PEOPLE v. REED

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Court of Appeal, First District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Stephen REED, Defendant and Appellant.

A022095.

Decided: September 07, 1984

J. Tony Serra, Serra, Perelson, Metcalf & Murcko, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Ronald E. Niver, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

John Stephen Reed was charged with possession, possession for sale, and sale of methamphetamine;  possession of psilocybin;  and possession of concentrated cannabis.   Reed pleaded not guilty.   He moved to suppress evidence pursuant to Penal Code section 1538.5, and to set aside the information pursuant to Penal Code section 995.   The motions were heard and denied.   Reed thereupon withdrew his pleas of not guilty and pleaded guilty to two counts of selling methamphetamine and one count of possession of psilocybin.   The remaining charges were dismissed.   Imposition of sentence was suspended, and appellant was placed on probation for three years conditioned on confinement in county jail for six months.   We affirm.

On February 24, 1982, Officer Barry Brodd of the Santa Rosa Police Department, working as an undercover narcotics investigator with the Marin County Major Crimes Task Force, met with Robert Adams and a confidential informant in San Rafael.   The three drove in Brodd's unmarked, undercover vehicle to the intersection of Juanita and Hilarita in Mill Valley, where Brodd negotiated the purchase of two grams of methamphetamine for $180.   Brodd gave Adams $180 in prerecorded county funds.   Adams told Brodd he would be back in a minute or two, and walked north on Hilarita.   Ten minutes later, Adams returned, told Brodd that his “connection” was not at home, and suggested that they wait a few minutes to see if he would return.   Adams told Brodd to watch for a blue Volkswagen belonging to his connection.   After they waited about ten minutes, Adams walked up to the connection's house a second time.   On his return to the car, he suggested that they leave since his connection was not at home.   As they drove away, Adams pointed out the house at No. 80 Hilarita and identified it as the residence of his connection.

While still in the same vicinity, Officer Brodd noticed a blue Volkswagen.   Adams said the car belonged to his connection, and he identified the driver as his connection.   At Adams' suggestion, Brodd honked his car horn to get the attention of the driver of the blue Volkswagen.   The driver, identified as appellant, pulled his vehicle into a shopping center lot and parked.   Adams and appellant got out of their respective vehicles and talked for about ten minutes.   Adams returned and directed Brodd to follow appellant back to Hilarita.   When they arrived, Brodd parked his vehicle a few houses away from No. 80 Hilarita while Adams got out and walked up the driveway.   Five or ten minutes later, Adams returned, got into the car and told Brodd to drive away.   As they did so, Adams handed Brodd two plastic bags of methamphetamine.   Brodd drove Adams back to San Rafael, and Adams gave Brodd his home telephone number.

Officer Brodd had made a note of the license plate number of the blue Volkswagen he had seen appellant driving.   The next day, February 25, 1982, after running a Department of Motor Vehicles check, he ascertained that the car was registered to John Stephen Reed, residing at 80 Hilarita in Mill Valley.   Brodd recognized the photograph on the driver's license as the person he had seen driving the blue Volkswagen.   Throughout the time Brodd was with Adams on February 24, 1982, Brodd had been wired with a radio transmitter, and other police officers participating in the subject investigation had been in the immediate vicinity with a radio receiver listening to Brodd's conversations.

Over the following week, Officer Brodd made numerous attempts to contact Adams to arrange another purchase of methamphetamine.   Officer Rick Wiley testified that he carried out surveillance on the residence at 80 Hilarita sometime during this week.   No attempt was made, however, to apply for a search warrant to search the premises at 80 Hilarita or to arrest appellant.

On March 4, 1982, Brodd contacted Adams and arranged to pick him up at his residence in San Rafael.   Together, they drove to the intersection of Juanita and Hilarita in Mill Valley.   Brodd gave Adams $180 in prerecorded cash funds for the purchase of two grams of methamphetamine.   Adams walked toward 80 Hilarita and returned 10 to 15 minutes later with two grams of the drug.   Officer Wiley, who was conducting surveillance at the time, observed Adams come out of 80 Hilarita and walked back to Brodd's car.   As Officer Brodd was driving away, he pulled to the side of Juanita, identified himself, and arrested Adams.   Adams was immediately taken to the police station in a police vehicle.

At approximately 1 p.m., within two or three minutes of arresting Adams, Brodd walked up to 80 Hilarita.   As he approached the residence, Brodd observed Officers Keaton, Mattos and Wiley walking towards the house.   Two other officers, Sisk and Williams, were in the vicinity by prearrangement.   Brodd entered the house and saw appellant seated in the living room with Sergeant Keaton.   Brodd testified that Officers Mattos and Wiley were also “in contact” with appellant “on the outskirts of the premises” when Brodd arrived.   Officer Wiley testified that when he entered the premises he saw Officers Sisk and Keaton there.

Officer Brodd advised appellant of his Miranda rights, placed him under arrest, and asked his consent to search the premises.   Appellant refused to give his consent or to make any statement.   He was taken to the police station.   After about four minutes, Brodd left to obtain a search warrant.   He testified that one officer was left in the house when he went to get the warrant and three were in the vicinity.   At approximately 4 p.m., after obtaining a search warrant, Brodd returned to 80 Hilarita, three hours after the initial entry at 1 p.m.   On direct examination, Brodd testified that no one was on the premises when he arrived with the search warrant, and that he was accompanied by Officers Wiley, Keaton, Mattos, Williams and Sisk when he served the warrant.   On cross-examination, Brodd stated that Officer Wiley was on the premises, and that only he and Wiley commenced the search.   Brodd's affidavit in support of the warrant stated that “Officers from the task force are presently at the premises to be searched.” 1  The search disclosed quantities of methamphetamine, psilocybin mushrooms, concentrated cannabis, and envelopes containing a total of $2,100 in cash.

Appellant argues that the warrantless entry of appellant's residence was unreasonable and unjustified by any exigent circumstances, that the arrest of appellant and seizure of his residence were therefore unlawful, and that the subsequent obtaining of a search warrant did not retroactively legitimize or “disinfect” the initial unlawful entry, arrest and seizure.

In People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, the Supreme Court held that “warrantless arrests within the home are per se unreasonable in the absence of exigent circumstances.”  (Id., at p. 276, 127 Cal.Rptr. 629, P.2d 1333.)   This holding was cited and followed by the United States Supreme Court in Payton v. New York (1980) 445 U.S. 573, 575–576, 590, 100 S.Ct. 1371, 1374–1375, 1382, 63 L.Ed.2d 639, which made it clear that the warrant requirement applies to any unconsented physical entry of a residence.   Although the court in Payton did not decide what sort of emergency or “exigent” circumstances would justify a warrantless entry into a home for the purpose of arrest or search (id., at p. 583, 100 S.Ct. at p. 1378), the Supreme Court of this state has defined the requisite “exigent circumstances” as “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.”  (People v. Ramey, supra, 16 Cal.3d at p. 276, 127 Cal.Rptr. 629, 545 P.2d 1333.)

 The judge at the hearing on appellant's motion to suppress determined that there was “a reasonable inference” that Adams, once arrested, would attempt to get word to appellant that he was in trouble.   On that basis, he found sufficiently “exigent circumstances” to legitimize the warrantless entry and arrest.   However, the prosecution presented no witness who actually participated in or observed the initial entry of appellant's residence, and no evidence that any officer subjectively believed that exigent circumstances necessitated the warrantless entry.   In view of the fact that there was absolutely no evidence or testimony in the record to support this “inference,” we cannot agree with the court below on this point.   Moreover, even if we were to find that the arrest of the intermediary (Adams) and his transportation to the police station created an imminent danger of destruction of evidence by his confederate (appellant), and hence a plausibly “exigent” situation, this would not legitimate the warrantless entry here.   The police had ample opportunity to obtain either a search warrant or an arrest warrant prior to March 4, the date of appellant's arrest.   The “emergency” in this case was an entirely foreseeable result of the officers' own unjustified failure to obtain a warrant earlier.  (Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 540–541, 106 Cal.Rptr. 452.) 2

Conceding that the record is silent on the circumstances of the initial entry of appellant's house, respondent does not seriously attempt to argue that there were exigent circumstances justifying the warrantless entry in this case.   Instead, the People argue that the evidence seized as a result of the later search warrant should not be suppressed because “there is no causal connection between appellant's arrest and the search warrant.”

 Respondent's argument has recently been validated by the United States Supreme Court in Segura v. United States (1984) 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599, a case factually indistinguishable from this in any relevant respect.   The federal high court held that evidence seized pursuant to a valid search warrant is not subject to suppression where the warrant is obtained after an illegal initial entry of a residence and “securing” thereof by officers, as long as the warrant was secured on the basis of information coming from sources wholly unconnected with the illegal entry and known to the officers prior thereto.   This information constitutes an “independent source” for the warrant, rendering the illegality of the initial entry irrelevant to the admissibility of the evidence obtained on the basis of the warrant.   The valid search warrant constitutes “a ‘means sufficiently distinguishable’ to purge the evidence of any ‘taint’ arising from the entry.   [Citation.]”  (Id., at p. ––––, 104 S.Ct. at 3391, fn omitted.)   In the instant case, as in Segura, the validity of the warrant is not in dispute.   Neither is there any contention that the warrant here was obtained on the basis of information gained as a result of the illegal entry.   To the contrary, the police in this case had more than ample evidence prior to the entry upon which to secure a valid warrant.

Appellant contends that the question of whether there was a causal nexus between the illegal entry and the seizure of the evidence pursuant to warrant is “superfluous,” because the warrantless entry, arrest of appellant, and securing of the residence constituted a “seizure” of the person and property of appellant which was itself illegal.   Citing People v. Shuey (1975) 13 Cal.3d 835, 850, 120 Cal.Rptr. 83, 533 P.2d 211, appellant asserts that because of the illegality of this de facto, inchoate seizure, “the obtaining of the warrant could no more operate ‘to disinfect this conduct’ [citation] than if the police had actually seized the individual items sought to be suppressed prior to acquisition of the warrant.”  (Ibid., fn omitted.)   The cited language in People v. Shuey, however, was not necessary to the decision and constituted obiter dictum not controlling in this case or binding on this court.  (See Hollister Convalescent Hosp. v. Rico (1975) 15 Cal.3d 660, 668–675, 125 Cal.Rptr. 757, 542 P.2d 1349.)   In view of the recent decision of the United States Supreme Court squarely addressing this precise issue, we decline to apply the language of People v. Shuey to the facts before us.

The judgment of conviction is affirmed.

FOOTNOTES

1.   Respondent asserts that the officers vacated the premises after arresting appellant.   The evidence in the record, however, is conflicting and confusing on this factual question, and there were no findings below on this issue.

2.   The record, consisting entirely of the testimony of the police officers involved, shows that they knew the exact address where Adams' “connection” resided on February 24, eight days before the warrantless entry of that residence.   On February 25, a full week before appellant's warrantless arrest, the police already knew appellant's full name and had identified him both as the resident of the house from which Adams had obtained the drugs and as the individual Adams had called his “connection.”   Despite this, no attempt was made to obtain a search or arrest warrant.   No explanation for this failure was given by the police officers involved at the hearing on the suppression motion, and the record is devoid of any basis for assuming, as respondent would have us do, that the police had “legitimate investigative reasons” for failing to obtain a warrant.   Clearly, they had no more probable cause to enter and search 80 Hilarita on March 4 than they did at any point during the preceding week.   The arrest of Adams and subsequent warrantless entry of appellant's house was a classic case of “do-it-yourself” exigent circumstances of the police's own making.  (Shuey v. Superior Court, supra, 30 Cal.App.3d at pp. 540–541, 106 Cal.Rptr. 452.)

SCOTT, Acting Presiding Justice.

BARRY–DEAL and ANDERSON, JJ., concur.

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