People v. Hua

Opinion

Two Pacifica police officers observed several individuals smoking marijuana in an apartment rented by appellant John Hua. The officers entered, without either a warrant or consent, and eventually discovered growing marijuana plants and a cane sword. Appellant was originally charged with cultivation of marijuana (Health & Saf. Code, § 11358) (count 1), possession for sale of marijuana (Health & Saf. Code, § 11359) (count 2), and felony possession of a cane sword (Pen. Code, § 12020, subd. (a)) (count 3).

In the trial court, appellant challenged the police entry and the subsequent search of his apartment in a motion to suppress the evidence seized by the police. (Pen. Code, § 1538.5.) The trial court denied the motion, concluding the entry was justified by exigent circumstances. Appellant then entered a plea of nolo contendere to cultivation of marijuana (Health & Saf. Code, § 11358) and misdemeanor possession of a cane sword (Pen. Code, § 12020, subd. (a)). On appeal, appellant challenges the denial of his motion to suppress (Pen. Code, § 1538.5, subd. (m)). We reject the People’s contention that exigent circumstances justified the warrantless entry of appellant’s home. Under Welsh v. Wisconsin (1984) 466 U.S. 740 , 753-754 [ 80 L.Ed.2d 732 , 104 S.Ct. 2091 ] (Welsh), a finding of exigent circumstances is categorically precluded when the only crime the police are aware of when they enter a residence to arrest the occupant and/or seize contraband is possession of no more than 28.5 grams of marijuana.

Background^[1]

At 11:08 p.m. on March 27, 2005, uniformed Pacifica Police Officer Patrick Mostasisia (Mostasisia) and Pacifica Police Corporal Darci Mix (Mix) received a dispatch report regarding a “noise disturbance” at an apartment building on Talbot Avenue in apartment No. 308 (the apartment). As the officers approached the apartment, they noticed the “distinct odor” of burnt marijuana coming from it. Mostasisia knocked on the apartment door and awaited a response.

From her vantage point, standing in a common area in front of the window next to the front door of the apartment, Mix looked through the open vertical blinds and saw several people socializing in the living room area. Mix saw

one person put an object to his lips and smoke from it. Based on her training and experience, Mix testified this conduct was consistent with someone smoking marijuana.

After Mostasisia knocked repeatedly for about 45 seconds, appellant, who resided in the apartment, answered the door. Mostasisia and Mix stood right outside the front door on a walkway common to all apartments on that floor. When Mostasisia advised appellant that they were responding to a noise disturbance call, appellant said he had been using a drill earlier that evening. When Mostasisia asked appellant about the marijuana odor, appellant denied he was smoking marijuana, implying there might be others who were smoking marijuana in the apartment. When Mix told appellant she saw someone smoking what appeared to be marijuana, appellant denied it. Because of the amount of smoke evident inside the apartment, the officers told appellant they were concerned about the destruction of evidence and asked for consent to enter. Appellant did not want the officers to enter. Appellant responded “no” when Mix asked if he had a medical marijuana card. When the officers again asked appellant for his permission to enter, he stepped aside and allowed them in. On cross-examination, Mostasisia conceded that he made it clear to appellant that the officers wanted to enter the apartment and that in his report he stated, “[Appellant] succumbed to our request and stepped aside.”

As the officers entered the apartment, Mostasisia first noticed the smell of marijuana and a cloud of smoke in the living room. Aside from appellant, five other persons were inside the living room area. Mostasisia observed two “blunts,” or “smoked-out” marijuana cigarettes on the living room coffee table. For safety purposes, Mostasisia asked if any other persons were inside the apartment and a couple of people said “no.” When Mix asked if anyone had a medical marijuana card, several persons said they did not. No one claimed ownership of the blunts.

Mostasisia asked if there were any weapons or animals^[2] in the apartment and someone said “no.” Thereafter, all of the persons in the living room consented to a search of their persons, and the search turned up no contraband. Mix then performed a 30- to 45-second protective sweep of the apartment for officer safety, to ensure no animals or other individuals were

present. Mix testified that conducting such a protective sweep was “standard practice for [her].” During the protective sweep 46 marijuana plants growing in plastic dirt-filled tubs were found in plain view inside appellant’s bedroom.^[3] No drawers or closets were opened during the protective sweep.

Appellant was detained and handcuffed, but advised he was not under arrest. He said there was a letter which allowed him to cultivate or possess marijuana. Mostasisia believed that appellant was giving the officers permission to find the letter, so Mix retrieved it from an open safe. A very large quantity of empty plastic baggies was also found in or around the safe. The letter did not give appellant permission to possess or grow marijuana, but instead named someone not present at the apartment. Aside from the plants, the police observed, in plain view, a bag of potting soil in the hallway, three bottles of liquid plant food in the living room, and a small digital scale. Inside the bathroom, a “Cannabis Grow Bible” and plastic planter trays were found. A cane sword was found on the top bookshelf in the living room. Each of these items was seized. Sometime after Mix conducted her protective sweep of the apartment, other officers arrived and took control of the scene.

Thereafter, appellant was given Miranda admonitions (Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 ]) and agreed to be interviewed at the police station. Appellant said he grew marijuana as a hobby to use it as wallpaper. However, there were no marijuana leaves or plants embedded in the walls of the apartment. Appellant also said he did smoke marijuana with his friends but denied selling it. Appellant was not arrested on the evening the officers entered his apartment.

In moving to suppress, appellant argued that the officers’ warrantless entry and search of his entire apartment was nonconsensual and unjustified by exigent circumstances. The People opposed the suppression motion on the grounds that the plain view exception to the warrant requirement justified the officers’ actions, the officers’ warrantless entry was justified by their concern regarding the imminent destruction of drug evidence and the officers’ concern for their safety justified the protective sweep of the apartment. The magistrate denied appellant’s motion to suppress all evidence seized after finding persuasive the prosecution’s argument and authorities.

Thereafter, appellant renewed the motion to suppress in the trial court on the ground that there were no exigent circumstances justifying the officers’

“Yet, as with so much of its Fourth Amendment jurisprudence, the high court has stopped short of erecting a categorical bar. The presumption of unreasonableness that attaches to a warrantless entry into the home ‘can be overcome by a showing of one of the few “specifically established and well-delineated exceptions” to the warrant requirement [citation], such as “ ‘hot pursuit of a fleeing felon, or imminent destruction of evidence, ... or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling’ ” [citation]. The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors such as the imminent destruction of evidence or the need to prevent a suspect’s escape.’ [Citation.]” (People v. Thompson (2006) 38 Cal.4th 811 , 817-818 [ 43 Cal.Rptr.3d 750 , 135 P.3d 3 ] (Thompson).)

“An exigent circumstance is needed for a warrantless entry into one’s home regardless of the strength of the probable cause to arrest [citation] or the existence of a statute authorizing the arrest. [Citations.]” (People v. Ortiz (1995) 32 Cal.App.4th 286 , 291 [ 38 Cal.Rptr.2d 59 ].)

For good reason, appellant does not contest the existence of probable cause to believe a crime was being committed by those inside the apartment. Responding to a noise complaint, the police detected the odor of burning marijuana and observed what appeared to be one or more individuals smoking marijuana. These observations were confirmed by appellant’s equivocal answer to an officer’s question regarding the marijuana odor.

Appellant focuses his challenge to the warrantless entry on Welsh’’s requirement that an entry into a home to preserve evidence from imminent destruction is limited to evidence of crimes that are not minor. (Welsh, supra, 466 U.S. at p. 750.) Appellant argues the entry was illegal because the offense known to the officers at the time of entry, the simple possession of marijuana (Health & Saf. Code, § 11357, subd. (b)),^[4] is a nonjailable offense and, therefore, cannot justify an entry to prevent the imminent destruction of evidence. In Welsh, officers went to the defendant’s home after developing probable cause to believe he had recently driven a car under the influence of alcohol. The officers entered the home without a warrant to arrest the

The People also argue, “the act of furnishing marijuana to others is a felony punishable by imprisonment for as many as four years. (Health & Saf. Code, § 11360, subd. (a).)” But this argument ignores Health and Safety Code section 11360, subdivision (b), which provides that “Except as authorized by law, every person who gives away . . . not more than 28.5 grams of marijuana ... is guilty of a misdemeanor and shall be punished by a fine of not more than” $100.^[5] Thus, even had the officers observed one individual in the apartment furnish another with marijuana, the officers did not have probable cause to believe that a jailable offense was being committed at the time they entered.

We recognize that in Welsh and Thompson the officers entered a residence to obtain evidence of a crime that had occurred in the past, outside of the officers’ presence. Here, the Pacifica police officers observed the commission of a crime that was ongoing at the time they entered the apartment. At least one court has concluded that Penal Code section 836 authorizes a warrantless entry to effect an arrest in such circumstances. (People v. Robinson (1986) 185 Cal.App.3d 528 , 531 [ 229 Cal.Rptr. 851 ].) Section 836, subdivision (a), provides that a peace officer may arrest a person without a warrant whenever “(1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence.” We join several other courts in expressly rejecting the Robinson analysis. “A statute does not trump the Constitution. Under the Fourth Amendment, ‘ “To be arrested in the home ... is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority ....”’ [Citation.]” (People v. Ortiz, supra, 32 Cal.App.4th at p. 292, fn. 2.) Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163 , 176 [ 52 Cal.Rptr.2d 777 ], and People v. Hull (1995) 34 Cal.App.4th 1448 , 1453 [ 41 Cal.Rptr.2d 99 ], have adopted the reasoning of Ortiz, as do we.

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. Under Welsh, McArthur and Thompson, one 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.

Because the Pacifica police officers’ entry into the apartment was unjustified, appellant’s motion to suppress the evidence seized was erroneously denied.