Opinion
In denying hearing, the Supreme Court ordered that the opinion be not officially published.
Assigned by the Chairperson of the Judicial Council.
Ordered Not Published (Rule 976, Cal. Rules of Ct.).
Quin Denvir, State Public Defender, and William Blum, Deputy State Public Defender, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and respondent.
RICKS, * Associate Justice.
Appellant Gregory Darnell Smith (Smith) appeals from the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5. Following denial of his motion, Smith entered a plea of guilty to burglary in the second degree (Pen. Code, § 459). Smith was sentenced to state prison for the middle term of two years. He was granted credit for 49 days spent in presentence custody, but was denied any credit for good time/work time.
CONTENTIONS
Smith contends that (1) the warrantless arrest inside his home was improper; (2) his confession and the stolen goods recovered after this confession should have been suppressed pursuant to Penal Code section 1538.5; and (3) he is eligible to receive good time/work time credit for presentence custody.
FACTS
On April 26, 1979, at approximately 6 a. m., Gayle Davis (Davis) left her residence at 1449 West 108th Street in Los Angeles. The premises were secured and everything was in order. She returned at approximately 4 p. m. and noticed that her front window was broken and her back window unlocked. Her television, tape recorder, typewriter, four peacock wall plaques, clock radio, and an electric clock were all missing. She had not given anyone permission to enter the premises or remove any property.
Davis promptly notified the police. Deputy Sheriff Walter Faber (Faber) and his partner, Deputy Sheriff Tom Davidheiser (Davidheiser), arrived at the location at approximately 8:45 p. m. Davis and a neighbor, Lenora Andrews (Andrews), told the deputies about the missing property.
Andrews informed the deputies that she had seen a man enter the Davis residence at about 10 a. m., remove certain property, place it in the trunk of his car, and leave. She stated that the man's name was Gregory Smith and described him as a male negro in his middle twenties, over six feet tall, weighing approximately 175 to 185 pounds, and having a goatee or beard.
Andrews pointed out Smith's residence, which was straight down the driveway in a northern direction at the end of the lot. Andrews also stated that the car parked in front of the location was owned by Smith and had been used by him that morning. With this information, the deputies walked down the driveway to obtain the license number of the automobile in order to run a vehicle check and request a tow truck to impound the vehicle.
As the deputies were walking down the driveway, they saw a woman walking toward the Smith residence. Andrews informed the deputies that this woman was a cousin of Smith's. As the deputies approached Smith's car to obtain the license number, the woman identified as Smith's cousin walked up to Smith's home and knocked on his door. After more knocking, the door was opened and Smith appeared in the doorway.
Faber observed Smith and saw that he matched the description given by Andrews. Faber asked him if he was "Gregory," and Smith replied, "Yes." Faber then asked, "Gregory Smith?" Smith again answered, "Yes." Faber asked Smith, "Why don't you step over here?" When Smith did not move, Faber said, "Step out." Smith, who was still standing in the doorway, turned as if to run back into the house. Faber reached out, his arm crossing the threshold, Smith was arrested for burglary, handcuffed and placed in the rear seat of the patrol vehicle which was located approximately 40 yards from Smith's residence. Smith's brother, Jimmy Smith (Jimmy), approached Faber and requested the keys to Smith's car and house. Upon receiving Smith's permission, Faber subsequently gave Jimmy the house and car keys. After further conversation, Jimmy agreed to open the trunk of the car. The four peacock wall plaques which had been stolen in the burglary were found in the trunk and seized by Faber.
Faber informed Smith that the plaques had been obtained from his car and that there was an eyewitness who reported observing him enter and leave the Davis residence with the property. Smith was advised of his Miranda rights, after which he agreed to talk with Faber. Smith informed Faber of the location of the stolen property and directed him there so that the remaining property could be recovered.
Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
DISCUSSION
Smith contends that his arrest was unlawful, not because of insufficient probable cause, but because it was effectuated in his home without a warrant.
In People v. Ramey (1976) 16 Cal.3d 263, at pages 275-276, 127 Cal.Rptr. 629, 545 P.2d 1333, our Supreme Court held that "the protection of article I, section 13, of the California Constitution and the Fourth Amendment of the federal Constitution against violation of the right of the people to be secure in their persons and houses against unreasonable seizures applies to arrests within the home, and that warrantless arrests within the home are per se unreasonable in the absence of exigent circumstances. [Fn. omitted.] ... In this context, '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 evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers." (Emphasis added.)
"A key word in this definition is 'imminent.' 'Imminent' means: 'impending;' 'about to happen;' 'immediate;' 'threatening;' 'ready to take place;' 'near at hand;' all to the extent that the event in question will occur at once unless speedy, swift and prompt police action to arrest is forthcoming." (James v. Superior Court (1978) 87 Cal.App.3d 985, 991, 151 Cal.Rptr. 270.)
In support of his argument Smith cites People v. Ramey, supra, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, and the just quoted James v. Superior Court, supra, 87 Cal.App.3d 985, 151 Cal.Rptr. 270. However, each of these cases is distinguishable from the case herein.
In People v. Ramey, supra, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, the officer had information which tended to show that the defendant had received stolen property which was probably no longer in his possession and that he was not likely to flee. Moreover, no attempt was made to secure an arrest warrant even though three hours had passed between the time the officer received the information and proceeded to arrest the defendant. In contrast, in the instant case the likelihood of Smith's flight was graphically demonstrated by his turning to run back into his home after Faber requested that he step outside. Additionally, there was no delay between the time the officers received the report of the burglary and their ensuing investigation, at which juncture Smith appeared in the doorway.
Similarly, in James v. Superior Court, supra, 87 Cal.App.3d 985, 151 Cal.Rptr. 270, the defendant had returned to his motel room following the commission of a robbery. However, in the case at bar, the deputies had absolutely nothing to do with Smith's opening his door and standing in the doorway. The deputies had not even approached the residence until Smith was observed standing in the open doorway. Rather, while proceeding with their investigation of the reported burglary, the officers' attention was drawn to the open doorway, where a man matching the physical description of the burglar stood. The officer asked if he was Gregory Smith and received an affirmative response. After being asked to step out twice, Smith turned to run back into the house. When Faber reached for Smith, his arm crossed the threshold as he pulled him out of the doorway and placed him under arrest. At this point in time Faber could see three or four people, including two men, in the house. He testified as to his state of mind at this time:
"I wasn't ready to make an arrest, and it all happened so quickly that I felt if he ran into this group of men and then we had to pursue him into his house, we might be in considerable difficulty. [p] First off, we would have been outnumbered, and, secondly, it would have been some great difficulty to get back to our vehicle to call for help if we needed it."
In a recent case the court, holding the hot pursuit exception applicable, stated: "[A]lthough 'fresh pursuit' of a fleeing felon must be substantially continuous and afford the law enforcement authorities no reasonable opportunity to obtain a warrant, it is not necessary that the suspect be kept physically in view at all times." (People v. Escudero (1979) 23 Cal.3d 800, 810, 153 Cal.Rptr. 825, 592 P.2d 312.)
Considering all the circumstances, it is clear that Faber was faced with an emergency situation in which he had to take immediate action. Based on the facts known to Faber, he had no other reasonable choice but to forestall the "imminent escape" of Smith and to protect the safety of himself, his partner, the other persons inside the house, and Smith's cousin. The aforementioned facts fit squarely within the Ramey definition of exigent circumstances and the warrantless arrest of Smith in this instance was a lawful one. Therefore, Smith's contention that the police created the exigent circumstances of their own accord is without merit. Based on the facts known to Faber at the time, he had no other viable means by which he could thwart Smith's imminent escape. (People v. Shuey (1975) 13 Cal.3d 835, 849, 120 Cal.Rptr. 83, 533 P.2d 211; James v. Superior Court, supra, 87 Cal.App.3d at p. 992, 151 Cal.Rptr. 270.)
Smith next contends that his confession and the stolen property recovered after his confession should have been suppressed because they were fruits of the unlawful trunk search. We disagree.
Smith relies on the case of People v. Johnson (1969) 70 Cal.2d 541, 545, 75 Cal.Rptr. 401, 450 P.2d 865, disapproved on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 899, footnote 8, 135 Cal.Rptr. 786, 558 P.2d 872, where the court reiterated the rule that:
"[W]here a confession is induced by illegally seized evidence, the confession is subject to exclusion as fruit of the poisonous tree. (See, e. g., Fahy v. Connecticut (1963) 375 U.S. 85, 90-91 [84 S.Ct. 229, 232, 11 L.Ed.2d 171, 175-176]; Wong Sun v. United States (1963) 371 U.S. 471, 485 [83 S.Ct. 407, 416, 9 L.Ed.2d 441, 453]; People v. Stoner, 65 Cal.2d 595, 600 [55 Cal.Rptr. 897, 422 P.2d 585]; People v. Bilderbach, 62 Cal.2d 757, 767 [44 Cal.Rptr. 313, 401 P.2d 921]; People v. Faris, 63 Cal.2d 541, 546 [47 Cal.Rptr. 370, 407 P.2d 282]; People v. Dixon, 46 Cal.2d 456, 458 [296 P.2d 557]; People v. Govea, 235 Cal.App.2d 285, 304 [45 Cal.Rptr. 253].)" However, the court in Johnson went on to explain that once the accused has established a relationship between the unlawful police activity and the evidence or confession to which objection is made, it is incumbent upon the prosecution to demonstrate that any unlawful taint has been dissipated. The court emphasized that this "does not purport to require the prosecution to read minds .... The rule requires the presentation of objective evidence." (People v. Johnson, supra, 70 Cal.2d at p. 554, fn. 6, 75 Cal.Rptr. 401, 450 P.2d 865.)
The trial court heard argument from counsel concerning the circumstances of Smith's confession. Smith was given his Miranda warnings. Although thereafter he was told of the officers' discovery of the peacock plaques, Smith was also informed "Q ... what did you say, and what did he say?
The following colloquy took place among Mr. Clark, Smith's counsel, Mr. Saukkola, the prosecutor, and the court:
The validity of the trunk search in which the peacock plaques were located and seized was the subject of a magistrate's ruling at the preliminary hearing.
"A Then I said, 'Look, I think I've got you dead bang on this thing. Do you want-do you want me to get this lady's property back, or what do you want to do?'
"Q What did he say?
"A He says, 'Yeah. I'll help you.' [p] I says, 'Okay. Can you tell me where it is?'
"Q Then tell us what you said, what he said, and what you did.
"A Okay. [p] He said that he had sold the items to a fellow named Bill on a 106th Street, who is somewhat of a dope dealer and had gotten $35 for it. [p] I asked him if he would take me over there and point out the place, so I could get the lady's property back. [p] He said he would, and he did."
In light of the aforementioned facts, the trial court's ruling that Smith's confession was a product of his own free will and did not result because he was confronted with the officers' knowledge of the peacock plaques was a proper one.
Smith's final contention is that he is entitled to good time/work time credits for presentence custody. In People v. Sage (1980) 26 Cal.3d 498, mod. 27 Cal.3d 144a, 165 Cal.Rptr. 280, 611 P.2d 874 as modified, our Supreme Court recently held, on equal protection grounds, that such credits must be awarded retroactively, if earned. (Id., at p. 144b, fn. 7, 165 Cal.Rptr. 280, 611 P.2d 874; People v. Burke (1980) 102 Cal.App.3d 932, 939, 163 Cal.Rptr. 4.) However, the court in People v. Sage, supra, noted 27 Cal.3d at page 144b, 165 Cal.Rptr. 280, 611 P.2d 874: "It is unnecessary ... to remand this defendant and others who have already been sentenced for new sentencing proceedings to determine the additional credit to which they may be entitled. The Department of Corrections should make available to such prisoners an administrative procedure by which to ascertain their entitlement to conduct credit. [Citation.]"
The judgment is affirmed.
COBEY, Acting P. J., and POTTER, J., concur.
"MR. CLARK: The basis for my objections to the evidence is primarily this, Your Honor:
"I think it is the classic case that was outlined in the case of People versus Johnson, 70 Cal.2d 541 [75 Cal.Rptr. 401, 450 P.2d 865]; where the defendant is arrested legally, and he is given the Miranda warning. Prior to the Miranda warning, Johnson is shown the TV set that was taken from a burglary that was seized illegally by the police.
"And Johnson is shown the television set, and they say, 'We got you, Johnson. We got the TV. We got the other evidence.'
"They gave a Miranda statement. There's a valid waiver-no question about it-in the Johnson case.
"And Mr. Johnson confesses.
"And the California Supreme Court said, 'Well, okay. That's fine. But the valid Miranda warning and waiver do not preclude the fact that when a defendant is confronted with illegally seized evidence and then given a valid Miranda warning waiver, that that taints any statement thereafter.'
"And, of course, my position is that once Mr. Smith gave that particular-was confronted with the peacock plaques, or the fact that, 'See, we got the plaques,' which the deputy did, at least at the preliminary hearing saying, 'I remember at least mentioning the plaques; I can't honestly remember whether or not I showed him the plaques.'
"But I would suggest under common sense that when the deputy got the plaques, and he was in the back, that the deputy either walked by the patrol car with the plaques or showed him the plaques through the window or whatever.
"But it's clear that he was confronted with the plaques.
"A statement by the defendant or the confession by the defendant that flowed from the showing of the plaques-also, the defendant made statements indicating that certain other of the property had been at another location.
"But my contention, my personal contention, is that the fact that he was confronted with evidence that was illegally seized, which prompted both an alleged confession, as well as the showing an individual to another location or taking the deputies to the other location where property was seized all flowed from the seizure of the plaques, which was illegal.
"...
"THE COURT: Thank you, Mr. Clark.
"It is well argued, as you always do.
"Mr. Saukkola.
"MR. SAUKKOLA: Yes.
"Thank you, Your Honor.
"First of all, Your Honor, I think, referring to the Johnson case, that counsel cites, I think it's accurate to say that while confessions and admissions are received after Miranda warnings, but if-if the basis of the evidence is that its's illegally tainted evidence, but I think the Johnson case is still good law. However, I think in this particular case, our facts are distinguishable from Johnson in that there has been, one, no showing that-well, first of all, in the Johnson case they were limited to just the physical evidence.
"Now, here, we have a situation where officers receive a call at 8:35 in the evening. Ten minutes later they are at the scene. They have spoken to the
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victim of the burglary. The have spoken to the next door neighbor. And then after they have effected the arrest of the defendant, he's in the car. They-albeit, they have gone into the trunk, but as Deputy Faber tells us, that he told him what he had to that point and what he told this court was that Mrs. Andrews had named him by name, said the house that he went into, said the location where he put the-some of the items that were taken in the burglary."So, what he had at that point was an awful lot more than just two or four peacock birds that were admitted into evidence by way of a photograph at the preliminary hearing.
"So, I would submit under the totality of the circumstances and all the evidence, that Deputy Faber had at the time, that the defendant was quite fairly and fully informed of why the officers were there and of the evidence that had been amassed against him and why he was, in fact, in custody.
"And then it was after the advisement was given that he did make the statements that implicated him in this offense."
Penal Code section 1538.5, subdivision (j), sets forth the procedure available for review after a suppression motion has been granted by providing in pertinent part:
"If the property or evidence relates to a felony offense initiated by complaint and the defendant's motion for the return or suppression of the property or evidence at the preliminary hearing is granted, and if the defendant is held to answer at the preliminary hearing, the ruling at the preliminary hearing shall be binding upon the people unless, upon notice to the defendant and the court in which the preliminary hearing was held and upon the filing of an information, the people within 15 days after the preliminary hearing request in the superior court a special hearing, in which case the validity of the search or seizure shall be relitigated de novo on the basis of the evidence presented at the special hearing, and the defendant shall be entitled, as a matter of right, to a continuance of the special hearing for a period of time up to 30 days."
No appeal from the ruling was sought by the prosecution because the peacock plaques were not deemed crucial to the People's case in light of the ample evidence remaining to prove Smith's guilt; namely, the eyewitness' testimony, Smith's confession, and the evidence to which Smith led the deputies. Because no Penal Code section 1538.5, subdivision (j), hearing was sought, the magistrate's ruling that the trunk search was unlawful became binding upon the superior court.