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PEOPLE v. PALESE

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Gary E. PALESE, Defendant and Appellant.

Cr. 33470.

Decided: August 02, 1979

Peter L. Knecht, Los Angeles, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Roger W. Boren and Ellen Birnbaum Kehr, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was charged with:  (count I) possession of cocaine for sale, in violation of subdivision (a) of section 11351 of the Health and Safety Code;  (count II) possession of marijuana for sale, in violation of section 11359 of that code;  (count III) possession of a tear gas weapon, in violation of section 12420 of the Penal Code.   After his motions under sections 995 and 1538.5 of the Penal Code were denied, he pled guilty to count I;  counts II and III were dismissed.   He was granted probation;  he has appealed;  we reverse.

A deputy sheriff received information from an informant who, he was told by other officers, was a reliable informant, that the informant's girl friend was dealing in narcotics, that the girl had told him she received her supply from defendant who operated out of a boat moored at a described slip in the marina, and that the informant had escorted the girl to dockside on an occasion where she told him she had received narcotics from defendant.   The informant also told the deputy that the girl had told him that defendant had recently received a shipment of narcotics and that the girl would go to the boat at about 8:15 that evening to secure a supply.   Acting on that information, the deputy contacted a customs officer who, after some investigation of the boat, which indicated that it had come to Los Angeles from New York but had not checked with customs on arrival, agreed to cooperate with the deputy.

At about 7:00 p. m., several customs officers and deputy sheriffs approached the vessel.   They hailed the vessel, without knocking on the hull.   Receiving no response, but hearing sounds of music coming from the vessel, they boarded it.   As they crossed the deck, Ms. Buchanan appeared;  they asked her for the master and defendant answered.   The customs officer requested the vessel's documents, was told that they were in a cabin, and followed defendant into the cabin, where the documents were produced.   On entering the cabin, defendant volunteered the information that he had a pistol under a pillow and it was seized.   After examining the documents, the customs officer inquired why the vessel had not cleared customs and defendant indicated that it had come to Los Angeles as cargo on a much larger vessel.   When defendant opened the drawer in which he kept the documents, the deputy saw a film canister with a needle in it.   Believing that the canister contained hashish oil, the deputy opened it and verified his suspicion to his personal satisfaction.   On inquiry, defendant told the officers that he had a rifle in a closet.   The officers opened the closet, seized the rifle and also seized a brown paper bag, which, being opened, was found to contain marijuana.   Defendant was then arrested by the deputy sheriff, asked to consent to a further search of the vessel and agreed.   The additional search disclosed additional narcotics.

I

It is the preliminary contention of the People that the deputy sheriffs were present merely to assist the customs officer;  that the customs officer was entitled to board the vessel, without warrant, under 19 U.S.C. § 1581;  and that when the inspection by the customs officers disclosed the presence of narcotics, they were entitled to seize them under the “plain sight” rule.

That that theory is unsound is clear from the record.   As everyone involved knew, the vessel involved had been docked in the marina for at least seven months.   There was no suggestion that she was about to depart.   There was no necessity, for the purpose of checking on the customs clearance, for an unnoticed boarding, in the evening, admittedly after normal hours and without opportunity to make a real investigation of the vessel's status.   Any action against the vessel or its master or failing to clear customs when it arrived months before could have awaited a more formal check the following morning.   The customs clearance idea was, without question, merely an excuse to provide an opportunity for a narcotic search of the vessel.1

 But the law of California long has held unlawful entries obtained by ruse or deceit.   The customs agents and the deputy sheriffs led defendant to admit them to his cabin under the belief that they sought only to examine his documents, not to search for narcotics.   That entry was as illegal as were the deceitful entries denounced in People v. Reeves (1964) 61 Cal.2d 268, 38 Cal.Rptr. 1, 391 P.2d 393;  People v. Miller (1967) 248 Cal.App.2d 731, 56 Cal.Rptr. 865, and People v. Superior Court (Kenner) (1977) 73 Cal.App.3d 65, 139 Cal.Rptr. 343.

II

Alternatively, the People seek to sustain the search and seizure as justified by the information that the deputies had received from their informant.

 (a) Admittedly, the vessel was the home of defendant and of Ms. Buchanan, his companion.   It has been settled since People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, that a warrantless entry into a home is illegal unless justified by some emergency such as the need to afford immediate aid to a person in danger or to follow a suspect in fresh pursuit.   Neither of those “emergencies” were here present.   Although research by counsel and by ourselves has disclosed no cases dealing with a vessel as a home under the Ramey rule, we conclude that it is here applicable.2  The Attorney General here argues that a vessel is, like an automobile or a van, mobile and therefore searchable without a warrant under familiar doctrine.   While that theory may have validity in the case of a vessel under way or about to depart, we conclude that this vessel was not “mobile” within the doctrine relied upon.   It had been moored in the same slip for several months;  nothing in the information given to the officers or observable by them as they approached the vessel suggested that it was not going to remain so moored for the predictable future.   This vessel, at the time involved, was in danger of being moved;  no justification for entry by the deputy sheriff existed.   The officers were unlawfully on the vessel;  everything thereafter discovered was the fruit of that illegal entry.

(b) The officers had no probable cause for any entry.   The deputy sheriff admitted that he did not have enough information to secure a warrant.   He had only the hearsay information, admittedly motivated by the informant's desire to wreck revenge on his girl friend, that the girl (totally untested) had told him that defendant had had, and would have, narcotics on board the vessel.   The informant neither spoke of his own knowledge nor was he corroborated in any way.

The entire entry and search was illegal;  the 1538.5 motion should have been granted.

The judgment (order granting probation) is reversed, with directions to dismiss the information.

FOOTNOTES

1.   It must be noted that, in arguing in support of the warrantless entry onto the vessel, the Attorney General contends that such entry was justified because of an emergency—to wit, that the officers had reason to believe that the narcotics would have been delivered to the girl friend at about 8:15 and therefore undiscoverable by a search the following morning.   The People have, by that argument, themselves shown that the use of the customs officer to obtain entry was a mere ruse to accomplish the narcotics search.

2.   The Attorney General argues that the Ramey issue is not properly before us because not raised in the trial court.   The record shows that the 1538.5 motion was made in general terms, based on the preliminary transcript and that the trial court, stating that it had read that transcript, cut off an attempt by counsel to be specific in his contention.   Under those circumstances, we conclude defendant is here entitled to rely on any illegality that the preliminary transcript shows.

KINGSLEY, Acting Presiding Justice.

JEFFERSON and ALARCON, JJ., concur.

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