PEOPLE v. MAYER

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jon Paul MAYER, Defendant and Appellant.

A020785.

Decided: July 19, 1984

Rose & Arnold Law Corp., Ronald W. Rose, Mark A. Arnold, Carleen R. Arlidge, San Jose, for defendant and appellant. John K. Van de Kamp, Atty. Gen., State of Cal., Martin S. Kaye, Michael I. Mintz, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Jon Paul Mayer was charged with possession and sale of cocaine.   After the denial of his motion to suppress the evidence, he pled guilty to one count of sale of cocaine.   The possession count was dismissed, and the court granted him three years probation with eleven months in county jail.   Mayer appeals.

On October 12, 1981, San Mateo County Sheriff's Deputy William Cody was working as an undercover agent, posing as a person interested in buying cocaine.   At approximately 7:30 p.m., he went to the residence of Gary Hoag in Redwood City to discuss the purchase of one-quarter pound of cocaine.   Cody showed Hoag $10,000 in prerecorded county funds.   Hoag called “his man” from a phone booth to check on drug availability.   He told Cody that only two ounces were available then, but he could arrange for two more the next morning.   Cody followed Hoag to a parking lot at Homestead and De Anza Boulevard in Santa Clara County.   Hoag told Cody that he would need $1,000 to take to his supplier.   Cody gave him $1,000, and Hoag drove off, returning in 14 to 20 minutes with two ounces of cocaine.   Hoag asked Cody for the balance due of $4,000.   Cody gave a prearranged signal, and other officers closed in and arrested Hoag and appellant Mayer, who was located in a parked car about 100 yards away.   In a subsequent search of appellant's person, Cody found $1,000 in the previously recorded bills.

San Mateo County Deputy Sheriff Gilbert Rodriguez testified that on October 12, 1981, he was assisting in the subject investigation.   At approximately 7:30 p.m., he was participating in surveillance of a residence at 10980 North Sky Square, Cupertino, when he observed Hoag arrive, park his car, and go into the residence.   Ten or fifteen minutes later, Rodriguez saw Hoag leave the residence with another person and drive off in his car.   Rodriguez was not sure whether the second individual drove off with Hoag or not.   Rodriguez followed Hoag's car back to the parking lot where Cody was waiting.   Rodriguez participated in the arrest of appellant, who was sitting in a “blue Camaro” automobile in the same parking lot.

Officer Allan Johnson, a sergeant for the San Mateo County Sheriff's Department and a supervisor in the subject narcotics investigation, was in the parking lot when the arrests took place.   Johnson received information over police radio that a “brown Camaro” had left the 10980 North Sky residence at the same time as Hoag.1  Johnson observed the Camaro pull into the parking lot approximately one car length behind Hoag's vehicle, and saw it park some distance away from Hoag's car in a position which facilitated easy viewing of the transaction between Cody and Hoag.   Johnson testified that from his lengthy experience and background in the field of narcotics investigation, it was obvious to him that in accordance with standard drug trafficking practice, appellant was watching the cocaine transaction in order to prevent loss or theft of the contraband or the money by Hoag, his intermediary.   Johnson directed the arrest of the occupant of the Camaro, identified as appellant.

Immediately after the arrests of Hoag and appellant, Johnson and several other officers went to the premises at 10980 North Sky Square in Cupertino.   Johnson had information that other persons were in the residence at the time.   He approached the front door with Detective Ronald Brooks of the Redwood City Police Department, and knocked.   The door was opened by a woman.   Johnson identified himself, stated that the police were in the process of obtaining a search warrant, and indicated his intent to enter.   He entered the residence, found a man with the woman inside, and allowed them both to leave.   Johnson used the kitchen telephone in the residence to obtain a search warrant.   Authorization for the warrant was given some time after midnight in the early morning hours of October 13, 1981.   Johnson and Cody then executed the search warrant.   Johnson never left the residence from the time he entered until after the warrant had been executed.

Johnson testified that his purpose in securing the residence was to prevent the destruction of evidence until a determination could be made by a magistrate whether or not there was sufficient cause to issue a search warrant, and that he was prepared to secure the premises for as long a time as it took to obtain a warrant.   He testified that, based on his experience in narcotics investigation, there was a danger that appellant's companions in the residence would destroy the contraband when appellant did not return according to prearranged plan, or else that appellant would contact the occupants of the residence by telephone after his arrest and tell them to dispose of the evidence.   Johnson stated that he had no way of preventing appellant from making such a call, and that he was not sure whether he would be able to obtain a search warrant in Santa Clara County promptly to forestall the destruction of evidence.   On the basis of this imminent threat, he chose to enter and secure the residence without a warrant.

Appellant contends that the warrantless securing of the residence was illegal, requiring suppression of the evidence subsequently obtained;  and that the search warrant was obtained through the use of false statements by police officers.   Neither of these arguments is persuasive.

Appellant relies on People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, People v. Shuey (1975) 13 Cal.3d 835, 120 Cal.Rptr. 83, 533 P.2d 211, and Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 106 Cal.Rptr. 452 to argue that the warrantless entry of appellant's residence was per se unreasonable and unjustified by any exigent circumstances;  and that the securing of the residence therefore constituted an illegal seizure which could not be legitimated or “disinfected” by the subsequent obtaining of a search warrant.   Alternatively, appellant urges that even if there was an emergency sufficiently “exigent” to excuse the warrant requirement, it was the foreseeable product of the police officers' own unjustifiable failure to obtain a warrant earlier, together with their manipulation of the sequence of the investigation and arrests.

 Although appellant's legal analysis follows logically from the holdings in the cited decisions, it does not square with the facts of this case.   In this case, the prosecution presented the testimony of witnesses who actually participated in the entry of appellant's residence.   Sergeant Johnson testified on the basis of his lengthy experience in narcotics investigation that once the arrests of Hoag and appellant took place, he believed that the remaining occupants of the Cupertino residence would destroy any evidence in the residence because they would have been alerted to the fact that something was amiss by appellant's failure to return from the transaction site or contact them.   Moreover, appellant would likely be able to warn his friends by telephone once he was booked into the Santa Clara County jail.   Indeed, Johnson testified that he knew of no way to prevent appellant from making such contact.   In short, the officers had genuine, reasonable grounds to believe there was an imminent danger that evidence in the residence would be destroyed.   Thus, there were sufficiently exigent circumstances to justify the warrantless entry and securing of appellant's residence.  (People v. Ramey, supra, 16 Cal.3d at pp. 275–277, 127 Cal.Rptr. 629, 545 P.2d 1333;  People v. Freeny (1974) 37 Cal.App.3d 20, 27–34, 112 Cal.Rptr. 33.)

 Although even exigent circumstances will not legitimate a warrantless seizure where the emergency is attributable to the officers' own unjustified failure to obtain a warrant and is “strictly of the ‘do it yourself’ variety” (People v. Shuey, supra, 13 Cal.3d at pp. 849–850, 120 Cal.Rptr. 83, 533 P.2d 211;  Shuey v. Superior Court, supra, 30 Cal.App.3d at pp. 540–541, 106 Cal.Rptr. 452), there is no evidence whatsoever that that was the situation in the instant case.   Unlike in Shuey or Ramey, the arrest here did not take place in the residence.   Rather, it occurred away from the residence at a time when the police knew both that appellant had just left the residence and that other people were still remaining there.   The police did not seize or restrain any of the persons in the residence upon entry.   The only two people there were permitted to leave.   Most important, appellant has not pointed to any evidence that, prior to the events occurring on October 12, 1981, the officers had probable cause to obtain a search warrant for appellant's residence.   There was no cross-examination of the police witnesses at the preliminary hearing in this regard.   Appellant is bound by the record, and cannot now argue that the emergency situation here resulted from the officers' unjustifiable delay in obtaining a warrant on probable cause when they could have done so earlier.   (In re Hochberg (1970) 2 Cal.3d 870, 875, 87 Cal.Rptr. 681, 471 P.2d 1;  People v. Scott (1944) 24 Cal.2d 774, 777, 151 P.2d 517.)   There is simply no evidence of improper police practices in the record of this case.

 Appellant also urges that the affidavit made in support of the search warrant obtained while the officers secured the residence was invalid.   There is no merit to this contention.   Johnson's declaration that he did not have sufficient manpower at his disposal to maintain occupancy of the residence until the daylight hours was not on its face untrue.   There is no indication of intentional deceit on his part in making this statement.   Although there were several other San Mateo undercover narcotics officers participating in the investigation, they were all in Santa Clara County at the time.   At the very least, it would obviously be impractical to require the San Mateo County officers to remain in Cupertino through the night awaiting service of a search warrant the next morning.   Officer Johnson's statement was plausible, reasonable and not deceitful.   At worst, it was an innocent overstatement, not unreasonable under the circumstances, and there are no grounds for quashing the warrant.  (Compare People v. Cook (1978) 22 Cal.3d 67, 148 Cal.Rptr. 605, 583 P.2d 130 with Theodor v. Superior Court (1972) 8 Cal.3d 77, 96–100, 104 Cal.Rptr. 226, 501 P.2d 234.)

The judgment is affirmed.

FOOTNOTES

1.   No explanation appears in the record for the discrepancy in the description given by Rodriguez and Johnson of the color of appellant's Camaro.

SCOTT, Acting Presiding Justice.

BARRY–DEAL and ANDERSON, JJ., concur.