

HASTINGS, J., concurs. KAUS, Presiding Justice, dissenting.