Opinion
B162516.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. KEVIN L. HAMPTON, Defendant and Appellant.
Alan C. Stern, under appointment by the Court of Appeal for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Victoria B. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
Kevin L. Hampton appeals from the judgment entered after he was convicted of possession of cocaine and admitted suffering two prior drug convictions and serving a separate prison term for a felony. (Health & Saf. Code, §§ 11350, subd. (a), 11370, subds. (a) and (c), 11370.2, subd. (b); Pen. Code, § 667.5, subd. (b).) The court suspended imposition of sentenced and granted him three years of formal probation pursuant to Proposition 36. (Pen. Code, § 1210.1.) He contends the trial court erroneously denied his motion to suppress illegally seized evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant made his motion to suppress evidence in superior court. The parties stipulated that police did not have a warrant to search or arrest appellant. On April 5, 2001, during an investigation of alleged drug dealing at a Long Beach motel, police used an informant to set up a controlled purchase of rock cocaine at the motel. Officers gave the informant a pre-recorded $20 bill and instructed him to attempt to buy rock cocaine. The officers waited outside the motel, where they observed the following activities: Appellant and codefendant Bumphus arrived by car around 5:30 p.m. and entered room 15, which was apparently visible from the street. Two women and a man named Love also went into the room. One of the women left shortly thereafter.
At the hearing on the motion to suppress, four officers testified for the prosecution as to what occurred on April 5, 2001. None of the officers witnessed the entire sequence of events.
The informant contacted codefendant Wiseman across the street from the motel and accompanied him to the front of the motel. Wiseman approached the motel and a woman, codefendant Moore, emerged from room 15. Using hand signals, Wiseman communicated to Moore that the informant wanted $20 worth of cocaine. Moore responded by indicating that Wiseman should wait. Moore reentered room 15. Bumphus came out of the room and walked up to Wiseman and the informant. A hand-to-hand sale of rock cocaine occurred between Bumphus and the informant with the pre-recorded $20 bill. Wiseman walked back across the street. The informant turned the rock cocaine over to police.
Investigating Officer Watson decided to secure room 15 before obtaining a search warrant. In his experience, persons dealing drugs out of motel rooms are transient. Watson did not know if the occupants of room 15 had access to a rear exit. He also determined police would lose the buy money or cocaine as evidence because individuals were purchasing drugs from the room and leaving.
The officers approached the motel and detained Love as he was leaving room 15. Rock cocaine was found on Loves person, similar in size, shape and appearance to that the informant had purchased from Bumphus. Officer Watson knocked on the door of the room, identified himself as a police officer, and ordered the rooms occupants to open the door. He received no response and heard the sound of someone running inside the room. Fearing the occupants were attempting to flee, to arm themselves or to destroy possible contraband or evidence, Watson ordered a forced entry. Once inside room 15, officers detained appellant, Bumphus and Moore. A pat down search of appellant yielded a cellular phone, a pager, a ziplock baggie of rock cocaine, and $65. Wiseman was also detained.
Codefendants Bumphus, Wiseman, and Moore are not parties to this appeal.
The defense presented no evidence.
Appellant moved to suppress his statements to police and the officers observations, arguing the warrantless entry was not justified by exigency. Acknowledging that it was "a close case from the defense point of view," the trial court concluded entry into the room could be upheld based on exigent circumstances that the contraband or buy money would be removed and/or destroyed.
DISCUSSION
Well-settled principles govern an appellate courts review of an order denying a motion to suppress. We review the trial courts factual findings under the deferential substantial evidence standard, but rule de novo as to the applicable rule of law. (People v. Ayala (2000) 23 Cal.4th 225, 255.) Exercising our independent review, we apply the governing rule of law to the facts. (Ibid.)
A warrantless entry into ones residence is presumptively unreasonable. (People v. Bennett (1998) 17 Cal.4th 373, 384; People v. Ramey (1976) 16 Cal.3d 263, 275-276.) Exceptions to this general rule apply, e.g., "exigent circumstances;" and the burden is on the prosecution to justify the warrantless search. (People v. Frye (1998) 18 Cal.4th 894, 989; People v. Williams (1998) 45 Cal.3d 1268, 1300-1301.) Citing People v. Bennett, supra, 17 Cal.4th 373, appellant asserts the trial court erred in finding exigent circumstances and the evidence resulting from the warrantless entry should have been suppressed. Appellant also argues that any exigency that did exist was of the officers own making within the meaning of People v. Bellizzi (1995) 34 Cal.App.4th 1849. His claims are untenable.
The exigent circumstances exception applies where there 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." (People v. Ramey, supra, 16 Cal.3d 263, 276.) There is no ready litmus test to determine whether such circumstances exist, and in each case the claim of exigency must be measured by the facts known to the officers. (Ramey, at p. 276; People v. Bennett, supra, 17 Cal.4th 373, 385.) Circumstances deemed relevant include "`(1) the degree of urgency involved and the amount of time necessary to obtain a warrant [citations]; (2) reasonable belief that the contraband is about to be removed [citations]; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought [citation]; (4) information indicating the possessors of the contraband are aware that the police are on their trail [citation]; and (5) the ready destructibility of the contraband and the knowledge "that efforts to dispose of the narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic" [citations]." (People v. Bennett, supra, 17 Cal.4th at p. 385.)
Conversely police are precluded from creating their own exigency by resorting to a "ruse" or other illegal means. In People v. Bellizzi, supra, 34 Cal.App.4th 1849 plainclothes officers had a hotel employee knock on the door of the defendants room. When the defendant answered, he panicked at the sight of armed strangers in plain clothes rather than the hotel employee he had expected. The appellate court concluded that "[w]hile the officers might at that point have justifiably feared [the defendant] might attempt to defend himself, with a gun or otherwise, this exigency was created by the officers themselves." (Bellizzi, supra, at p. 1852.)
Similarly in People v. Rodriguez (1981) 123 Cal.App.3d 269, a police officer who merely suspected drug activity at an apartment, decided "to conduct an investigation" by having another officer go to the front door and ask for someone inside the apartment. When the occupants opened the front door but not the outer screen door, the original officer identified himself and demanded that the door be opened. The occupants chose not to comply and began running. The officers burst in upon the occupants. (Id. at p. 272.) The appellate court noted "that the officers did not have, nor did they claim to believe they had, any cause sufficient to justify their forced entry, with or without prior judicial approval, until after they had demanded that the door thereto be opened in connection with their continuing investigation." (Id. at p. 273.)
We agree with the trial court that the officers entry in this case was justified by exigent circumstances. Following the officers observations of the hand-to-hand sale by Bumphus to appellant, they had probable cause to conclude there was evidence of drug sales inside room 15, including the pre-recorded $20 bill and rock cocaine. When Watson knocked on the motel room door and identified himself, received no response, but instead heard the sound of running steps, he reasonably believed the occupants were attempting to dispose of the contraband and/or the buy money, both of which were readily destructible. Additionally, Watson reasonably feared the occupants were trying to flee with the contraband and/or buy money because the exact layout of the motel was not known to police.
This is not a case where police intentionally fabricated their own exigency to evade Fourth Amendment protections. Appellant suggests the detention of Love was "part of the police-created exigency" if it alerted the occupants of the motel room to the officers presence. However, Loves detention was entirely proper, although unanticipated. It was not orchestrated by the officers as a means of obtaining otherwise unlawful entry into room 15 under the guise of exigency.
DISPOSITION
The judgment is affirmed.
We concur: JOHNSON, Acting P. J., ZELON, J.