PEOPLE v. DAVIS (1980)

Defendant appeals from a judgment of conviction (sentence) following nonjury trial on a charge of possession of Quaaludes for sale (Health & Saf. Code, § 11378(a)), a felony.   Trial was had, with appropriate waivers, on the preliminary hearing transcript, after a motion to suppress evidence under section 1538.5 of the Penal Code had been heard and denied.   As is not unusual in these cases, the contentions on appeal relate exclusively to the propriety of the actions of the police officers involved.

FACTUAL BACKGROUND

One Jeff Sherwood several weeks before the period of time in question, had been arrested for driving under the influence of drugs.   He told Sergeant Rivera, a narcotics officer, that a Laurie Davis, whose telephone number he furnished, was selling cocaine and Quaaludes from her apartment located on Moorpark Street, and that she drove a blue Toyota or Datsun automobile.   Sherwood was later to “make a buy” for the police from defendant-to-be Davis, but could not be contacted to do so.

After several weeks, Sergeant Rivera checked the address via the telephone number and found it to be on Moorpark, went to the address where he found a Mr. Murset, owner of the premises (an apartment house), who indicated that a particular blue Datsun or Toyota in the rear parking lot was that of his tenant Laurie Davis;  and also related that he had see people visit her quite often, staying only a short time, and that on one occasion a person appeared to have been under the influence.   Thereupon Sergeant Rivera called the telephone number and spoke to a “Laurie,” telling her he'd gotten her number from Jeff Sherwood after meeting him at a party, and Sherwood had told him he could probably buy some “coke” or Quaaludes from her.   According to the officer, defendant stated she had no cocaine but did have 100 Quaaludes he sought to buy and would sell them for $3.25 each;  that she was angry that Jeff Sherwood had given him her number, but would call to verify that he was “okay,” whereupon she would sell to him.

The officer called again twenty or thirty minutes later, asking if she had contacted Jeff.   Defendant told him that she had called Jeff and he was due to return her call shortly.

At that point, Officer Rivera prevailed upon Mr. Murset to accompany the police officers to defendant's apartment, where Mr. Murset knocked on the door, announced who he was, and left.   When defendant opened the door, Sergeant Rivera displayed his badge and indicated that she was under arrest for selling Quaaludes.   They entered the apartment;  certain evidence was found, and admissions made.¹

CONTENTIONS ON APPEAL

Initially, appellant seeks to challenge the entry into the apartment, and arrest, of the defendant, in that the entry failed to comply with section 844 of the Penal Code, and the arrest occurred in defendant's apartment without a Ramey ² warrant having been obtained.

We first advert to the Penal Code 844 problem, albeit somewhat briefly since it will be again considered in conjunction with the warrantless arrest.

 Clearly, this is a case in which Penal Code section 844 is applicable.   Under the section, a police officer may not “break open” a door in order to effectuate an arrest within a house or an apartment, without compliance with the so-called knock-and-notice requirements.   It is now well-settled that mere entry through an open door (People v. Bradley (1969) 1 Cal.3d 80, 87 and fn. 1, 81 Cal.Rptr. 457, 460 P.2d 129), and even a door which has been opened in response to the officer's knocking (People v. Leighter (1971) 15 Cal.App.3d 389, 397, 93 Cal.Rptr. 136), or which is prevented from closing by the officer (People v. Baldwin (1976) 62 Cal.App.3d 727, 739–740, 133 Cal.Rptr. 427) is a “breaking open” for purposes of section 844.   With the showing of identification and purpose here shown, it would seem that the purposes of the section have been served.

 People v. Ramey, supra, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, added a certain symmetry to our law with respect to arrests and searches taking place in the home.   It is now clear that either must be preceded by procurement of a warrant from an impartial magistrate;  and it has long since been held that the knock-and-notice requirements relating to either are legally the same (People v. Peterson, supra, 9 Cal.3d 717, 722, fn. 7, 108 Cal.Rptr. 835, 511 P.2d 1187.)   In this instance, no Ramey warrant was sought, and the main issue is whether it was excused due to exigency cognizable by the law.³

Recapitulating the salient matter on the point, it can be stated as follows:  Having had the information as to criminal activity, including person, location and car, the officers checked as to defendants' actual residence at the location and type of car driven;  apparently satisfied from the verification at the site that the lead given had sufficient validity to warrant further investigation, the initial phone call gave them the information that defendant was at home, and had a contraband drug which she would be willing to sell, once satisfied that the proposed buyer would not be (as the caller was) a policeman or a police agent;  that defendant would seek to do that by telephoning Jeff Sherwood;  after twenty to thirty minutes wait, the police called once again, in which brief conversation they were told that defendant expected a call back from Sherwood very soon;  and thereupon undertook to make the arrest.   The question is thus posited as to whether these are “exigent circumstances”.  “In this context, ‘exigent circumstances' means 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.   There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.”  (People v. Ramey, supra, 16 Cal.3d at p. 276, 127 Cal.Rptr. at p. 637, 545 P.2d at p. 1341.)   The trial judge held that the foregoing delineated a situation wherein the known facts indicated to the officers an emergency requiring swift action to prevent destruction of evidence.

 An objective evaluation of known facts must be made, to determine that these are specific enough to indicate that destruction of the evidence was near at hand, impending, and threatening unless prompt action to arrest is forthcoming, to qualify as the appropriate “exigent circumstance.”  (James v. Superior Court (1978) 87 Cal.App.3d 985, 991, 151 Cal.Rptr. 270.)

The primary thrust of appellant's argument is that the specific facts do not support the finding of exigent circumstances.

Certain facts need not, of course, be shown.   They are the product of common sense and human experience.   As the Supreme Court has said:  “Our decisions, as well as those of the United States Supreme Court, have more than once recognized the ease and speed with which the disposal of narcotics can be accomplished.  [Citations omitted.]”  (People v. Carrillo (1966) 64 Cal.2d 387, 392, 50 Cal.Rptr. 185, 187, 412 P.2d 377, 379.)   Rather, the necessary facts are those which indicate, first to the officer and thereafter to the trial court, that the disposal will occur rather quickly unless police action prevents destruction of the contraband.⁴

 To a great degree, in destruction of evidence cases, the facts which would excuse compliance with section 844 are similarly applicable with respect to excusing compliance with Ramey.   In this particular instance, by use of the stratagem in which the landlord knocked on the door and caused appellant to appear in the doorway, the officers were able to ensure that the Quaaludes would not be destroyed while they stood outside.   As we have held in People v. Superior Court (Proctor) (1970) 5 Cal.App.3d 109, 112–113, 84 Cal.Rptr. 778, the ruse here involved is quite proper;  in this instance, its use did not indicate a desire to avoid knock and notice requirements as much as a fear that precipitous action toward destruction would take place otherwise.

That fear the trial judge found justified, and upon proper facts.   The very call ⁵ that gave rise to the right to arrest had, at least to some extent, alerted the defendant to danger.   The conversation indicated that she had the drugs and was willing to sell, and the only bar to an immediate transaction was defendant's reluctance to deal with anyone until she could be sure that they were not police.   She was angry that her number had been given out, but did not know or was not sure that the caller had her address.   She feared detection and arrest;  and if the quarry was not sure if she had been found by the searcher, she was at least very much on her guard.

Under these circumstances, the police waited and called again to see whether time had quieted her apprehensions.   She might have called Jeff Sherwood and have spoken to him, in which event she might have already disposed of the drugs, or there might be a remote chance that he would not alert her as to the police activity.   Or, as occurred, she might be unable to contact Sherwood right then.   Having no way to determine what was happening, the second call was made, in which it was determined that defendant had called Sherwood;  that he would call her back at any moment;  and that she would not deal with the caller until speaking with Sherwood.   Since the likelihood of Sherwood allaying her fears was always remote, and the second call might well increase her fears and suspicions, the need for immediate action was a reasonable deduction from the little that was known.

Appellant argues, however, that the wait militates against the immediate need for action.   However, the second call, whether made within five minutes or after five hours, was an eminently reasonable effort.   Since defendant could have delayed calling Sherwood or been unable to contact him, she might have been reassured by the very fact that the call was made again to her, as indicating confidence that Sherwood would verify the prospective buyer's trustworthiness.   The second call could (but did not) produce any number of results;  the specific fact is, that it produced none except the statement that she expected to hear from him very soon.   This telegraphed the need for immediate action.   Once defendant spoke to Sherwood, and realized that the police were hot on her trail, destruction would necessarily follow.

 Appellant also contends that it was the police that caused the exigency by making that second call, such that the principle of People v. Shuey (1975) 13 Cal.3d 835, 120 Cal.Rptr. 83, 533 P.2d 211, would apply.   In Shuey, the legal situation was entirely different than the one here presented, because that case was one in which the Supreme Court stated that their decision was based upon the issue of a seizure without probable cause to arrest (People v. Shuey, 13 Cal.3d at 848, 120 Cal.Rptr. 83, 533 P.2d 211), whereas here probable cause to arrest is conceded.   The issue, in Shuey, was whether the police could hold a person within his apartment, while obtaining a warrant.   They had, it was held, seized the person and all his property the moment the police arrived, which was a full five days after they had received the information upon which they sought to predicate the right to search.

Nor was ours an emergency that was “strictly of the ‘do-it-yourself’ variety” as had been the very different situation sought to be used as justification in Shuey.   There was clearly no right to arrest, nor any in this case until the first telephone call;  and the situation was a very fluid one.   What was to happen thereafter was dependent upon defendant's and Sherwood's actions or nonactions, not the actions of the officers as in Shuey.

 Whether there were exigent circumstances to excuse a warrantless arrest at the end of the first phone call is doubtful.   That the defendant herein was suspicious enough to “play it cool” was quite certain, but there was as yet no truly specific or articulable fact to indicate that destruction was imminent.   She might have done any number of things, but that danger was not real nor imminent.   When the second call was made, the officers knew that she expected a call from Sherwood any minute, was still wary and suspicious, and based thereon determined that she would destroy the evidence the moment he returned her call.   These were the facts which the trial court held amounted to the “extraordinary situation” which is excepted in Ramey.   We are bound by that determination.  (People v. Patterson (1979) 94 Cal.App.3d 456, 463, 156 Cal.Rptr. 518;  People v. Superior Court (Godwin), supra, 68 Cal.App.3d 780, 783, 137 Cal.Rptr. 586.)

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   The facts were disputed in various aspects and by various persons at the preliminary and 1538.5 motion hearings.   In accord with the rulings, the facts have been set forth most favorably to the successful party in accordance with the implied findings.  (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.)

2.   So-called Ramey warrants are so denominated because the first case requiring a warrant for an in-home arrest was People v. Ramey (1976) 16 Cal.3d 263, 270–276, 127 Cal.Rptr. 629, 545 P.2d 1333.

3.   The United States Supreme Court, after a very long silence, has just spoken on the issue, and it is now clear that federal law will parallel that of California.  (Payton v. New York (1980) 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639.)   In each instance, exigent circumstances will excuse the warrant requirement.

4.   Our highest court noted long ago that “[s]uspects have no constitutional right to destroy or dispose of evidence” (People v. Maddox (1956) 46 Cal.2d 301, 306, 294 P.2d 6, 9).

5.   In People v. Porras (1979) 99 Cal.App.3d 874, 879–880, 160 Cal.Rptr. 627, the court intimated that a telephone call by police might constitute an invasion of the right to privacy were it a ruse, and also a violation of Ramey if the purpose were to lure the suspect out of his apartment in order to effect an arrest, and invite the Supreme Court to review this area of law.   That review has not been forthcoming.   In any event, the police here did no more than is usual in connection with undercover activity via telephone call, and did not seek to lure the defendant outside.   Thus, neither Porras nor the other luring outside cases (People v. Superior Court (Godwin) (1977) 68 Cal.App.3d 780, 137 Cal.Rptr. 586) nor the ruse to get inside cases (People v. Mesaris (1970) 14 Cal.App.3d 71, 91 Cal.Rptr. 837) are apposite.

WEISZ,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

LILLIE, Acting P. J., and HANSON, J., concur.