PEOPLE v. ORELLANA (1987)

The People appeal pursuant to Penal Code section 1238 subdivision (a)(1) from an order setting aside the information (Pen.Code § 995) charging Ray Orellana with one count of possessing cocaine for purpose of sale (Health & Saf. Code § 11351) and one count of possessing marijuana for purpose of sale (Health & Saf.Code § 11359).   Two issues are raised on appeal:  (1) whether the officers' warrantless entry into Orellana's house to secure the dwelling from the destruction of evidence until the arrival of a search warrant violated the Fourth Amendment;  (2) whether the evidence discovered subsequent to the search warrant was based on a source independent from the initial entry.   For the reasons discussed below, we affirm the dismissal.

STATEMENT OF FACTS AND PROCEEDINGS BELOW

The facts are adduced from the preliminary hearing transcript.   Officer Ronald Daub of the Los Angeles County Sheriff's Department, Headquarters Narcotics Major Violators section, testified he observed Orellana leave his home at 8321 Michigan Avenue, Whittier, about 2:30 p.m. on March 3, 1986.   Officer Daub continued to observe Orellana's activities until he was arrested about 4:45 p.m. a short distance from his home.   At that time Officer Daub asked Orellana for permission to search his residence and was refused.

After the arrest Officer Daub returned to his office to get a search warrant while the other officers present at the arrest scene continued on to Orellana's residence.   Officer Daub obtained a telephonic search warrant from Judge Ronald S. Coen at 6:21 p.m.   He arrived at Orellana's residence about five or ten minutes after the warrant was signed and later served the search warrant.   When he arrived five officers were inside the residence.   Only Orellana's two sons were in the house at the time.   One was approximately 13 years of age;  the other, between 9 and 11 years old.   Before Officer Daub obtained the warrant, Orellana told him his two sons were at home and his wife was not there.

At the preliminary hearing the magistrate denied the defense's motion to suppress evidence obtained from a prior warrantless entry and search on the basis there was no evidence or testimony the officers searched the premises before the arrival of the search warrant.   He also denied the defense's motion to dismiss on the ground the search warrant was based partially on stale evidence in that the events observed on March 3d were timely.   Defense counsel expressly told the court he did not intend to traverse the warrant.   At trial Orellana moved to set aside the information pursuant to section 995 (Pen.Code).   The trial court granted the motion on the basis People v. Shuey (1975) 13 Cal.3d 835, 120 Cal.Rptr. 83, 533 P.2d 211 was controlling as the officers entered and secured the residence without showing exigent circumstances.

DISCUSSION

I. THE OFFICERS' WARRANTLESS ENTRY INTO ORELLANA'S HOME VIOLATED FOURTH AMENDMENT PROTECTIONS BECAUSE THERE WAS NO SHOWING OF EXIGENT CIRCUMSTANCES.

 The People contend the officers' warrantless entry into and securing of the Orellana home pending the issuance of the search warrant was necessitated by the fact Orellana's wife—a co-suspect—could have come home and destroyed the evidence.¹  In effect, appellant argues the likelihood the wife might destroy the evidence constituted exigent circumstances.   We disagree.

The Supreme Court in People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333 defined 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.”  (Italics added.)   The facts in the case at bench do not support the People's contention exigent circumstances existed which would justify a warrantless entry into the Orellana home.   There is nothing in the record to suggest entry was justified because of imminent danger to life, serious damage to property, or escape of a suspect.   The officers' primary concern appeared to be destruction of evidence, yet there is nothing in the record which could reasonably lead the officers to believe there was imminent danger evidence would be destroyed pending the arrival of the search warrant.   Orellana had been observed by officers for a couple of hours before they stopped him.   At that time he informed Officer Daub his sons, and not his wife, were at home.

 In People v. Shuey, supra, 13 Cal.3d at page 848, 120 Cal.Rptr. 83, 533 P.2d 211 the Supreme Court addressed the question whether police can secure premises prior to obtaining a search warrant.   In that case officers went to defendants' home to investigate suspected narcotics activity after having been informed five days earlier he had marijuana at that address.  (Id., at p. 838, 120 Cal.Rptr. 83, 533 P.2d 211.)   One suspect refused to allow the officers to search without a warrant so they occupied the apartment for three hours while they secured a search warrant.  (Id., at pp. 838–839, 120 Cal.Rptr. 83, 533 P.2d 211.)   The Supreme Court concluded it was unlawful for the officers to secure the premises because there was no evidence the suspect would destroy the contraband and thus any emergency was one the officers created themselves by alerting the suspect to the possibility of a search.   (Id., at p. 849, 120 Cal.Rptr. 83, 533 P.2d 211.)   The Court reasoned the securing of the premises in effect was an unlawful seizure which required suppressing the evidence and dismissing the information.  (Id., at p. 850, 120 Cal.Rptr. 83, 533 P.2d 211.)   In other words, the Shuey rationale is a warrantless entry without exigent circumstances is a premature execution of the search warrant.   Such was the case here.

The cases relied upon by the People which hold police can secure a residence pending issuance of a search warrant are distinguishable because in those cases the People showed exigent circumstances existed.   In some cases a suspect or suspects were in the residence.  (See Ferdin v. Superior Court (1974) 36 Cal.App.3d 774, 778–779, 782, 112 Cal.Rptr. 66 [suspect in house with parents and contraband plus probable cause to arrest];  People v. Daughhetee (1985) 165 Cal.App.3d 574, 578–579, 211 Cal.Rptr. 633 [two men in residence seen viewing detention of robbery suspect who had just left the house].)  In People v. Freeny (1974) 37 Cal.App.3d 20, 24–25, 112 Cal.Rptr. 33 the court concluded an emergency existed which justified the securing of a dwelling because the wife who was a participant in the illegal transaction was home.   When the police identified themselves at the door, they heard shrill sounds and footsteps.  (Id., at p. 26, 112 Cal.Rptr. 33.)   Following a forced entry the wife was seen coming from the bathroom.  (Ibid.)  She admitted after being arrested she had destroyed some contraband.  (Id., at pp. 26–27, 112 Cal.Rptr. 33.)   In the case at bench neither the wife nor any other adult was at home.   The only occupants were two children and the record contains no evidence to show there was imminent danger the children would destroy any evidence sought by the officers.²

 The People argue, however, entry into the Orellana home was also justified under Segura v. United States (1984) 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599.   Again we must disagree.³  In Segura the United States Supreme Court held officers may secure premises from within to preserve the status quo while in the process of obtaining a search warrant if they entered the premises with probable cause and arrested the occupants who have legitimate possessory interests in its contents.  (Id., at p. 798, 104 S.Ct. at p. 3382.)   In our case the officers did not enter the Orellana home with probable cause to arrest.   They had already arrested Orellana away from his home.   In fact, the record suggests they were substantially certain no adults were present in the home when they entered it.   Although the officers did not have reason to believe Orellana when he stated he knew of no one else in his home except his children, they could have gone to his home, knocked on the door and inquired.   If such an action on their part triggered a true emergency situation, then perhaps their entry would have been justified.   The mere possibility family members might destroy evidence cannot circumvent Fourth Amendment protections.  (See United States v. Davis (5th Cir.1970) 423 F.2d 974, 979, discussed in 2 La Fave, Search & Seizure (2d ed. 1987) § 6.5(b), p. 656.)

II. THE EVIDENCE SEIZED SUBSEQUENT TO THE SEARCH WARRANT CANNOT BE ADMITTED ON AN INDEPENDENT SOURCE THEORY BECAUSE THE CLAIM WAS NOT RAISED BELOW.

 The People contend the evidence seized pursuant to the search warrant was admissible because the warrant was based on a source independent from the entry into the Orellana home.   Again the People rely on Segura v. United States, supra, 468 U.S. at page 814, 104 S.Ct. at page 3390.   The Segura Court applied the federal rule which declares evidence will not be excluded if it can be shown the seizure was conducted pursuant to a valid search warrant wholly separate from any taint arising from the prior illegal entry.  (Id., at p. 814 & fn. 9, 104 S.Ct. at p. 3390 & fn. 9, citing Wong Sun v. United States (1963) 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441.)

In this case, however, the People did not claim below the search warrant was based on information gained independently from the illegal entry.   Under Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640–641, 108 Cal.Rptr. 585, 511 P.2d 33 we are precluded from considering this question on appeal.   In Lorenzana the People sought a remand to argue the evidence would have been inevitably discovered.  (Id., at p. 640, 108 Cal.Rptr. 585, 511 P.2d 33.)   Our Supreme Court rejected this contention on the basis the People should have argued this theory on the trial level at the pretrial suppression hearing.   (Ibid.)  It concluded since the claim had not been raised below, it could not be raised for the first time on appeal because to do so would defeat the purpose of section 1538.5 (Pen.Code).  (Ibid.)

Here a motion to suppress was entertained concurrently with the preliminary hearing.   The record does not indicate the deputy district attorney argued at that time the search warrant was based on a wholly independent source or presented evidence to show the officers who secured the residence in no way tainted Officer Daub's obtaining of the warrant.   Consequently the People waived this claim.

This case illustrates why it is so critical the independent source theory be raised below.   Because it was not, the record does not reflect whether there were facts to support such a theory.   For instance, there is no evidence whether the officer who went to obtain the search warrant was acting independently of those who made the illegal entry.   It is entirely possible they agreed one would get the warrant while the others “secured” defendant's residence.   In that case, the entry would clearly have been a premature, unlawful execution of this search warrant and not an independent unlawful entry unrelated to the execution of this search warrant.

 Since Orellana could only be bound over for trial on the basis of legal, competent evidence, the trial court properly set aside the information under section 995 (Pen.Code).  (People v. Allison (1967) 249 Cal.App.2d 653, 656, 57 Cal.Rptr. 635.)

DISPOSITION

The order is affirmed.

I respectfully dissent.   I would reverse the order setting aside the information.   On the record before us I cannot agree that exigent circumstances did not exist to justify the deputies' entry into the Orellana residence to secure the premises pending the obtaining of a search warrant.

Police entry and occupancy of premises, without a search warrant and absent an emergency, while a warrant is being secured constitute an unlawful seizure.   (People v. Shuey, 13 Cal.3d 835, 849–850, 120 Cal.Rptr. 83, 533 P.2d 211.)   Exigent circumstances that justify such an entry are defined in People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333 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.”  (P. 276, 127 Cal.Rptr. 629, 545 P.2d 1333) The circumstances here are such that it was reasonable for the deputies to believe that if they did not secure the premises there was a substantial risk that evidence would be destroyed or disappear before Deputy Daub could return with the warrant.

The record reflects the following facts.   Five months before Orellana's arrest, Deputy Daub and other deputies received information that Orellana and his wife were engaged in cocaine trafficking from their residence at 8321 Michigan Avenue, Whittier, and began a surveillance of the premises.   They observed Orellana receive two packages resembling cocaine from a man who subsequently was seen to enter the residence of a known convicted drug smuggler.   The deputies also learned that Orellana and his wife had no source of legal income.

On March 3, an informant related to Deputy Daub that Orellana had been making pickups of large amounts of money and dropping off large amounts of narcotics in the Whittier area and if Orellana was surveilled that afternoon, the deputies would be able to witness a transaction.   Accordingly, the deputies surveilled the residence and observed Orellana leave at 2:30 p.m.;   they followed him to a restaurant parking lot and saw him meet another man and have a conversation with him during which the man removed from the trunk of his car a large plastic shopping bag which was placed into the trunk of Orellana's car;  after more conversation, Orellana left;  he drove home at erratic speeds taking a circuitous route, going three miles out of his way, and constantly looking in his rear view mirror.   When he arrived home, Orellana removed the plastic bag from the trunk of his car;  a deputy observed it contained money, in excess of $100,000.   Orellana entered his house, but left 15 minutes later.   The deputies followed him four blocks, then at 4:45 p.m. “the team,” consisting of Deputies Austin, Belmontes, Clark, Nichols, Riazza and Daub, detained him.   Deputy Daub testified he had no “specific information” that Orellana's wife was in the house;  and that “[Orellana] said his two boys were there and we asked if anyone else was there and he said not as far as he knew.”   Deputy Daub took Orellana to the Sheriff's station;  the other deputies—Austin, Belmontes, Clark, Nichols and Riazza—went to Orellana's house.   After delivering Orellana to the station, Deputy Daub went directly to his office where he immediately began the process of obtaining a telephonic search warrant;  it was then 5 p.m., and he obtained the warrant at 6:21 p.m.

Deputy Daub arrived at the residence with the search warrant between 6:21 and 6:35 p.m.   The other deputies were inside standing or sitting in the kitchen and den;  two male children, ages 13 and 9–11, were in the den;  the deputies were not holding anything and were only talking;  they were simply waiting for Deputy Daub;  no papers or contraband had been laid out, taken or disturbed, no doors or windows had been forced, there was no disarray inside and desk drawers were not open;  it did not appear that anyone “had gone through things.”   Upon searching the residence pursuant to the warrant, the deputies found contraband, the subject of these charges.   During the search, “an adult came home.”

The magistrate found the deputies' entry was only to secure the residence pending issuance of a search warrant and that no search occurred until the arrival of Deputy Daub with the search warrant, and to be reasonable Deputy Daub's belief that Orellana had engaged in a sale of narcotics on March 3.   The superior court granted Orellana's motion to set aside the information (Pen.Code, § 995) on the authority of People v. Shuey, supra, 13 Cal.3d 835, 120 Cal.Rptr. 83, 533 P.2d 211.

The majority says the facts fail to support appellant's contention exigent circumstances existed to justify entry into the Orellana residence to secure the premises pending issuance of the search warrant.   The People claim there was substantial risk of destruction of evidence on the premises, and I agree.

Deputy Daub testified that he had no “specific information” Orellana's wife was at home, but that Orellana told him “his two boys were there and we asked if anyone else was there and he said not as far as he knew”;  and that during the search under the warrant, “an adult came home.”   The foregoing must be viewed in the context of the totality of the circumstances which includes the deputies' knowledge that Orellana's wife, too, was a suspect, that during the five months previous, Orellana and his wife had been engaged in trafficking cocaine from their residence, they had no source of legal income and Orellana was seen to receive what the deputies had reason to believe were two packages containing cocaine, that currently Orellana was making pickups of large amounts of money and dropping off large amounts of narcotics in the Whittier area, that between 2:30 and 4:30 p.m. on March 3, Orellana drove to a parking lot and received from a man a plastic bag containing money, in excess of $100,000, then immediately drove home with the bag in the trunk of his car at erratic speeds, by a circuitous route, constantly looking in his rear view mirror and, upon arrival, took the bag into the residence, that he left 15 minutes later and was apprehended and that, asked by Deputy Daub if he wanted to be present at the house during service of the search warrant, Orellana said “he didn't want to go near the house, he wanted to talk to his attorneys.”

Orellana's wife was a co-suspect, and the deputies' belief they were operating their unlawful business from their residence and using it as a warehouse for narcotics is reasonable.   Orellana told Deputy Daub that “as far as he knew” no one else but his two boys was in the house.   This, of course, is no assertion that she was not home.   Further, the deputies did not have to believe him.

The evidence shows that the team of deputies went to the house, at 2:30 p.m. saw Orellana leave and followed him keeping him under surveillance until he returned two hours later.   There is no evidence that during these two hours Orellana's home was under surveillance, in fact, the evidence indicates to the contrary for it was the remaining members of the team that detained Orellana who left the location of the detention and went to the residence.   Anyone, including Orellana's wife, could have entered the premises during those two hours.   Thus, the deputies had only Orellana's word that “as far as he knew” his wife was not at home—this from the lips of a man engaged with his wife in criminal activities in their residence.   Further, Orellana could have been protecting his wife.   The deputies did not know who, if anyone was in the house.   It must have been clear to them, as it is to me, that Orellana's wife either could have been in the home or could have arrived home before Deputy Daub returned with the warrant, in fact, it was no doubt she who was the adult who “came home” during the search under the warrant inasmuch as it is clear from defense cross-examination of Deputy Daub that Mrs. Orellana was “the other adult in the house”;  she just as well could have returned home earlier before his arrival.   Much has been said by the parties about whether Orellana could have called his wife or his sons or his lawyer or anyone else from the sheriff's station.   I am inclined to believe he could have;  certainly a call was on his mind when he told Deputy Daub that “he wanted to talk to his attorneys.”   But, in any case, in a narcotics operation as large as that in which the Orellanas obviously were engaged, there undoubtedly were others in that milieu—a friend, a customer, a relative, a lawyer, a neighbor, an associate, one involved in the same activities—who could have learned of her husband's detention and relayed the information to the wife;  and had she, a co-suspect, been alerted to Orellana's arrest, it cannot be doubted that immediately she would have destroyed any evidence of his guilt, to say nothing of that which would implicate her.

It developed that only the two sons were home—a teenager and one 9 to 11.   Narcotic activities had been going on in that home during the last five months;  the deputies had information both Orellana and his wife were trafficking cocaine from there;  it is probable that the older boy, at least, was aware of the nefarious activities and would have known enough to destroy evidence upon being told by a parent to do so.

The deputies had probable cause to believe that Orellana's wife was involved with him in his narcotic activities, that Orellana maintained his inventory of cocaine at their residence, that they used the home as a warehouse for cocaine and that on the premises at that time were money and contraband.   In my opinion, under all of the circumstances, the deputies had a right to secure the premises to preserve the evidence while Deputy Daub was in the process of obtaining a search warrant.   There was no abuse of police power;  all that the deputies did was reasonable.   They did not search the premises while waiting for the return of Deputy Daub, they touched nothing;  they used no force to gain entry;  they were either standing or seated empty-handed in the kitchen and den doing nothing more than talking, simply awaiting the arrival of the warrant;  in no way did they exploit their presence in the Orellana residence;  they were there no more than two hours;  efforts to obtain the search warrant were commenced immediately upon obtaining probable cause to search the residence and the detention of Orellana, and all of this occurred within those two hours;  the deputies had reasonable cause to believe money and contraband were in the house, and even to arrest Orellana's wife;  there was a substantial likelihood evidence would be destroyed if the premises were not secured until a search warrant could be obtained;  and there is no evidence that any of the information on which the warrant was secured was derived from or in any way related to the entry or the securing of the Orellana residence.   I cannot find that there was a violation of the Fourth Amendment's proscription against unreasonable seizures.   I would reverse the order.

FOOTNOTES

1.   Appellant also contends respondent could have telephoned his wife or children to destroy the evidence.   We do not consider this contention since there is no evidence in the record respondent had access to a telephone.

2.   Appellant does not raise on appeal the question whether the children gave constitutionally sound consent to the entry.   Moreover, this issue was not raised below so we do not consider it here.

3.   Following the passage of section 28, subdivision (d) (Cal. Const., art. I) which provides “relevant evidence shall not be excluded in any criminal proceeding, ․” California's independent exclusionary rules are abrogated insofar as they are inconsistent with federal law.   (People v. Truer (1985) 168 Cal.App.3d 437, 440–441, 214 Cal.Rptr. 869;  In re Lance W. (1985) 37 Cal.3d 873, 886–887, 210 Cal.Rptr. 631, 694 P.2d 744.)   We find no such inconsistency here.   The cases cited by the Supreme Court in Sequra, supra, 468 U.S. at page 814, footnote 9, 104 S.Ct. at page 3390, footnote 9 support our position insofar as finding no exigent circumstances in the case at bench.   They are distinguishable by the fact the government in those cases showed independent sources of information for the search warrants or the matter was remanded for that purpose.   For example, in United States v. Perez (8th Cir.1983) 700 F.2d 1232, 1235 officers entered a residence without a warrant and took a suspect's girlfriend into custody.   The residence was secured and thirteen-and-one-half hours later officers executed the search warrant.  (Ibid.)  The Perez court held the entry was illegal because there was no evidence the girlfriend was involved in dealing drugs, knew defendants had been arrested or was likely to destroy evidence.  (Id., at p. 1237.)   Similarly, the court in United States v. Kinney (6th Cir.1981) 638 F.2d 941, 943–945 held the government did not demonstrate exigent circumstances for a protective sweep of an apartment following the arrest of defendant on his porch.   In United States v. Agapito (2d Cir.1980) 620 F.2d 324, 336–337 the court held agents' entry into a hotel room could not be justified as a security check because they had kept the room under surveillance for two days prior to entry and intrusively used the room intermittently until the search warrant arrived nearly 24 hours later.   In United States v. Fitzharris (5th Cir.1980) 633 F.2d 416, 420 the entry was treated as being unlawful because the district court did not consider the matter of exigent circumstances.

JOHNSON, Associate Justice.

THOMPSON, J., concurs.