Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR178471 & VCR185461
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
PROCEDURAL HISTORY
In case Solano County Superior Court No. 178471, following a preliminary hearing at which a motion to suppress evidence was denied, defendant was held to answer on various drug charges. After the filing of a felony information, defendant renewed his motion to suppress via a motion to set aside the information under Penal Code section 995. That motion was denied. Thereafter, defendant was charged in a separate proceeding (Solano County Superior Court No. 185461) with offenses from a different incident. Both cases were resolved in a joint disposition, wherein defendant pled guilty to possessing methamphetamine in case No. 178471 and felony domestic violence in case No. 185461. In each matter, he was placed on three years of probation and ordered to serve 90 days in jail, consecutively, as a condition of probation.
On appeal, he challenges only the denial of his motion to suppress evidence. Consequently, below, we set forth only the facts in case No. 178471.
FACTS
At approximately 1:00 p.m. on January 14, 2004, Vallejo Detectives Meredith and Bottomley went to 1711 Santa Clara Street to investigate a report of drug activity. They walked down a driveway and through an open gate to the front porch, where they knocked on the door. From inside, a male asked who it was. The detectives told him they were police officers. Just then, the detectives were greeted by Phylliss Mosher, who came from around the side of the house. Ms. Mosher appeared to be sweating profusely, despite the cool day. She explained that the front door was blocked from inside and that she had come out the back door. The detectives explained their reason for coming to the property. As the three talked, they walked along the driveway toward the back of the house. As they did so, Detective Meredith noticed a chemical smell, consistent with a large quantity of household cleaning supplies, that gave him a headache. He asked Mosher if there were a methamphetamine laboratory on the property. She hesitated and then said there was not. He also asked if there were anyone else in the home. She said there was not. When Meredith asked about the male voice he had heard, she acknowledged that her friend, Schell, was present. Mosher called for Schell to come outside, which he did. Mosher denied anyone else was present. However, because a large dog inside the home was apparently being restrained by someone, the detectives insisted there was someone else in the home. At which point, Amy Shoop emerged from the residence.
Prior to arriving at the residence, the detectives had information that defendant lived there. Mosher confirmed this information during her initial conversation with the detectives. The detectives then determined that there was an outstanding arrest warrant for defendant.
After detailing extensive training and experience in the field, Detective Bottomley was qualified as an expert witness regarding methamphetamine labs. He testified that the smells he noticed while on the side of the house with Detective Meredith and Ms. Mosher were consistent with those from a methamphetamine lab. At the rear of the residence, where the smell was strongest, he noticed metal cans of chemicals used in the manufacture of methamphetamine and a pair of “industrial-style” rubber gloves. Bottomley testified to the danger associated with methamphetamine labs, specifically the risk of explosions or fire and the risk from the toxic fumes. He called for additional officers and for animal control personnel to handle the dog.
After animal control officers went into the home and restrained the dog, Detective Bottomley and Officer Estudillo went into the residence to perform a protective sweep for the presence of a lab and other persons, including possibly defendant. At the time of the initial entry, the fire department was not contacted; no adjoining properties were evacuated, and the officers wore no respiratory equipment. In plain view in the kitchen and bedroom, they observed glassware of the kind used in a chemical lab, as well as chemicals associated with manufacturing methamphetamine. With this information, the detectives obtained a search warrant for the house. During the later search pursuant to the warrant, officers found a variety of chemicals and equipment associated with the manufacturing of methamphetamine. Indicia in the name of Mosher and defendant were found throughout the house. Methamphetamine was also recovered, along with a scale, packaging material, a police scanner and two firearms. The fire department was not summoned to the residence until nearly 7:00 that evening.
ANALYSIS
This case concerns the extent of the exigent circumstances exception to the requirement of a search warrant before law enforcement personnel may enter a home. “It is a ‘ “basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.”’ [Citation.] Nevertheless, because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions. [Citations.] We have held, for example, that law enforcement officers may make a warrantless entry onto private property to fight a fire and investigate its cause, [citation], to prevent the imminent destruction of evidence, [citation], or to engage in ‘ “hot pursuit” ’ of a fleeing suspect, [citation]. ‘[W]arrants are generally required to search a person’s home or his person unless “the exigencies of the situation” make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.’ [Citation.] [¶] One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. ‘ “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent exigency or emergency.” ’ [Citations.] Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. [Citations.]” (Brigham City v. Stuart (2006) 547 U.S. 398, 403.)
Appellant characterizes this case as one in which law enforcement improperly relied upon the protective sweep exception to the warrant requirement. (See Maryland v. Buie (1990) 494 U.S. 325, 334-335 [circumstances indicating a concern for officer safety may justify a cursory search of the premises when officers lawfully arrest an individual therein].) We agree with the Attorney General’s characterization, such that the matter is more properly analyzed under the exigent circumstances exception.
When considering the foregoing recent reiteration of the exigent circumstances exception by the United States Supreme Court, the facts of the case before us do not fit neatly into any of the examples given. Law enforcement officers did not enter the residence here in order to fight a fire, pursue a fleeing suspect, prevent the imminent destruction of evidence, or aid persons seriously injured. However, the Court’s broad proposition that warrantless entry is permissible in order “ ‘ “to protect or preserve life or avoid serious injury” ’ ” does pertain. (Brigham City v. Stuart, supra, 547 U.S. at p. 403.)
The trial court found that the officers, in entering the premises, acted reasonably “for their own safety and for the safety of the public, knowing the volatility of these kinds of operations.” On appeal, defendant makes no claim that the officers lacked probable cause to believe the house might contain a methamphetamine lab, nor does he claim that the existence of such a lab would not pose a serious danger. As to the former point, officers had a tip that illegal drug activity was occurring at the residence; they encountered an apparently anxious Mosher at the residence who repeatedly sought to deceive them as to who was inside the residence; and they both smelled and saw what, in their experience, were indications of the presence of methamphetamine manufacturing. We have no doubt that, had this information alone been presented to a magistrate, a search warrant would have issued for the premises. As to the latter point, Detective Bottomley’s testimony of the dangers of a methamphetamine lab was uncontested. As the courts have long recognized: “The extremely volatile nature of chemicals . . . involved in the production of drugs such as . . . methamphetamine creates a dangerous environment, especially when handled unprofessionally by residential manufacturers of illicit drugs.” (People v. Duncan (1986) 42 Cal.3d 91, 105.) However, “there is no absolute rule that can accommodate every warrantless entry into premises housing a drug laboratory. It is manifest that the emergency nature of each situation must be evaluated on its own facts.” (Id. at p. 103.)
In the trial court, defense counsel argued that the officers’ decision to allow animal control personnel to go into the residence to restrain the dog, the lack of safety equipment used by the officers making the initial entry, and the failure to summon the fire department immediately all suggested no exigency existed. We, of course, are concerned with whether an objective view of the circumstances justifies the warrantless entry; “[t]he officer’s subjective motivation is irrelevant.” (Brigham City v. Stuart, supra, 547 U.S. at p. 404.) Thus, we need not consider whether every action taken by law enforcement was wise under the circumstances, nor whether law enforcement harbored other reasons for entry, such as to look for a suspect.
In People v. Dickson (1983) 144 Cal.App.3d 1046, 1057-1058, the court held that the smell of ether (a component in the manufacture of PCP) did not alone establish probable cause to justify a warrantless entry of a dwelling. Here, of course, we have more than just the smell of chemicals used in the manufacture of illegal drugs. We have the report of drug activity at the residence, the nervous and deceptive behavior of Mosher and the presence of containers associated with the illegal chemicals. The case before us presents facts closer to those in People v. Messina (1985) 165 Cal.App.3d 937. There, the investigating officer, who had substantial experience in the investigation of illegal drug labs, received information from two informants that the defendant was manufacturing methamphetamine from his residence. At the residence, the officer smelled the very strong odor of one of the components of methamphetamine. He immediately notified the fire department, developed a plan of entry with fellow officers and went into the residence to secure it. (Id. at pp. 940-941.) The court concluded the warrantless entry was justified by exigent circumstances. (Id. at p. 945.) In doing so, the court distinguished Dickson, where there were no tips from informants and where the investigating officer was vastly less experienced in the field of illegal drug labs. (Messina, at pp. 944-945, fn. 2.)
The court affirmatively did not reach the question of whether the smell of ether alone would establish probable cause for a search warrant. (People v. Dickson, supra, 144 Cal.App.3d at pp. 1057-1058.) We disagree with the Dickson court’s implicit conclusion that probable cause is constituted differently in the two circumstances. Nonetheless, the case is distinguishable on the grounds cited below.
Although the officer in Dickson saw “bottles, jars and other equipment” inside the home prior to entering it, he never testified more specifically about these items. In particular, he never testified that they were of a type associated with illegal drug labs. Consequently, the appellate court concluded this observation did not contribute to a finding of probable cause. (People v. Dickson, supra, 144 Cal.App.3d at pp. 1053-1054.)
The court in Messina also noted that the investigating officer “sincerely believed he was confronted with an emergency and his conduct was consistent with that belief.” (165 Cal.App.3d at p. 945, fn. 2.) The officer’s sincerity was a point of distinction from Dickson in which the court concluded the investigating officers “were not really concerned about the danger of explosion.” (People v. Messina, supra, 165 Cal.App.3d at p. 945, fn. 2, citations omitted.) As noted above, the United States Supreme Court has held that the officer’s subjective intent is irrelevant. (Brigham v. Stuart, supra, 547 U.S. at p. 404.) Furthermore, defendant does not contend on appeal that the officers here did not sincerely believe there was an exigency or that their actions were inconsistent with that belief. Finally, the court below made an implicit factual finding that the officers did believe in the need for immediate action—a finding we see no reason to disturb.
Here, Detective Bottomley was highly experienced in the area of illegal drug labs. Also, he was armed with the tip of illegal drug activity at the residence, saw containers specifically associated with the manufacture of methamphetamine, and encountered an evasive occupant. All these factors establish probable cause to believe exigent circumstances existed to justify the limited intrusion accomplished here.
The motion to suppress was properly denied below. We affirm the judgment.
In light of this conclusion, we need not address defendant’s other contention: that his trial counsel was ineffective for not specifically challenging the search warrant to the extent information contained therein was derived from the initial entry into the residence.
We concur: JONES, P. J., SIMONS J.