*1 No. 23758. May [S.F. 1979.] CLEAVER, Petitioner,
LEROY ELDRIDGE v. COUNTY, THE OF ALAMEDA SUPERIOR COURT Rеspondent; PEOPLE, THE in Interest. Real Party No. 23759. May
[S.F. 1979.] PEOPLE, Petitioner,
THE COUNTY, THE SUPERIOR OF COURT ALAMEDA Respondent; CLEAVER, LEROY ELDRIDGE Real in Interest. Party *3 Counsel *4 Keker,
John W. Shawn, Keker & Brockett and Marcus S. Kipperman, el for Petitioner in No. 23758 and Real in Top Interest in No. 23759. Party J. General, Evelle Winkler, Jack R. Chief Assistant Younger, Attorney General, O’Brien, Edward P. General, Assistant W. Attorney Attorney Svetcov, General, Eric Collins and Sanford for Deputy Attorneys Petitioner in No. and Real in Interest in No. 23758. Party No for appearance Respondent.
Opinion RICHARDSON, Cleaver was J. —Defendant in an Eldridge charged, indictment returned the Alameda Grand with County Jury Code, three counts murder and three counts of (Pen. 187), § attempted (id., 245, assault awith officers subd. (b)). deadly weapon upon § police indictment, to his defendant moved certain Subsequent suppress evidence to Penal Code section 1538.5. After pursuant hearing and the trial court the motion to as to some of argument, granted suppress the items others, denied as but it Both the defendant and challenged, mandate, determine, seek writs of and we must now on the facts, items, basis of the which if following undisputed challenged must be any, suppressed.
The Basement Searches arose from defendant shootout between charges against alleged Oakland officers and associated with the Black Panther persons Officers Darnell and April At p.m. approximately Party. Street, Oakland, Jensen, 2095 Union while on patrol vicinity California, several assailants who fled fired were unexpectedly upon wounded, and battle ensued on foot. Both officers lengthy gun to the scene. were summoned officers other Oakland arrested, defendant and codefendants were of defendant Cleaver’s Six the basement Hutton, and his refuge sought companion, Bobby was owned The residence 1218 28th Street Oakland. residence at Pierre, from the house was carried Nellie who her safety occupied by laid while the officers 90-minute officers seige period by police At were cornered. where the two the basement approximately suspects afire defendant a tear cannister set the driving building gas p.m. shot when he exited Hutton was Hutton from basement. fatally and Cleaver was arrested. building, arrived at scene
When technicians Hussey McCurdy arrest, at about 11:30 area defendant’s already p.m., following his officers off learned from fellow been cordoned and sealed. McCurdy basement, individuals in had been with exchanged gunfire *5 cannisters, and that one of the had from tear the basement fire caught gas As the firemen wеre been killed in front of had building. suspects masks, out the fire and entered wearing putting Hussey, gas McCurdy that no basement. were able to ascertain remained persons Although they basement, of tear gas prevented necessary large quantity fumes, to wait for the and smoke and left basement gas, they visibility to subside. a.m.
At 2 reentered the basement when had partly McCurdy gas It was made to look cleared. was stipulated reentry “primarily” evidence, saw, a the officer and seized and physical photographed burned rifle. The tear remained automatic lingering gas quite partially the 2 were and a.m. strong eyes watering burning. During McCurdy’s cannister, search, which also saw and removed a live tear gas McCurdy a and later was in bomb removal container disposed placed thereupon also removed a few a at the Oakland bomb squad airport. McCurdy as live well some .223 caliber shells. spent cartridge casings search because had not been able conduct Since thorough yet area, secured of continued impaired visibility, McCurdy Hussey their other duties. it off with officer on resumed sealed guard, Later, a.m., about 7 Reed arrived and was to search Sergeant assigned the basement for seen which not been or found any during 8 a.m. About he entered the basement. There still night. three inches of water the floor and the basement approximately charred and with rubble The air remained wholly dirty everywhere. with a residue tear The officer observed sleeve collar smoky gas. above the He water. also recovered jacket protruding murky, opaque two other live and ammunition and other miscella- jackets, expended neous items in the as well as belts. jacket pockets, pocket cartridge that no search warrant obtained for People acknowledge of the basement, entries or searches of the and defendant forcefully their constitutional challenges propriety. of the items seized determining admissibility searches,
basement we well established The Fourth apply principles. I, 13, Amendment to the federal Constitution section of the and article to be California Constitution “The equally guarantee right people houses, secure in their and effects” unreasonable persons, papers, against have said that a search within searches We and seizures. of these constitutional occurs whenever a meaning person’s provisions reasonable violated intrusion. expectation privacy by governmental v. Edwards Cal.2d (People Cal.Rptr. that, 458 P.2d It is further settled of one of a number absence circumscribed such a search is se unreason carefully exceptions, per able if it is not conducted to a valid search warrant. v. pursuant (Mincey Arizona U.S. 385 (1978) 437 98 S.Ct. 2408]; *6 67, 605, P.2d Cook 22 97 583 and cases 130], Cal.3d Cal.Rptr. [148 cited therein.)
One of the to the warrant recognized exceptions requirements arises when of circumstances the conduct a warrantless “exigent” justify search. In this v. 16 (1976) Cal.3d amplifying People Ramey principle context, 276 “In 545 P.2d we stated: this 1333], Cal.Rptr. [127 circumstances’ means an situation swift ‘exigent emergency requiring action to imminent life or serious prevent danger damage property, or to of a forestall the imminent or destruction evidence. suspect escape of There is no litmus test for such whether circumstances determining ready exist, case of each the claim an situation must extraordinary measured the facts known to the officers.” added.) (Italics
303 concedes that the officers’ initial at 11:30 Defendant entry p.m. valid, on the of circumstances existed at that basis which exigent Defendant, however, time. asserts that had cеased to exist exigency the time the 2 8 a.m. and a.m. searches were conducted. To succeeding demonstrate, as we will there exist several bases on which to contrary, that these later searches were continuations of support holding proper the initial warrantless search which was frustrated heavy quantity smoke and fumes. Since the officers a conceded gas, right conduct a full and of the basement at 11:30 we complete inspection p.m., conclude that the searches of those same premises, subsequent occurring within a reasonable time thereafter and based a continued state upon circumstances, were reasonable under the constitution exigent foregoing al provisions.
A
similar factual situation was
to the United
very
recently presented
States
Court
A detective a.m., arrived at the scene of the fire at 3:30 an hour and a half after the embers the fire approximately smoldering had been He entered the without a extinguished. building similarly warrant and examined the for evidence of arson. While in the detective took several of the containers and building pictures containers, interior of the and seized the but abandoned building “finally his efforts of the smoke and steam.” L.Ed.2d at because (Ibid. [56 a.m., the fire both By extinguished, having entirely a.m., At 9 when the left the scene. fireman and the detective *7 from the rendered a smoke and steam had cleared and daylight building informative, detective search of the safer and more scene, without and fire chief returned to the reentered the premises, again warrant, and additional evidence that was intro gathered ultimately duced at the defendant’s arson trial.
The lower court while that a Tyler, agreeing building burning constituted a sufficient to render a warrantless reasonable exigency entry constitutional, held nonetheless that “the exigency justifying ends, warrantless a fire and the need to a warrant entry fight get begins, with the of the last flame.” at (Id., L.Ed.2d at dousing p. 498].) p. [56 Court, however, such a Supreme characterization rejected of the narrow,” circumstances as exigencies “unrealistically explaining: determination of the fire’s its “Prompt origin may necessary prevent recurrence, as the detection of such as through dangers faulty continuing or a defective furnace. Immediate also be wiring investigation may intentional or accidental destruction. necessary preserve from And, course, duties, the sooner the officials their less will complete be the interference with the efforts of subsequent privacy recovery the victims.” added.) L.Ed.2d at italics (Ibid. 498-499], pp. [56 reasons, court no “For these need warrant officials high explained: to remain in a the cause of a for a reasonable time to building investigate blaze after it has been (Ibid. L.Ed.2d at extinguished.” Moreover, court also circumstances” concluded “exigent an immediate search of of a fire warrantless the scene justifying similarly continuation of the search in that case the later justified hours, failure officers to obtain warrant. morning despite case, The court “On reasoned: the facts this not we do believe that a warrant was for the re-entries necessary early morning following [the As the fire was Chief See his assistants day]. being extinguished, darkness, their but hindered began investigation, visibility severely steam Thus and smoke. at 4 a.m. and returned after they departed shortly their Little would have continue daylight investigation. purpose served their to remove doubt remaining building, except any about the of the warrantless search and later seizure that same legality circumstances, these Under we find entries morning. morning were no more than actual continuation of the and the first lack of a warrant not thus did invalidate the seizure of evidence.” (Id., resulting italics 499], added.) at p. observes,
As the dissent herein did court invalidate a high search conducted several after the fire weeks had subsequent evidentiary however, dissent, occurred. to the this search was Contrary subsequent evidence, held invalid because it was aimed at but solely gathering because it occurred after As court long exigency passed. Tyler however, “The entries after explained, occurring January clearly *8 (Ibid. detached from the initial and warrantless exigency entry.” at p. The rationale is case. The 11:30 applicable present Tyler fully smoke, search fumes and tear The was thwarted residual gas. p.m. by a.m., short until 2 a.m. and 8 necessitated darkness relatively delays by cannot be deemed continuing impaired visibility, constitutionally or unreasonable under all the circumstances in this case. These improper circumstances, all of which were known to the officers the two conducting searches, included the Two officers had been challenged following: ambush, wounded and a violent battle had ensued. Defendant gun Cleaver’s had been killed in an with colleague exchange gunfire had been set on fire tear police. subject building by exploding gas cannisters; and ammunition have dangerous weapons, explosives might assailants, armed, remained inside. The number of whether unknown; their then location and identities were all the basement might have contained evidence to the immediate leading apprehension short, tense, situation was volatile and remaining suspects. hour, serious business full of and confusion. uncеrtainty Considering circumstances, entries, caused place general delayed search, officers’ to conduct a were constitu- physical inability thorough tionally permissible.
As in a.m. and 8 a.m. entries were the need to Tyler, justified by evidence threatened with destruction fire or water in the preserve basement. been fired from the basement and flushed upon Having having out their assailants the use of tear it was reasonable for the officers gas, to believe that the basement have contained evidence may identifying attackers, their or contraband such as or other containing illegal guns had been Water burned. weapons. building partially damage The initial 11:30 was aborted because of obviously heavy. p.m. entry the officers’ to see. or records in the basement could inability papers Any have been burned or rendered the water. or Wooden illegible by plastic obliteration, materials could have been burned or been in danger in fact the automatic rifle which was seized a.m. search had been burned. or ammunition belts containers already partially Similarly, as well live ammuniton well have may danger burning view, combination, In our these circumstances exploding. physical сreated an entries. warrantless exigency fully justifying burned,
Furthermore, the basement itself was because partially threatened. The fire and its contents was the building very safety *9 caused tear were into cannisters which lobbed the by exploding gas basement The threat to the police. continuing building by amply a fire or determine if the was if other justified reentry continuing threats to the existed. building
Defendant that the for officers’ stated reason was to argues reentry evidence, search for rather than to or its contents. protect building all, above, First as we have a warrantless search to explained evidence from destruction is if conduct- preserve possible entirely proper Second, ed under circumstances. the record herein shows exigent only that reason was a search for evidence. there “primary” Obviously, existed other reasons to the of the and its relating general premises safety contents which had been to substantial fire and water subject damage. 2 a.m. well did, was rewarded for the in inspection police actuality, a find live tear cannister which fire had set to the gas type initially We think it reasonable to conclude that it remained threat. It building. removed, box, in a bоmb safe rendered placed disposal by bomb squad. our conclusion that of the circumstances
Finally, exigencies here, the warrantless entries and limited searches in is justified question reinforced the fact aware that the residence police was owned an innocent third and not building apparently party, or defendants crime. In this case defendant suspects intruder asserts the of the owner. As we have vicariously privacy rights noted, the reason to ammuniton police suspect weapons, ample other items tear cannisters) perhaps potentially dangerous (e.g., gas remained in the basement. Under such it circumstances fire-damaged that an unrealistic absent owner would either wholly presume property desire, or until a search warrant was expect, police postpone, obtained, onto the for whether a search for entry protect property. insists, however,
Defendant failed have to show that it for the to obtain a warrant to the 2 a.m. and 8 impossible police prior a.m. entries. in chambers, Viewed from the comfort our it hindsight, to fault secure warrant might possible police failing however, hours of 1968. Such a April early morning perspective, the acute realities and which the faced on ignores dangers night and fire 28th Street was one question. shooting extensive, incident series of criminal explosive, continuing after defend- continued for additional The search incidents. participants officers were and available undoubtedly ant had captured *10 9 Cal.3d (1973) v. Sommerhalder (See in that endeavor. employed involved The time 289, P.2d 289].) 508 290, period Cal.Rptr. [107 when a and magistrate a late Sunday morning early night Saturday We have no available. concluding have been difficulty not readily may to authorized were a faced with that emergency, genuine police, the situation. methods to with reasonable cope emergency employ 2 in this case discloses sum, of the circumstances the totality reasonable, 8 a.m. warrantless searches a.m. and being impelled by the 11:30 aborted search. circumstances, as extensions of p.m. exigent of searches is the course both the evidence seized during Accordingly, admissible at defendant’s trial. Toyota
2. The Search Hilliard, Cleaver, was arrested of David Another codefendant Street, to the Allen 1226 28th which residence of Bertha at adjacent shootout. took shelter and Huttоn house in which Cleaver during on a black leather arrest, Allen found two After Hilliard’s Ms. strap keys them he had been in the bedroom where on the dresser hiding, gave for a to be noted to officer who appeared Toyota Motor Vehicles asked the The then automobile. Department taken of the arrestees to all cars (DMV) eight registered any identify that Cleaver’s codefend- that the DMV check revealed into night; custody Wade’s Wade was as the coowner ant Wendell Toyota. registered 7 on an Oakland hours of located April early Toyota initial from the scene of the 37 blocks street approximately public to the Oakland Police was towed on Union Street. vehicle shooting Ms. Allen had lot. At 8 a.m. that keys morning Department parking automobile and several the trunk of Wade’s found were used open as evidence. This were seized as well as some ammunition weapons above, first search, was conducted without like those described obtaining vehicle. the consent of defendant or the owner warrant or a search search was Defendant contends that automobile illegal but, more of the failure to obtain a warrant because fundamentally, beеn obtained for want of warrant could not have because a probable cause. automobile —whether
It the search of an axiomaticujthat is cause. or not —must be to a warrant supported by probable pursuant 308 v. Dumas Cal.3d
(People P.2d Cal.Rptr. v. 1208]; Co. 391 U.S. Dyke Taylor Implement 538, 543, 88 S.Ct. We noted that cause exists to probable recently conduct a warrantless automobile search “where an officer is aware of facts that would lead a man caution or believe, ordinary prudence entertain, of conscientiously strong suspicion object search in to be searched. particular place (People [Citations.]” Dumas, Was that 885.) standard met? supra, recital facts fails foregoing suggest presence the automobile from towed “strong suspicion” street *11 contained to seizure. The any specific property lawfully subject People assert that the circumstances under which the obtained police keys indicated Hilliard tried to “dissociate” himself from them and had thus demonstrated fear his that the car which the fit would link keys him to the crimes with which he was is charged. argument Wade’s automobile was seized unpersuasive. before it was known that the found at the of Hilliard’s arrest fit that keys place particular Toyota. Furthermore, the automobile was not found in the of Hilliard’s vicinity arrest, or even was located a substantial distance reasonably nearby —it a different away wholly part city. conclude,
We that the trial court ruled accordingly, illegal correctly automobile, issue, search here in the evidence suppressed resulting therefrom. 23758,
In S.F. the alternative writ discharged peremptoiy 23759, writ is denied. In S.F. let a writ of mandate issue in peremptory accordance with this opinion.
Tobriner, J., Clark, J., Manuel, J., concurred. MOSK, J. —I that the search of the automobile was agree Toyota and that the fruits of that search illegal suppressed correctly dissent, however, I trial court. from the holding two searches the basement at 2 a.m. and a.m. 8 7, 1968, were under the circumstances” April justified “exigent exception to the warrant of the Constitution. requirement
I As the it {ante, is settled 302), majority acknowledge absence of one of a few circumscribed the search of a carefully exceptions
309
home
enforcement authorities is unreasonable
se
law
per
private
valid
unless it is conducted
search warrant.
v.
pursuant
(Mincey
385,
290, 299,
(1978)
L.Ed.2d
after was for evidence of the battle is searching physical gun amendment to the offered strengthened by subsequent stipulation, defense counsel and that Officer agreed prosecutor, reciting entered the basement to look for evi- McCurdy “primarily physical dence.”2
Thus the actual motive of both for officers their entries onto the to the was premises, according testimony stipulations parties, for search and seize battle and its simply physical gun is, all, This after what one would officers to perpetrators. expect police for do: detail, Reed was to the homicide example, Sergeant assigned the arson detail. But their evidence, natural, desire to find such while not an circumstance” their failure to obtain a obviously “exigent excusing search warrant for the same very purpose.
Rather than did not sustain their burden of holding People however, the shoulder the justification, task themselves. Seizing on defense counsel’s remark that the of Officer purpose McCurdy’s entry evidence, search for “primarily” physical majority speculate on for both length searches: hypothetical “secondary” purposes assert that there existed other boldly reasons” the entries “Obviously, (ante, 306), and some four оr five (ante, propose 305-306). fatal pp. weakness of this is that it is devoid of in the record: analysis support whether lack evidence or through failed to ineptitude, prosecution at the that either Officer prove Reed in fact hearing McCurdy Sergeant acted of the theories now urged adopted by *13 majority.
It is settled a series of decisions of this court absence of by such we will not entertain the claim of People’s justification: “The of the rule —to deter unreasonable searches purpose exclusionary and seizures law enforcement officers—would be frustrated if by clearly the courts were a search conducted on unreasonable required uphold because the authorities grounds simply prosecuting belatedly managed devise an alternative on which the could have theory arresting officer acted if he had known of it. with the fundamental reasonably Compliance of the Fourth Amendment is not a to be won guarantees game by counsel, inventive but a of law practical, day-to-day responsibility enforcement as a warrantless arrest or search personnel. just Accordingly, 2 In fact Officer was accompanied Officer Martin who McCurdy by Hussey, testifiеd, deceased at the time of the Because the latter never I shall refer for hearing. sake of to Officer conduct as if he acted alone. simplicity McCurdy’s
311 of which officer at the cannot be facts unaware justified wholly by so also it cannot on theories thereafter [citations], time be justified invented for the courts (Italics reviewing consumption [citations].” fn. Court 7 Cal.3d omitted.) (1972) (Simon) original; (People Superior 186, 837, accord, v. Miller 1205]; P.2d Cal.Rptr. People [101 7 Cal.3d 496 P.2d Mestas v. (1972) 1228]; Cal.Rptr. 537,542 729, 498 Court Cal.3d P.2d977].)3 Superior Cal.Rptr. Indeed, of the on file herein it that at examination briefs appears upon i.e., for the one of the reasons that least propose searches — or water —was not evidence that become fire damaged preserve might by even Such violates People. speculation suggested for that the burden to show a warrantless principle justification general court, search is on the this rather than on it also violates People rule of Simon and its As Tobriner Justice specific explained, progeny. for court in Mestas v. 7 Cal.3d Court (1972) writing Superior supra, 537, 542: Simon for search invented “Although speaks justifications authorities, Simon’s to the prosecuting argument applies equally initiation of such new for search court justifications reviewing court, itself. level, cannot a new invoke based appellate theory that the officer in the search could upon premise arresting making have acted when the has reasonably upon particular ground prosecution failed to amake factual at the that the showing original hearing arresting did officer act (Italics upon ground.” original.) Here the “failed make a prosecution factual at the wholly showing that either Officer original hearing” Reed acted McCurdy Sergeant now invoked. It follows emergency grounds “ cannot be heard to on such ‘for it would be a rely grounds, logical courts to asked to determine the of an absurdity reasonableness officer’s belief existence . . . unless it [in exigent circumstances] ” were first established that the officer did entertain such belief.’ (People Tobriner, v. Miller 7 Cal.3d J.).) supra, (per *14 3 Inthe cited cases we this rule in belated claims that officers applied reviewing police to probable cause arrest or search without warrant because believed the they defendant had committed an offense or was in of contraband. The reasons possession 24, (see there stated also v. (1971) Court 21 Agar Superior Cal.Rptr. Cal.App.3d [98 context, i.e., 148]) are persuasive no less in the in present belated claim that reviewing the officers had to enter and search a without warrant right because dwelling 888, (See believed there were circumstances.” also In re C. 21 “exigent Cal.3d Tony 893, fn, rule 582 P.2d the to claims that a Cal.Rptr. Simon [extending 957] or the to conduct an detention he officer has because right investigative stop activities].) the is involved in criminal defendant suspects to seem with the Simon rule attempt compliance that the circumstances now “were to invoked known
lamely remarking to 305.) the officers” at the time. If this is intended as a {Ante, reference p. our statement in 16 Cal.3d Ramey Cal.Rptr. 629, 545 P.2d that “in each 1333], case the claim of an extraordinary situation must be measured the ante, facts known to the officers” (see the 302), p. is reliance the from misplaced. the quoted passage Ramey we opinion reiterated merely that each general case principle on justification must be decided facts, on own emergency grounds its at the least the facts veiy the lack of a assertedly warrant must excusing have been known to the officer at rule, the time. The Simon however, is the next must step have officer analysis: actually known the circumstances on decision, which he to claims have his based he must also to those at circumstances testify suppression hearing; otherwise court cannot itself know what the officer’s true reviewing were, reasons to be led search might uphold unjustifiable simply because counsel for to devise an People “belatedly managed alternative which the officer could have acted theory arresting if he had known of it.” at 198 of 7 (Simon, Cal.3d.) Thus p. reasonably was not intended to rule in Simon shown Ramey modify way any —as fact than that more two after we Simon years applied Ramey fn. (See ante.)4 C. Tony
II if Even with, Simon rule had been the claimed complied “exigent circumstances” remain to warrantless searches at inadequate justify a.m. and 8 a.m. 302), we defined circum- {ante,
As majority recognize “exigent mean stances” to “an situation swift action Ramey emergency requiring imminent or to life serious prevent danger damage property, forestall the imminent of a or destruction of evidence.” (16 escape suspect Cal.3d We thus identified four risks that doctrine 276.) grave life, of a seeks to avoid: seriоus escape danger property, damage its and destruction of evidence. It true that on face suspect, “imminent,’’ it these but definition the first and third of as qualifies only need not be a wilful to conclude the other two risks would be misreading from the same as We “imminent” well. refrained simply repeating reasons of the intent one sentence obvious four times in style; qualifier Simon, C, I 4 I I can with some confidence on Ramey, Tony believe speak authored for the court all three cases. majority opinions *15 of whole to as a that each of the risks passage require quoted order to 4, invoked be “imminent” in fn. ante.) (See justify exception. of of the so, course, This the entire raison d’etre is because emergency is the for “swift action.” The courts exception recognize necessity for a warrant entail a certain even procedures obtaining ordinarily delay, Code, with modem methods of communication. Pen. (See §§ 1528, search warrants], subd. (b) search war- [telegraphic [telephonic cases rants].) most is of a that members free delay price society are to for the of their “the detached willing pay protection privacy by of a neutral is a which more reliablе scrutiny magistrate, safeguard searches than the of hurried a law against enforce- improper judgment ment officer in the often of out ‘engaged competitive enterprise ferreting ” (United crime.’ 538, States v. Chadwick U.S. L.Ed.2d [53 547, 97 S.Ct. But a few in instances the is deemed too price high: when the is result in a to that is to harm believed delay likely society loss be outweigh corresponding privacy, may permitted to act without authorization of a is the This so-called prior magistrate. circumstances” warrant “exigent exception requirement. must however, claim of satisfy
Like all such
exigency
exceptions,
to the
First,
because
several essential
weight given
preconditions.
United States
the framers
the Constitution (see, e.g.,
right
privacy by
Chadwick,
v.
pp. reason, It is for this example,
sufficiently grave. definition from we limited warrantless intrusions above-quoted Ramey for the to cases of of “serious protection property danger damage (Italics added.) property.” the risk of the harm must be
Secondly, substantial: actually occurring the constitutional is not the threat of protection an outweighed by injury, severe, albeit that is Thus the not could highly unlikely happen. a warrantless into a housе a thunderstorm justify on the entry it that if were struck theory evidence on the by lightning incriminating be risk might destroyed. Finally, emphasized Ramey must words, be imminent. In other must not be injury likely occur, it must be to occur soon—in before a likely very particular, warrant can be we obtained. As concluded in our unanimous decision Smith 7 Cal.3d 496 P.2d Cal.Rptr. “the 1261], must to swallow the rule: in the exception permitted is, absence of a true imminent and necessity showing —that *16 life, health, substantial threat to or property constitutionally guaran- —the teed must added.) (Italics prevail.” right privacy mind, us examine the circum- With these let “exigent principles the warrantless searches at 2 stances” support proposed by majority task is made difficult a.m. and a.m. The by tendency majority combinations, circum- then and lump repeat varying together, ante, relied their claim is (See 305-306.) stances upon. pp. Perhaps primary the entries “were need preserve justified by threatened with destruction fire water the basement.” {Ante, by evidence is one of the listed in 305.) Destruction of p. certainly dangers circumstances, themselves definition of exigent Ramey majority But on the face of the record it {ante, 302). appears emphasize clearly the risk was neither substantiаl nor imminent. that in the case at bar with, To fire” for there was no “destruction begin danger by the 2 reason that the time the officers conducted a.m. and simple in the a.m. searches.the fire basement had since extinguished. long Indeed, the that when Officer first arrived prosecutor stipulated McCurdy earlier —the scene at 11:30 two and one-half hours p.m. i.e.,— out the fire” their duties of and firemen were already “completing putting neither were “in the proved mopping up process.” to finish the nor claim now that the firemen failed job hearing contend there was two and one-half hours. Nor do the People ensuing the fire have remained risk whatever that smoldering might itself thereafter. On the somehow rekindled large quantities contrary, Reed testified into the water had been building: Sergeant poured he had to seven or hours later some when he entered eight premises left about three inches “the fire because department proceed carefully fire” To of “destruction on the basement floor.” water posit danger and seizure the laws of search in such circumstances is defy but also the laws chemistry rationality. it is to their bow: however, adroitly, have another string
The majority, remained on have cannister tear might that an unexploded gas suggested started a new itself and detonated later have might that the fire no than twice us less remind Thus blaze. stress 305-306); tear cannisters” {ante, pp. they caused gas by “exploding found a live “of cannister Officer the 2 a.m. search McCurdy that in 306); and {ante, fire to the which had set building” type initially it a threat” because was must have “remained that the cannister conclude safe a “bomb and rendered in a “bomb box” squad” removed disposal *17 306). The inference we are to (ante, draw is that expected obviously other such “threats” existed and hence the searches. justified First, there are in several flaws this scenario. it
Unfortunately, major scene, that numerous been to had called the implies although firefighters the of a further blaze somehow became a suppression prevention Next, from function. the of one tear presence unexploded gas cannister on the it a substantial likelihood that extrapolates others, a there were total lack evidence as to the of. despite frequency most such And the misfirings.5 important, majority’s theory blandly that a assumes tear cannister that to fails the normal gas ignite it is after launched is to off” itself hours later sequеnce likely “go by without human intervention. There is not the evidence in the slightest record to this Reed did so not support assumption: Sergeant testify, the did not offer to so Nor can this court prosecutor stipulate. presume fill the if tear cannisters are gap: such gas actually predisposed I combustion” —which “spontaneous doubt —it is so not universal- surely known or as to be a ly indisputable notice. proper subject judicial Code, §§451, (Evid. subd. (f), subd. (h).)6 that fact the cannister found on the scene was a disposed by bomb does hot as seem squad prove assumption, majority most, At believe. tends to that show such a device can be precaution if handled untrained with I which dangerous persons by proposition —a have no But even if we assume the likelihood of more quarrel. cannisters the risk of unexploded premises, intermeddling by nil. was This so because of several further facts to which laypersons battle ended (1) prosecutor stipulated: gun approximately p.m.; of the two (2) time, who from the basement at that one persons emerged arrested; was killed and the other was in the course of his initial entry a half hour later Officer saw there no other McCurdy persons basement; and (4) that time the entire area had been off “cordoned by and sealed” In such circumstances the risk by police.7 basement, new fire this watersoaked whether from internal or 5 The even the 2 a.m. praise intrusion as “well rewarded” finding of by (Ante, 306.) unexploded cannister. I it settled had that a search be thought long “cannot it what turns justified by up.” (People Brown 45 Cal.2d P.2d 528], cited.) and cases such notice would also be invalid failure afford 6 Any judicial the parties it, Code, (Evid. “reasonable to rebut §§ law. opportunity” required subd. 450s subd, (c).) (a), 459. 7 Sergeant Reed confirmed his when he arrived on scene he found testimony other officers on “To location seal it off.” duty guard hit causes, no of a was more substantial than chance direct external above. bolt in the thunderstorm lightning hypothesized risk that evidence would there destroyed Nor was greater any there amount established sure, large To be water. however, is a failed What on the prove, water premises. been could have evidence that likelihood there substantial fact, i.e., that (1) already affected by adversely *18 in course of the the into water the building poured damaged while, a further immersion not survive fire and could the extinguishing Officer the was that was The sole obtained. point, warrant proоf ammunition, a tear cannister rifle, some found gas McCurdy in turn found several search, Reed cartridge jackets, his Sergeant ammunition, But these are all belts, more and a few articles.8 personal items, durable, and none would have water-resistant reasonably in situ for the time or even remaining significantly damaged by destroyed a warrant. needed procure evidence, more water-soluble the once proof any
Lacking majority basement,” or resort unbridled records speculation: “Any papers . “could have been . . rendered the water.” the illegible by say majority, from while it was Yet 305.) (Ante, probable prior gun substantially p. and his would battle defendant have taken companion weapons ammunition into their basement there no was similar basis refuge, would also have carried or incriminating inferring they “papers so, there neither records.” Even were have done they likely in cold that a few hours’ immersion nor testimony establishing stipulation make water is the contents of a substantially “illegible” piece likely whether it be or handwritten in or in printed, paper, typed, pencil ink of three found ink—such ordinary ballpoint pens fact, Reed. Common teaches experience, contrary: only Sеrgeant so a time. And if so-called “washable” inks dissolve in short or had been records” invented hypothetical “papers majority ink, no have in such there is their contents would written showing survived initial fire event. department drenching by short, risk of on this record can reach their desired majority fire or water” destruction upon only by piling assumption “by vio- conjecture. assumption, conjecture upon technique manifestly lates both the letter and the of the spirit emergency exception warrant clause. latter were a nail broken pair sunglasses, 8 The articles clipper, cigarette lighter, brushes, and three ballpoint pens.
two We need over the circumstances” linger remaining “exigent as each for the reasons. proposed by majority, inadequate foregoing Thus the assume that “live ammunition well have been in majority may But there was no 305.) such (Ante, danger burning exploding.” p. because the fire was out. The concern for “the danger majority profess and its 305), contents” (ante, but safety very building p. again threat is fire or presumed seem to fear that an explosion. majority innocent third such as the owner of the house in party question might have been hurt ammunition and other by “weapons, perhaps potentially items cannisters)” tear left on the scene. (Ante, 306.) dangerous (e.g., gas But the admit that the had removed the owner from the house for hours (ante, 301), reasons several earlier and the safety of other in view of the fact that the possibility interlopers negligible had sealed off the entire area. *19 without in the record is the Similarly multiple support majority’s that other who in the earlier ambush of speculation persons participated the officers on Street Union still have been and “the police large, might basement have contained evidence to the immediate might leading It (Ante, such is 305.) apprehension” “remaining suspects.” that six were the initial arrested after undisputed confrontation, persons shortly
and two more —defendant and his companion —took in the basement. But there is no evidence whatever to refuge temporary the that other than these support assumption persons eight participat- battle; testified, ed in the ambush or no so no witness counsel ensuing gun so stipulated.
isIt true that in circumstances the hot of a appropriate pursuit fleeing felon a warrantless under the justify may entry exception. emergency (Warden 387 U.S. 782, 787, 298-299 87 Hayden 1642]; S.Ct. v. Smith Cal.2d People Cаl.Rptr. 382, 409 P.2d But in each of those the cases police closely identifiable, flesh and blood criminal whom pursuing specific, they believed was on the and would unless reasonably escape they Here, contrast, acted without delay. majority conjure phantom air; out of thin and because such were nowhere be suspects specters seen further that in from premises, majority conjecture fleeing hideout their defendant and his left behind the companion conveniently names and addresses these Yet evidence of incorporeal accomplices. no more than of the evidence of identity part ordinarily guilt —and search for evidence of a warrant. To avoid this dilemma the guilt requires to force the case back into the mold attempt majority “emergency” not that one last assume the basement have speculation: might only contained also evidence but that such suspects, identifying phantom result in their would “immediate these apprehension.” Surely fertile too are insubstantial figments majority’s imagination fundamental the Constitution. outweigh right privacy protected by
Ill outset, -As noted at for a of harm to risk preconditions satisfy it must but imminent: be substantial emergency exception occurred before a must show that harm have likely burden, could fail to this warrant be obtained. sustain Again they in the record unfounded fill conjec- majority glaring gaps agáin ture. 8 a.m. were conducted a.m. and searches
It is undisputed and the fire hours, after the some 3 and stopped shooting respectively, made no effort out, of time the period put throughout “Viewed warrant. acknowledge majority reluctantly get chambers, it fault from comfort of our possible hindsight, might to secure hours of a warrant morning failing early so 7, 1968.” to do for two 306.) But the (Ante, decline April reasons, both demonstrably inadequate.
First
it is
the
and
claimed
fire were
of a
shooting
only part
that even after defendant
and
was
series” of criminal incidents
“continuing
(ante,
“The search for additional
continued”
307).
p.
captured
participants
(cid:127)
above,
As
this assertion is
in
explained
wholly
support
lacking
record. The
then cite
Sommerhalder
Cal.3d
majority
People
Sеcondly, to seek noting period during People a warrant “awas late and an Saturday night early Sunday morning,” assume that at such times “a not have been magistrate may available.” {Ante, 306-307.) But the warrant clause readily of the state pp. and federal Constitutions is not automatically suspended every evening Rather, all on weekends. various have day been devised in procedures our trial courts for conducting necessary judicial including business — issuance of search such There is no periods.10 showing warrants — —and do claim—that such again was not in People procedure at effect the time and the absence such a place question, showing, I cannot believe that a search warrant was unobtainable a Saturday in a such as Oakland.11 night large metropolitan community Even I less can believe the did not have ample opportunity for a warrant on the when the apply following morning, above, secured for hours. As out least totally pointed by midnight over, battle arrest, defendant was under his gun companion dead, out, basement, fire was there nowas one left in the and the area was sealed Law enforcement authorities were police. obviously situation; full command оf the no reason suggested by could not have the status majority why preserved quo desired, next for as thus have for warrant day long applied Indeed, at their convenience. a.m. search complete by ruling *21 the trial herein but found the illegal, judge impliedly necessarily did have the to obtain a warrant for that intrusion. The opportunity 10 Thus the trial are although courts closed from noon to ordinarily “Every Saturday (id., 6700, § Code, 6702) (Gov. § all midnight” and (a)). subd. day Code of Civil Sundays 134, Procedure section subdivision authorizes them to be specifically open at such times “For the exercise of the powers of in a . magistrate criminal action . . .” (See also Pen. Code, (a), 1973.) § subd. in added 11 In 1968 Alameda had 20 superior court at least County judges, court municipal Cal., and 2 judges, (Judicial court justice judges. Council of Annual Rep. pp. 195, 246.) In addition two Court Supreme and several justices Court of Appeal justices resided Alameda All Code, were County. 808) to act as qualified (Pen. magistrates § (id., § and to issue search warrants 1523 et seq.). it is of that fact without unsupport- explaining why finding
majority reject who record; local so ruled cannot the the ed yet they deny judge comfort of our chambers.” much to the scene than we “the closer IV the as an for their additional holding, ground Apparently initial at 11:30 that since Officer warrantless entiy p.m. argue McCurdy’s doctrine, the the 2 a.m. 8 a.m. searches was lawful under and emergency or “exten were also lawful because “continuations” merely on the latter the sions” For proposition majority rely heavily entry. the United States Court decision in Supreme Michigan Tyler 486, 98 S.Ct. (Ante, 303-304.) U.S. 499 pp. majority’s 1942]. however, is both It is also reading Tyler, superficial incomplete. erroneous, it will fact for close be seen thé decision in analysis the of this dissent. supports position a blaze of unknown broke out before midnight Tyler origin shortly a.m., it had At 2 after
in a furniture store defendants. operated control, Fire Chief arrived under See “to determine been brought arson —two evidence of of the fire. He was shown possible cause” called Police Detective Webb. containers of flammable liquid —and store, but the interior of of the containers and took latter photographs then Chief See of smoke and steam. his efforts because abandoned finally evidence, to “to further see if there was looked any building through a.m., the fire had was.” At 4 after of the fire what cause determine Chief See had left premises, firefighters extinguished At 8 with the contаiners. o’clock Webb also and Detective departed with Assistant Chief See reentered next building briefly morning Somerville, of all fires” was to determine whose Chief job “origin Webb, and returned at a.m. with Detective Somerville jurisdiction. marks additional evidence arson —burn a search revealed suggestive tools, entered fuse trail. After obtain building they again leaving also At that time Somerville seized the evidence. incriminating this that showed how rubble “for other searched the any signs no entries. There was warrant these fire was caused.” Hoffman, also officer, a state weeks later Several Sergeant incriminat- a warrant and seized additional without entered the premises over introduced evidence was All material. objection foregoing *22 ing arson, and of to commit were convicted The trial. defendants conspiracy all Court held that The Michigan Supreme appealed. they
321
obtained,
two containers seized in the initial
was
entry
illegally
except
It is this seize language Tyler majority upon support 8 a.m. a.m. and searches in the case at bar. But in so doing draw the because overlook wrong analogy Tyler importance 12 Inso the court the state’s declaring, rejectéd contention there is no legitimate in a expectation claim also privacy fire-gutted building made herein. —a
322 the actual of the case—and miss a distinction critical disposition thereby made the In fire court. the officials conducted their searches high Tyler by the the the after incident for same as their morning very purpose i.e., initial to determine the cause of the blaze. It entry night: of of because this court ruled those identity purpose high searches were needed no justified by original emergency warrant.13 then did court with the Why agree Michigan Supreme Court that the were entitled to a new trial? 512 (Id., defendants at p. [56 of L.Ed.2d at Because the admission of 500].) evidence p. incriminating Hoffman in his of obtained warrantless searches Sergeant initial entries Chief See Detective had Webb premises. given them of the cause believe source fire was arson probable committed these defendants. Hoffman was an arson investi- Sergeant Police, State and was sent to the gator Michigan apparently in order to evidence of that crime: the court recited that premises gather his several “for warrantless intrusions were conducted the sole purpose ” ‘of [i.e., (Id., evidence.’ at making investigation seizing arson] L.Ed.2d 503 at The court held those entries were 494].) p. p. “clearly [56 from the lack of detached initial and hence were invalid for a exigency, L.Ed.2d Because evidence thus (Id., 499].) warrant. atp. atp. [56 L.Ed.2d a role at trial” at at obtained substantial (id., p. “played [56 not of conviction could stand. 494]), p. judgment “if the stated that its court investigating Explaining holding, that has find cause to believe arson occurred and officials probable not evidence for a further аccess prosecution,” gather possible require a warrant a warrant but obtain is a upon only only required “they may for cause to searches evidence traditional showing-of probable applicable at at Hoffman’s 500].) crime.” (Id., Sergeant thus occurred a warrantless entries were because simply illegal in time other than the because his purpose emergency; they illegal was not to learn the of the fire—he cause already searching to believe it was arson —but “to ample grounds gather those could not deemed searches possible prosecution.” Accordingly, and were for lack of a warrant. “continuation” the first invalid entry, reticent discussing case at are bar strangely Here, there as in its is clear. actual Yet relevance Tyler, holding Tyler. course, time, was also essential. court few emphasized 13 Proximity “Thereafter, entries and warned additional the entries question, hours separated to the the fire must be made warrant pursuant cause of procedures investigate (Id., at p. searches. L.Ed.2d at p. administrative [Citations.]” governing *24 was an initial warrantless intrusion under permissible emergency the 11:30 Officer Because defendant exception: p.m. entry by McCurdy. not did called question entry, prosecutor upon justify it; however, circumstances, Officer could have lawfully McCurdy entered at without warrant time for the limited of purpose an immediate of search for other or for conducting suspects victims. 385, v. Arizona (See, U.S. e.g., Mincey supra, 299-300]; Sommerhalder 9 Cal.3d supra, above, 305.14 But as noted that Officer prosecutor stipulated McCurdy fulfilled that initial his when he saw there was purpose during sweep, nor neither victim left at the scene. The later entries Officer suspect Reed, like those of Hoffman in McCurdy Sergeant Sergeant Tyler, were undertaken for the different of of purpose very gathering crime committed arson; here, at that location —in assaults with a Tyler, on therefore, as in weapon a warrant for deadly police. Again Tyler, the entries was “a traditional required, supported by probable showing cause to searches for evidence of crime.” U.S. (436 applicable warrant, L.Ed.2d at such a were searches Lacking illegal under the itself. authority Tyler conclusion, I am to observe that impelled majority opinion illustrates cases, the maxim that cases, controversial like hard
regrettably sometimes make bad law. As а we all that courts principle readily agree must beware of crime the defendant allowing notoriety effect, subtle, have however their I decision. Yet wonder if we would have had as much trouble of this case if it had involved disposing an obscure of robbers in a routine shootout with pair caught police, rather than Cleaver and the Black Panthers Eldridge well-publicized confrontation the turbulent of the 1960’s. I that we days urge only the same constitutional to this apply defendant that we would principles with crime —and that we decide any person this case on charged have, we record not on the record conjured up by majority. Bird, J.,C. concurred. and real in interest Cleaver for a application petitioner party Newman, J., was denied 1979. did not rehearing July participate Bird, J., Mosk, J.,
therein. C. opinion application should granted. fire, 14 His was not to purpose learn the cause of the at the scene knew it everyone
had been started tear cannisters lobbed into the gas basement by besieging police forces. Arson was out of the question, as there was no reason to believe that obviously defendant and his set fire to their companion own deliberately place refuge.