P. v. Buckner
Filed 3/29/13 P. v. Buckner CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
ANGELNETTE T. BUCKNER,
Defendant
and Appellant.
B241473
(Los
Angeles County
Super. Ct.
No. BA379659)
APPEAL
from a judgment of the Superior Court
of
County. Ronald H.
Rose, Judge. Reversed with directions.
Thomas K.
Macomber, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Angelnette
T. Buckner appeals from the trial court’s order denying her motion to suppress
marijuana and other items seized during a warrantless
search of her apartment. We reverse
the court’s judgment finding her guilty of possession of marijuana for sale,
direct the court to grant her motion to
suppress, and remand for further proceedings.
FACTS AND PROCEEDINGS
One
evening in January 2011, Los Angeles Police Officer Alfred Gonzales was on
patrol with his partner shortly before 6:00 p.m.
when a radio call directed them to a second floor apartment of a multi-unit
building on South Occidental Street. When they arrived at the location, they took
the elevator to the second floor. As
they got out of the elevator, Officer Gonzales “noticed a strong smell of
marijuana†in the apartment building hallway.
They walked approximately 75 feet from the elevator to the
apartment. As they approached the apartment,
the marijuana smell strengthened, but Officer Gonzales could not tell whether
the odor was “fresh†or “burnt†marijuana.
When the officers drew close to the apartment, Officer Gonzales saw its
door was ajar about six- to eight-inches and an electrical extension cord ran
from a hallway outlet into the dark apartment.
The officers paused to listen for any sound. About 30 to 45 seconds later, Officer
Gonzales heard an unintelligible male voice in the apartment. Without identifying himself as a police
officer, Officer Gonzales knocked “fairly hard†on the door. Officer Gonzales then heard “what sounded . .
. like some rumbling and shuffling.â€
Believing the occupants might be destroying evidence, the officers
pushed the door open and entered the apartment without a warrant. Illuminating the apartment with his
flashlight, Officer Gonzales saw appellant, two men, and what appeared to be
marijuana on a coffee table. Officer
Gonzales testified that he entered the apartment based on the “rumbling and
shuffling†and because he “thought that with the smell of the marijuana coming from
the room, also based on the comments of the call, I believed this was possibly
a narcotics location and that there was potential they could be destroying
evidence.†The “comments of the call,â€
he testified, were the “strong smell of marijuana,†the door being “slightly
ajar†and the electrical cord “coming out of the door.â€
Officer
Gonzales asked appellant and the two men to step out into the hallway. The officers then searched the apartment,
recovering cash and marijuana.
name="_ftnref1" title="">[1] The People charged appellant with possession
of marijuana for sale. Appellant pleaded
not guilty and filed a motion to suppress the evidence seized from her
apartment. (Pen. Code, § 1538.5.) Appellant’s motion acknowledged the smell of
marijuana gave the officers probable cause to seek a search warrant, but argued
that the circumstances known to the officers when they stood outside her
apartment did not create exigent circumstances, such as probable cause to
believe the apartment’s occupants were destroying evidence, to justify their
warrantless entry into her apartment.
The
trial court denied appellant’s motion to suppress. Finding the officers acted lawfully, the
court explained, “Here we have a door that’s open, electrical cord that’s
running out. Presumably they could investigate
that. They knock and there’s no
immediate response. The issue is whether
or not that is sufficient for them just to walk in to make contact with the
individuals, and the odor of marijuana is overwhelming if they can smell it 75
feet away. [¶] So it isn’t a case where somebody walks up
and can smell a small quantity. Clearly,
there must be a much larger quantity or it was recently smoked if somebody is
able to smell it from that distance.
[¶] So at this point, I will deny
the motion to suppress . . . .â€
Following the court’s ruling, appellant withdrew her not guilty plea and
pleaded no contest. The court suspended
the proceedings and imposition of sentence and ordered appellant to serve three
years’ formal probation and time served.
This appeal followed.
Appellant
argues, and the Attorney General accepts, that a warrantless entry and search
of a person’s residence, such as appellant’s apartment here, is presumptively
unreasonable under the United States
and California Constitutions. (
205 Cal.App.4th 989, 993 (Torres).) The Attorney General acknowledges that the
People bear the burden of showing exigent circumstance to rebut the presumption
of unreasonableness. (
351, 355-56.) The Attorney General
asserts exigent circumstances existed here because Officer Gonzales believed
the apartment’s occupants were destroying evidence. (People
v. Ramey (1976) 16 Cal.3d 263, 276 [“ ‘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 evidenceâ€].) Appellant contends the circumstances known to
Officer Gonzales did not permit him to conclude appellant and her companions
were destroying evidence of a sufficiently serious crime to permit a
warrantless entry into her apartment.
We
review the trial court’s factual findings for substantial evidence. We independently review the constitutional
reasonableness of a warrantless entry and search. (In
re Raymond C. (2008) 45 Cal.4th 303, 306; People v. Glaser (1995) 11 Cal.4th 354, 362;
p. 993.) We measure the exigency
arising from suspected destruction of evidence by the facts known by the
officers at the time of the search. (
395, 465; People v. Ramey,
p. 276.) The officer’s facts must
be “specific and articulable.†(
1255, 1262.) An officer must have
“probable cause†to believe destruction of evidence is imminent. (Torres
at p. 994; People v. Thompson
(2006) 38 Cal.4th 811, 817-818.) “ ‘Fear or apprehension alone that evidence will be destroyed
will not justify a warrantless entry of a private home.’ †(Gentry at p. 1262.) “When
establishing exigent circumstances, it is not sufficient to merely state that
the evidence is on the premises.
[Citation.] There must be some
proof that shows the removal or destruction of the evidence is imminent.†(United States v. Driver (1985) 776 F.2d 807, 811.) Finally, the officers must reasonably believe
the evidence about to be destroyed is of a crime for which incarceration is a
possible punishment. (
158 Cal.App.4th 1027, 1034 (Hua)
[“entry into a home to preserve evidence from imminent destruction is limited
to evidence of crimes that are not minorâ€].)
Here,
Officer Gonzales “noticed a strong smell of marijuana†when he got out of the
elevator 75 feet from appellant’s apartment, with the smell intensifying as he
approached the apartment. Standing
outside the apartment, he saw an electrical cord running from a hallway outlet
into the apartment through a slightly open door. But Officer Gonzales did not cite appellant’s
“stealing†electricity from the hallway outlet as a reason for entering the
apartment. And the mere smell of
marijuana does not, by itself, justify a warrantless entry into a residence.
supra, 158 Cal.App.4th at pp. 1035-1036.) Possession of less than one ounce of
marijuana is an infraction for which the maximum penalty is a fine of no more
than $100. (Health & Saf. Code,
§ 11357, subd. (b).) The
nonjailable consequence of simple possession of a small amount of marijuana
creates an important demarcation in what police may, and may not do, when they
smell marijuana.
title="">[4] The demarcation balances the constitutional
sanctity of one’s home against law enforcement’s duty to suppress crime. Two decisions illustrate that the balancing
here weighs in appellant’s favor.
In
Hua, supra, 158 Cal.App.4th 1027,
officers received a report of a “noise disturbance†at an apartment
building. (Id. at p. 1030.) As
they approached the noisy apartment, they noticed the “ ‘distinct odor’ of burnt
marijuana†– evidence of a possible crime was thus literally going up in
smoke. They knocked on the apartment
door and, while waiting for a response, peered through the apartment’s open
window blinds. The officers saw several
people inside, one of whom inhaled from what appeared to be a marijuana
cigarette, confirming the officers’ suspicion that criminal activity was likely
underway. The defendant then opened the
door. The officers told the defendant
they were concerned about the destruction of evidence “because of the amount of
smoke evident inside the apartment†and asked for the defendant’s consent to
enter his apartment. He refused, but the
officers went inside anyway. (
On
review, the Hua court found no
exigent circumstance arose from the officers’ seeing someone smoke marijuana
even though the act of smoking was destroying evidence. The
when they enter a residence to arrest the occupant and/or seize contraband is
possession of no more than 28.5 grams of marijuana.†(Italics added.) (Hua,
supra, 158 Cal.App.4th at p. 1030.) The Attorney General argued the officers had
reason to believe the defendant possessed more than one ounce of marijuana,
which is a jailable offense that would permit a warrantless entry to preserve
evidence from imminent destruction. But
the Hua court rejected the People’s
argument as conjecture. The court
stated, “While we accept the reasonable
possibility that there was more marijuana in the apartment than the two blunts
observed by the officers, it is mere conjecture to conclude that there was
enough to constitute a jailable offense.â€
(Id. at p. 1036.) The Hua
court explained that society’s interest in suppressing minor marijuana offenses
does not overcome society’s greater interest in the privacy of homes. The court explained: “California has
chosen to treat the offense of possession of less than 28.5 grams of marijuana
as a minor offense that is nonjailable even for repeat offenders. . . . [O]ne consequence of that decision is to
preclude officers who see this offense being committed from entering a home
without a warrant or consent to seize the offender or the contraband, in order
to prevent the imminent destruction of evidence of the offense.†(Id.
at p. 1037.)
Our
decision in Torres, supra, 205
Cal.App.4th 989 embraced Hua. In Torres,
officers noticed a “strong smell†of marijuana two or three feet from a hotel
room door. (Torres at p. 992.)
Although the marijuana odor was the only indication that the room’s
occupants were smoking marijuana, the officers entered the room without a
warrant. The trial court denied the
defendant’s motion to suppress the marijuana, finding “police officers could
lawfully enter the hotel room to prevent marijuana from being destroyed or from
‘going up in smoke.’ †(
officers had no specific and articulable facts supporting
probable cause to believe destruction of evidence of a jailable offense was
imminent. We explained, “police
only smelled the odor of burning marijuana.
They had no other information about marijuana possession or any other
marijuana-related crime occurring in the hotel room. No evidence indicated the officers had reason
to fear the imminent destruction of evidence of a jailable offense. . . . [A] belief that evidence of a nonjailable offense
will be imminently destroyed is not sufficient to justify a warrantless entry
based on exigent circumstances.†(
The
Attorney General distinguishes Hua
and Torres from appellant’s
circumstances, but the distinctions are unavailing. The Attorney General notes, for example, that
Hua and Torres did not involve marijuana smelled 75 feet away. According to the Attorney General, an odor
wafting such a distance suggests a large amount of marijuana. Moreover, according to the Attorney General,
the electrical extension cord suggested appellant might have been drawing extra
electricity for grow-lights to cultivate marijuana inside the apartment, again
suggesting a large amount of marijuana.
And finally, Officer Gonzales heard “some rumbling and shuffling†after
knocking “fairly hard†on the door to appellant’s apartment.
We
are unpersuaded because Officer Gonzales’ speculation about a large amount of
marijuana inside the apartment was just that.
He conceded he could not tell whether the marijuana smell was “burnt†or
“fresh,†breaking any link between the odor’s pungency and the amount of
marijuana. Also, Officer Gonzales and
his partner did not identify themselves as police when they knocked on
appellant’s door. Thus, the officers’
conclusion that “rumbling and shuffling†inside the apartment meant the
occupants were trying to keep evidence from the police by destroying it was
speculation because the occupants did not know it was police who had
knocked. (People v. Gentry, supra, 7 Cal.App.4th at p. 1264
[officers “must have an objectively reasonable basis for believing there is
someone inside the residence who has reason to destroy evidenceâ€]; contrast
32 Cal.App.4th 286, 290, 293 [officers in line of sight of
defendant inside hotel room, thus reasonable for officers to believe defendant
might try to destroy evidence before officers could seize it].) As for the extension cord, Officer Gonzales did
not testify he thought appellant was stealing electricity as his reason for
entering the apartment without a warrant.
And the Attorney General’s assertion offered on appeal (but not urged by
the People in the trial court) that an extension cord running into a dark
apartment suggested marijuana cultivation, instead of, say, electrical problems
inside the apartment, finds no support in the record.
The
Attorney General asserts appellant failed to preserve her argument that Officer
Gonzales and his partner had no grounds to believe appellant possessed more
than one ounce of marijuana. Thus,
according to the Attorney General, appellant has forfeited the point. The Attorney General’s assertion is
tantamount to claiming appellant had the burden of producing evidence that the
amount of marijuana was less than one ounce.
The assertion is mistaken.
Appellant’s motion to suppress argued the smell of marijuana did not
give Officer Gonzales and his partner enough facts to justify a warrantless
entry into appellant’s apartment.
In response to appellant’s motion, the People bore the burden of showing
the officers had probable cause to believe an exigent circumstance existed,
such as the destruction of more than one ounce of marijuana. (People
v. Rios (1976) 16 Cal.3d 351, 355-56.)
Appellant’s motion to suppress did not need to create a road map of each
element the prosecution must prove for the trial court to find an
exigency. “[D]efendants must specify the precise grounds
for suppression of the evidence in question, and, where a warrantless search or
seizure is the basis for the motion, this burden includes specifying the
inadequacy of any justifications for the search or seizure. In the interest of efficiency, however,
defendants need not guess what justifications the prosecution will argue. Instead, they can wait for the prosecution to
present a justification. Moreover, in
specifying the inadequacy of the prosecution’s justifications, defendants do
not have to help the prosecution step-by-step to make its case. The degree of specificity that is appropriate
will depend on the legal issue the
surrounding circumstances. Defendants
need only be specific enough to give the prosecution and the court reasonable
notice. Defendants cannot, however, lay
a trap for the prosecution by remaining completely silent until the appeal
about issues the prosecution may have overlooked.†(People
v. Williams (1999) 20 Cal.4th 119, 127, 130-131 [motion to suppress
that focused on lack of probable cause to stop vehicle, but which also cited
case law governing inventory search of vehicle’s contents, preserved appellate
challenge to inventory search].)
In
Torres, we rejected as “not a
meaningful distinction†the Attorney General’s attempted distinction between
defendant possessed less than one ounce of marijuana. In Hua,
the officers saw through open window blinds only one person smoking marijuana,
which tended to suggest the defendant possessed a small amount of
marijuana. But in Torres, the officers did not make any observation through a closed
hotel door that might have suggested only a small amount of marijuana was
inside the hotel room. We said in
distinction. In both cases, police
officers smelled marijuana burning from outside the residence. In this case, the smell was the only
indication police had that marijuana was being consumed. In both cases, police officers had no basis
other than speculation to believe that more than 28.5 grams of marijuana was
being possessed in the residence. As
explained in Welsh, ‘the police bear
a heavy burden when attempting to demonstrate an urgent need that might justify
warrantless searches or arrests.’
[Citation.] Speculation that
someone inside a residence could be possessing more than 28.5 grams of
marijuana based on nothing more than the smell of burning marijuana emanating
from the residence, with no other details, does not meet that heavy
burden.†(Italics original.) (Torres,
supra, 205 Cal.App.4th at p. 996.) Likewise here. Officer Gonzales smelled marijuana, but he
could not tell whether it was burnt or fresh.
Thus, the amount of marijuana inside the apartment was conjecture. Speculation that the amount may have been
more than one ounce did not support the warrantless entry. (Ibid.)
The
Attorney General asserts Hua and
the assertion in order to preserve the Attorney General’s argument for further
appeal (presumably to our Supreme Court.)
We note the Attorney General’s assertion, but stand by our decision in
DISPOSITION
The
judgment is reversed, and the trial court is directed to grant appellant’s
motion to suppress evidence seized from her apartment. The matter is remanded for further
proceedings.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
GRIMES,
J.
name="_ftn1" title="">[1] After
Officer Gonzales directed appellant and her companions to the hallway, he
established that appellant was the apartment’s tenant and received her written
consent to search the apartment. Apparently,
the trial court implicitly found that appellant’s consent was not voluntary
following her removal from the apartment.
As the court explained in denying appellant’s motion to suppress, “The
issue here boils down to whether or
not the officers could walk into the apartment because once they removed the defendant from the apartment, they get
consent to search. So
apartment.†(Italics added.) Moreover, the Attorney General does not rely
on appellant’s after-the-fact written consent as vitiating the People’s need to
show exigent circumstances for the officers’ initial entry into appellant’s
apartment.
name="_ftn2" title="">[2] Appellant
concedes the circumstances, on the other hand, gave the officers probable cause
to seek a search warrant, but they did not do so here.
