Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MF029625A
ROBIE, Judge.
The question in this case is whether police officers acted reasonably when they entered defendant’s home without a warrant because they suspected there was a methamphetamine laboratory on the premises. We conclude that the officers’ entry was objectively reasonable given the circumstances and the dangers associated with methamphetamine laboratories in residential neighborhoods. Accordingly, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Around 12:00 noon on April 18, 2006, Manteca Police Officer Marnix Lub and Detectives Sam Gallego, Mike Sexson, and Sean Cavin arrived at defendant’s residence. They were investigating an anonymous tip concerning suspected drug activity and a possible methamphetamine lab in a motor home on the property or at the residence. Defendant’s home is a small apartment located behind another house in a residential neighborhood. When the officers arrived, there was a truck and a motor home parked near the apartment. As the officers approached defendant’s home, they noticed a video surveillance camera near the front door, angled in the direction of the truck and motor home.
The police knocked and defendant appeared in the doorway, but remained behind a wrought iron security screen door. Defendant identified himself to the officers and Officer Lub asked him about the surveillance system. Defendant responded that he kept the video camera pointed toward his truck and motor home so he could see if anyone tried to steal the vehicles. Officer Lub then asked defendant to open the security screen door and defendant complied.
While the security screen door was open, Officer Lub began to notice an unusual odor from inside the residence. As the odor became stronger, Officer Lub distinguished the chemical odor as similar to the smell of ether, or paint thinner, or some form of solvent. The longer the security screen door was open, the more pungent the odor became. The solvent odor was consistent with those odors Officer Lub associated with methamphetamine labs. Detective Cavin asked defendant if defendant was painting something in the house. Defendant said he was not. The officers asked defendant for permission to search his residence and defendant refused. Officer Lub told defendant he believed the odors coming from defendant’s home were due to a methamphetamine lab. Defendant then stated that he was painting. At this point, Officer Lub believed there was a methamphetamine lab in the residence. According to his training and experience, he knew the presence of a methamphetamine lab and the resulting toxic odors could cause harm to the surrounding neighbors and potentially result in an explosion.
Officer Lub informed defendant that the officers were going to secure the residence for public safety purposes. He asked defendant if there was anyone else in the residence and defendant said there was not. Officer Lub and Detective Sexson entered defendant’s apartment while defendant remained on the front porch with the other detectives. At the motion to suppress hearing, the parties stipulated that this entry was not pursuant to a warrant.
Officer Lub walked through the rooms of the small apartment, then entered the kitchen and looked inside the refrigerator and freezer. He saw an unknown substance on a shelf in the freezer which he thought could be crystallized methamphetamine. Detective Sexson entered the bathroom and found a two-liter Pepsi bottle with a hole in the cap in the trash can, which Officer Lub believed to be related to methamphetamine manufacturing. The officers also seized a nine-millimeter handgun that was in plain view on defendant’s couch. Eventually, the chemical odor in the house became so overpowering that Officer Lub and Detective Sexson had to go outside. The officers did not locate the source of the odor, nor did they open any windows, extinguish the water heater’s pilot light, call the fire department, or notify or evacuate nearby residents.
Officer Lub left the residence around 12:30 pm. to obtain a search warrant. Pursuant to the search warrant, the police later reentered defendant’s apartment and seized various items.
Defendant was charged with manufacturing a controlled substance and possession for sale of a controlled substance. Both charges were enhanced with an allegation that defendant was personally armed with a firearm while committing the offenses. Defendant filed a “hybrid” motion to suppress all evidence obtained during the officers’ warrantless entry as well as the evidence seized pursuant to the warrant, and to quash and traverse the search warrant because it was based on statements that were deliberately false or in reckless disregard for the truth. After the motion to suppress hearing on the matter, the trial court ruled that there were exigent circumstances sufficient to justify the officers’ initial warrantless entry into defendant’s home to conduct a “safety sweep.” However, the court suppressed the Pepsi bottle found in the bathroom garbage can and the substance found in defendant’s freezer, explaining that the officers’ search for evidence exceeded the scope of the safety sweep. The court then redacted portions of the search warrant affidavit that were supported by those pieces of evidence. The court did not suppress the officers’ observations and sensory perceptions realized while they were in defendant’s residence.
The court declined to decide the second part of the hybrid motion which requested the court quash and traverse the search warrant. The court decided it would transfer the case to the magistrate who had issued the warrant for a final determination as to whether there was still probable cause for the warrant despite the suppressed evidence. Defendant filed a motion objecting to the court’s procedure of transferring the case. While counsel and the court were working on a resolution of the procedural matters, and prior to a final decision on the motion to quash and traverse the search warrant, defendant entered a change of plea.
Although the procedure the trial court chose for determining the validity of the search warrant is not at issue on appeal, the Model Code of Judicial Conduct is clear that a judge shall hear and decide all matters assigned except those in which disqualification is required. (ABA Model Code Jud. Conduct, Jud. Canon 3, rule(B)(1).) In this case, the trial judge heard testimony and considered counsel’s arguments, yet failed to decide all matters raised in the motion. The trial judge caused an unnecessary delay in the proceedings by erroneously ordering that the remaining matters on the motion be transferred to the magistrate who issued the search warrant. The public defender properly opposed this transfer. Nothing in Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667] requires the magistrate who issued the original search warrant to also decide, after the warrant has been executed, whether the search warrant, after certain content has been redacted from the underlying affidavit, would still be supported by probable cause.
During the change of plea hearing, the court asked defendant, “Have you had enough time to discuss your case with your attorney, including your constitutional rights, the elements of the charges, possible defenses you have, and the consequences of your plea?” Defendant responded, “Yes. [¶] It’s my understanding that I can appeal that decision.” The court agreed, “You absolutely can appeal the suppression decision, yes. Despite your plea, you still have the right to do that.” Defendant pled guilty to a charge of possession of a controlled substance in exchange for dismissal of the charge of manufacturing a controlled substance and the arming enhancement.
After entering his change of plea, defendant filed this timely appeal contending that the trial court erred when it found exigent circumstances existed which enabled the officers to enter defendant’s residence without a warrant.
DISCUSSION
I
Effect Of Change Of Plea
The People argue that defendant “forfeited” his rights to appeal the trial court’s ruling on the motion to suppress when he entered his guilty plea. The case law offered by the People, however, is inapposite. Although defendant entered his plea knowingly and voluntarily, he expressly and statutorily retained the right to challenge the adverse ruling on the motion to suppress. Penal Code section 1538.5, subdivision (m) explains, “A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated on a plea of guilty.” Although the trial court suppressed some physical evidence, the court’s ruling was partially adverse to defendant because the court found that the warrantless entry was lawful and refused to suppress the officers’ observations and other sensory perceptions resulting from that entry. Accordingly, we cannot say that the court’s ruling on the motion did not prejudice defendant. Therefore, defendant’s change of plea did not waive his right to appeal.
II
The Warrantless Entry
A
Standard Of Review
“In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) “When the admissibility of evidence is challenged as being the ‘fruit’ of an unlawful search and seizure, article I, section 28, subdivision (d) of the California Constitution requires [California courts] to follow the decisions of the United States Supreme Court.” (People v. Bennett (1998) 17 Cal.4th 373, 390.)
B
Exigent Circumstances
Defendant contends the trial court erred when it found that the officers’ warrantless entry did not violate his Fourth Amendment rights. He asserts that no exigent circumstances existed which justified excusing the warrant requirement. Therefore, the officers’ warrantless entry into his home violated his Fourth Amendment rights and all observations, sensory perceptions, and physical evidence obtained from that entry should have been suppressed. We disagree.
“It is axiomatic that the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’” (Welsh v. Wisconsin (1984) 466 U.S. 740, 748 [80 L.Ed.2d 732, 742] quoting United States v. United States District Court (1972) 407 U.S. 297, 313 [32 L.Ed.2d 752, 764].) “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” (Payton v. New York (1980) 445 U.S. 573, 586 [63 L.Ed.2d 639, 651].) “Nevertheless, because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions.” (Brigham City v. Stuart (2006) 547 U.S. __ [164 L.Ed.2d 650, 657]; see also Flippo v. West Virginia (1999) 528 U.S. 11, 13 [145 L.Ed.2d 16, 19] [“A warrantless search by the police is invalid unless it falls within one of the narrow and well-delineated exceptions to the warrant requirement”].) Where defendant proves a warrantless entry, the People bear the burden of establishing that exigent circumstances or some other exception justified the entry and that the entry was reasonable. (People v. Williams (1988) 45 Cal.3d 1268, 1300; Welsh v. Wisconsin, supra, 466 U.S. at pp. 749-750 [80 L.Ed.2d at p. 743].)
Generally, “warrants are required unless the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable.” (Mince v. Arizona (1978) 437 U.S. 385, 393-394 [57 L.Ed.2d 290, 301].) An exigent circumstance is 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.” (People v. Rama (1976) 16 Cal.3d 263, 276.) A warrantless entry to preserve life or property may be objectively reasonable even absent probable cause that a crime has been committed. (Kirk v. Louisiana (2002) 536 U.S. 635 [153 L.Ed.2d 599]; Brigham City v. Stuart, supra, 547 U.S. __ [164 L.Ed.2d 650]; U.S. v. Ajar (10th Cir. 2006) 451 F.3d 710, 718, cert. den. (2006) [166 L.Ed.2d 401]; People v. Neighbors (1990) 223 Cal.App.3d 1115, 1122.) “Where a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.” (New Jersey v. T. L. O. (1985) 469 U.S. 325, 341 [83 L.Ed.2d 720, 734].) When life or property is at risk, the Fourth Amendment does not require an officer to stand idly by when his prompt actions could prevent violence or restore order. (Brigham City v. Stuart, supra, 547 U.S. at p.__ [164 L.Ed.2d at p. 659].) Accordingly, when an officer responds to an “emergency situation,” we evaluate his actions under a standard of reasonableness. (Id. at p. ___ [164 L.Ed.2d at p. 658].)
Here, we are confronted with a case in which the situation giving rise to the alleged exigency also tended to suggest commission of a crime. Methamphetamine manufacturing is a serious felony punishable by a minimum of three years in state prison. (Health & Oaf. Code, §§ 11379.6, 11055.) California also considers methamphetamine manufacturing an inherently dangerous felony for purposes of the second degree felony-murder rule. (People v. James (1998) 62 Cal.App.4th 244, 271.) In James, the court explained, “one cannot commit the felony of manufacturing methamphetamine without possessing at least some hazardous substances; without using, pouring and mixing those substances; or without applying heat. Thus, manufacturing methamphetamine, ‘by its very nature, . . . cannot be committed without creating a substantial risk that someone will be killed. . . .’” (James, at pp. 270-271, quoting People v. Burroughs (1984) 35 Cal.3d 824, 830.) Consequently, the court concluded that “the mere presence of an operating methamphetamine lab represents an imminent and substantial danger to human life.” (James, at p. 269.) Even when a methamphetamine lab is not in actual operation, “[t]he extremely volatile nature of chemicals, including ether, involved in the production of drugs such as PCP and methamphetamine creates a dangerous environment, especially when handled unprofessionally by residential manufacturers of illicit drugs.” (People v. Duncan (1986) 42 Cal.3d 91, 105.) Therefore, when a methamphetamine lab is believed to exist, there is potentially an imminently dangerous situation as well as the opportunity to collect evidence of a crime. The test, though, hinges not on the legality or seriousness of the activity involved, but rather on whether a warrantless entry is objectively reasonable under the circumstances. (Mince v. Arizona, supra, 437 U.S. at p. 394 [57 L.Ed.2d at p. 301].)
“[I]n determining whether the officer acted reasonably, due weight must be given not to his particularized suspicions or ‘hunches,’ but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary.” (People v. Block (1971) 6 Cal.3d 239, 244.) As there is no bright-line rule determining reasonableness, we measure it “in objective terms by examining the totality of the circumstances.” (Ohio v. Robinette (1996) 519 U.S. 33, 39 [136 L.Ed.2d 347, 354].)
Since the objective circumstances validate the warrantless entry and dictate whether the officers acted reasonably, we must consider the facts known to the officers at the time they entered defendant’s home. In this case, the officers were at defendant’s residence in response to an anonymous tip that there was suspected drug activity and a possible methamphetamine lab in the motor home on the property or at the residence. When the officers arrived at defendant’s residence, they saw a motor home parked near the house. There was also a video surveillance camera above the front door of the house which was pointed in the direction of the motor home. Defendant opened his security screen door to talk to the officers and, after a few minutes, the officers smelled an odor similar to ether or paint thinner coming from the inside of defendant’s house. When the officers asked defendant whether he was painting something, defendant said “no.” After the officers voiced their suspicion that defendant had a methamphetamine lab inside, defendant changed his answer and said, yes, he was painting something. We find that these facts are sufficient for an officer to reasonably conclude that defendant was potentially operating a methamphetamine lab.
Defendant argues that the anonymous tip and ambiguous smell associated with his home cannot support a reasonable belief that a methamphetamine lab existed. “[I]information supplied by an anonymous informant whose reliability is unknown can be factored into the reasonable suspicion determination, subject to some degree of corroboration.” (People v. Ramirez (1996) 41 Cal.App.4th 1608, 1616.) The information received by the officers was corroborated by the presence of a motor home on the property and a smell similar to ether emanating from defendant’s house. While the smell of ether, the video camera, and defendant’s evasive behavior may be consistent with innocent as well as criminal activity, “[e]even observations of seemingly innocent activity provide sufficient corroboration if the anonymous tip casts the activity in a suspicious light.” (People v. Johnson (1990) 220 Cal.App.3d 742, 749, disapproved of on other grounds in People v. Mozzarella (1991) 54 Cal.3d 592, 606, fn. 6; see also Illinois v. Gates (1983) 462 U.S. 213, 244, fn. 13 [76 L.Ed.2d 527, 552]; People v. Costello (1988) 204 Cal.App.3d 431, 446.) Thus, although the circumstances could be viewed innocently, a police officer could also reasonably construe them otherwise.
Also at issue is whether the smell of ether in this case was sufficient to establish a reasonable belief that there was a methamphetamine lab in operation. We think it unnecessary to address this issue at length since we find that the totality of the circumstances gave rise to an objectively reasonable belief that defendant had a methamphetamine lab on his property. We note that the responding officer had extensive training in the detection of narcotics and had “cooked” methamphetamine himself several times. He testified that there “are more solvent smells associated with the [methamphetamine] labs” and the odor emitting from defendant’s residence was a “solvent smell that [he] associate[d] with labs.” When considered with the tip, the surveillance camera, and defendant’s changing responses, an officer with similar training and experience could have reasonably believed the smell from defendant’s home was associated with methamphetamine manufacturing. (People v. Williams (1961) 196 Cal.App.2d 726, 728, [“Circumstances and conduct which would not excite the suspicion of the man on the street might be highly significant to an officer who had had extensive training and experience in the devious and cunning devices used by narcotics offenders to conceal their crimes”].)
Defendant cites several cases to explain how significant the smell of ether is when justifying a warrantless search for a methamphetamine lab. (See, erg., People v. Messing (1985) 165 Cal.App.3d 937; People v. Dickson (1983) 144 Cal.App.3d 1046; People v. Legman (1985) 164 Cal.App.3d 936; People v. Duncan, supra, 42 Cal.3d 91.) In these cases, there was some discussion as to whether a chemical odor, alone, could justify a warrantless entry and search for a methamphetamine lab under the exigent circumstances exception. However, we consider the totality of the circumstances giving rise to the emergency and do not evaluate the individual factors in isolation. Therefore, we find defendant’s analysis on this matter inapposite.
The officers here had an objectively reasonable basis for believing that defendant was manufacturing methamphetamine in his residence. Due to the inherent dangers of methamphetamine labs, the officers acted reasonably in entering the home to ascertain the level of risk to the public. Regardless of the officers’ subjective motivations for entering the home -- to search for endangered occupants and alleviate the danger of explosion, or to collect evidence of a crime -- the circumstances, viewed objectively, justified the warrantless entry.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., BUTZ, J.