Cleaver v. Superior Court

594 P.2d 984, 24 Cal. 3d 297, 155 Cal. Rptr. 559, 1979 Cal. LEXIS 259

• Court: California Supreme Court
• Decided: May 23, 1979
• Docket: Docket Nos. S.F. 23758, 23759
• Status: Published

Opinions

Opinion

RICHARDSON, J.

— Defendant Eldridge Cleaver was charged, in an indictment returned by the Alameda County Grand Jury in 1968, with three counts of attempted murder (Pen. Code, § 187), and three counts of assault with a deadly weapon upon police officers (id., § 245, subd. (b)). Subsequent to his indictment, defendant moved to suppress certain evidence pursuant to Penal Code section 1538.5. After hearing evidence and argument, the trial court granted the motion to suppress as to some of the items challenged, but denied it as to others, Both the defendant and the People seek writs of mandate, and we must now determine, on the basis of the following undisputed facts, which of the challenged items, if any, must be suppressed.

The Basement Searches

The charges against defendant arose from an alleged shootout between Oakland police officers and persons associated with the Black Panther Party. At approximately 9 p.m. on April 6, 1968, Officers Darnell and Jensen, while on patrol in the vicinity of 2095 Union Street, Oakland, California, were fired upon unexpectedly by several assailants who fled on foot. Both officers were wounded, and a lengthy gun battle ensued as other Oakland officers were summoned to the scene.

Six of defendant Cleaver’s codefendants were arrested, and defendant and his companion, Bobby Hutton, sought refuge in the basement of the residence at 1218 28th Street in Oakland. The residence was owned and occupied by Nellie Pierre, who for her safety was carried from the house by police officers during the 90-minute period while the officers laid seige to the basement where the two suspects were cornered. At approximately 11 p.m. a tear gas cannister set the building afire driving defendant and Hutton from the basement. Hutton was fatally shot when he exited the building, and Cleaver was arrested.

When police technicians McCurdy and Hussey arrived at the scene following defendant’s arrest, at about 11:30 p.m., the area had already been cordoned off and sealed. McCurdy learned from his fellow officers that gunfire had been exchanged with individuals in the basement, that the basement had caught fire from tear gas cannisters, and that one of the suspects had been killed in front of the building. As the firemen were putting out the fire McCurdy and Hussey, wearing gas masks, entered the basement. Although they were able to ascertain that no persons remained in the basement, the large quantity of tear gas prevented necessary visibility and they left the basement to wait for the fumes, gas, and smoke to subside.

At 2 a.m. McCurdy reentered the basement when the gas had partly cleared. It was stipulated that the reentry was made “primarily” to look for physical evidence, and the officer saw, photographed and seized a partially burned automatic rifle. The lingering tear gas remained quite strong and McCurdy’s eyes were watering and burning. During the 2 a.m. search, McCurdy also saw and removed a live tear gas cannister, which was thereupon placed in a bomb removal container and later disposed of by a bomb squad at the Oakland airport. McCurdy also removed a few spent cartridge casings as well as some live .223 caliber shells.

Since they had not yet been able to conduct a thorough search because of continued impaired visibility, McCurdy and Hussey secured the area, sealed it off with an officer on guard, and resumed their other duties.

Later, about 7 a.m., Sergeant Reed arrived and was assigned to search the basement for any evidence which had not been seen or found during the night. About 8 a.m. he entered the basement. There were still approximately three inches of water on the floor and the basement was wholly charred and dirty with rubble everywhere. The air remained smoky with a residue of tear gas. The officer observed a sleeve or collar of a jacket protruding above the murky, opaque water. He also recovered two other jackets, live and expended ammunition and other miscellaneous items in the jacket pockets, as well as pocket cartridge belts.

The People acknowledge that no search warrant was obtained for any of the entries or searches of the basement, and defendant forcefully challenges their constitutional propriety.

In determining the admissibility of the items seized during the basement searches, we apply well established principles. The Fourth Amendment to the federal Constitution and article I, section 13, of the California Constitution equally guarantee “The right of the people to be secure in their persons, houses, papers, and effects” against unreasonable searches and seizures. We have said that a search within the meaning of these constitutional provisions occurs whenever a person’s reasonable expectation of privacy is violated by governmental intrusion. (People v. Edwards (1969) 71 Cal.2d 1096, 1100-1104 [80 Cal.Rptr. 633, 458 P.2d 713].) It is further settled that, in the absence of one of a number of carefully circumscribed exceptions, such a search is per se unreasonable if it is not conducted pursuant to a valid search warrant. (Mincey v. Arizona (1978) 437 U.S. 385 [57 L.Ed.2d 290, 98 S.Ct. 2408]; People v. Cook (1978) 22 Cal.3d 67, 97 [148 Cal.Rptr. 605, 583 P.2d 130], and cases cited therein.)

One of the recognized exceptions to the warrant requirements arises when “exigent” circumstances justify the conduct of a warrantless search. In amplifying this principle in People v. Ramey (1976) 16 Cal.3d 263, 276 [127 Cal.Rptr. 629, 545 P.2d 1333], we stated: “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.” (Italics added.)

Defendant concedes that the officers’ initial entry at 11:30 p.m. was valid, on the basis of exigent circumstances which existed at that time. Defendant, however, asserts that any exigency had ceased to exist by the time the succeeding 2 a.m. and 8 a.m. searches were conducted. To the contrary, as we will demonstrate, there exist several bases on which to support a holding that these later searches were proper continuations of the initial warrantless search which was frustrated by the heavy quantity of gas, smoke and fumes. Since the officers had a conceded right to conduct a full and complete inspection of the basement at 11:30 p.m., we conclude that the subsequent searches of those same premises, occurring within a reasonable time thereafter and based upon a continued state of exigent circumstances, were reasonable under the foregoing constitutional provisions.

A very similar factual situation was recently presented to the United States Supreme Court in Michigan v. Tyler (1978) 436 U.S. 499 [56 L.Ed.2d 486, 98 S.Ct. 1942]. The high court in Tyler upheld a warrantless police search of a building conducted seven hours after firemen had extinguished the flames and a fire chief had entered the premises seeking evidence of arson. The court reasoned that the later police entry was a “continuation” of the initial entry and was undertaken within “a reasonable time” thereafter. The fire chief arrived at the scene of a fire at 2 a.m., just as the fire department was “watering down smoldering embers” on the premises. (P. 501 [56 L.Ed.2d at p. 493].) Upon being informed that several containers of flammable liquid had been found in the building, the chief entered the premises without a warrant, examined the containers and, concluding that the “fire could possibly have been an arson” (p. 502 [56 L.Ed.2d at p. 493]), called the police.

A police detective arrived at the scene of the fire at 3:30 a.m., approximately an hour and a half after the smoldering embers of the fire had been extinguished. He entered the building similarly without a warrant and examined the premises for evidence of arson. While in the building the detective took several pictures of the containers and of the interior of the building and seized the containers, but “finally abandoned his efforts because of the smoke and steam.” (Ibid. [56 L.Ed.2d at p. 493].) By 4 a.m., the fire having been entirely extinguished, both the fireman and the police detective left the scene. At 9 a.m., when the smoke and steam had cleared from the building and daylight rendered a search of the premises safer and more informative, the police detective and fire chief returned to the scene, reentered the premises, again without a warrant, and gathered additional evidence that was ultimately introduced at the defendant’s arson trial.

The lower court in Tyler, while agreeing that a burning building constituted a sufficient exigency to render a warrantless entry reasonable and constitutional, nonetheless held that “the exigency justifying a warrantless entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame.” (Id., at p. 510 [56 L.Ed.2d at p. 498].) The Supreme Court, however, rejected such a characterization of the exigencies of the circumstances as “unrealistically narrow,” explaining: “Prompt determination of the fire’s origin may be necessary to prevent its recurrence, as through the detection of continuing dangers such as faulty wiring or a defective furnace. Immediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And, of course, the sooner the officials complete their duties, the less will be the subsequent interference with the privacy and recovery efforts of the victims.” (Ibid. [56 L.Ed.2d at pp. 498-499], italics added.)

The high court explained: “For these reasons, officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished.” (Ibid. [56 L.Ed.2d at p. 499].) Moreover, the court also concluded that the “exigent circumstances” justifying an immediate warrantless search of the scene of a fire similarly justified the continuation of the search in that case during the later morning hours, despite the failure of the officers to obtain a warrant.

The court reasoned: “On the facts of this case, we do not believe that a warrant was necessary for the early morning re-entries [the following day]. As the fire was being extinguished, Chief See and his assistants began their investigation, but visibility was severely hindered by darkness, steam and smoke. Thus they departed at 4 a.m. and returned shortly after daylight to continue their investigation. Little purpose would have been served by their remaining in the building, except to remove any doubt about the legality of the warrantless search and seizure later that same morning. Under these circumstances, we find that the morning entries were no more than an actual continuation of the first and the lack of a warrant thus did not invalidate the resulting seizure of evidence.” (Id., at p. 511 [56 L.Ed.2d at p. 499], italics added.)

As the dissent herein observes, the high court did invalidate a subsequent evidentiary search conducted several weeks after the fire had occurred. Contrary to the dissent, however, this subsequent search was not held invalid because it was solely aimed at gathering evidence, but because it occurred long after any exigency had passed. As the Tyler court explained, “The entries occurring after January 22, however, were clearly detached from the initial exigency and warrantless entry.” (Ibid. [561 L.Ed.2d at p. 499].)

The Tyler rationale is fully applicable to the present case. The 11:30 p.m. search was thwarted by residual smoke, fumes and tear gas. The relatively short delays until 2 a.m. and 8 a.m., necessitated by darkness and continuing impaired visibility, cannot be deemed constitutionally improper or unreasonable under all the circumstances in this case. These circumstances, all of which were known to the officers conducting the two challenged searches, included the following: Two police officers had been wounded in an ambush, and a violent gun battle had ensued. Defendant Cleaver’s colleague had been killed in an exchange of gunfire with the police. The subject building had been set on fire by exploding tear gas cannisters; dangerous weapons, explosives and ammunition might have remained inside. The number of assailants, whether they were armed, their then location and identities were all unknown; the basement might have contained evidence leading to the immediate apprehension of remaining suspects. In short, the situation was a tense, volatile and serious business full of uncertainty and confusion. Considering the hour, place and general circumstances, the delayed entries, caused by the officers’ physical inability to conduct a thorough search, were constitutionally permissible.

As in Tyler, the 2 a.m. and 8 a.m. entries were justified by the need to preserve evidence threatened with destruction by fire or water in the basement. Having been fired upon from the basement and having flushed out their assailants by the use of tear gas, it was reasonable for the officers to believe that the basement may have contained evidence identifying their attackers, or containing contraband such as illegal guns or other weapons. The building had been partially burned. Water damage obviously was heavy. The initial 11:30 p.m. entry was aborted because of the officers’ inability to see. Any papers or records in the basement could have been burned or rendered illegible by the water. Wooden or plastic materials could have been burned or been in danger of obliteration, and in fact the automatic rifle which was seized during the 2 a.m. search had already been partially burned. Similarly, ammunition belts or containers as well as live ammuniton may well have been in danger of burning or exploding. In our view, in combination, these physical circumstances created an exigency fully justifying the warrantless entries.

Furthermore, because the basement itself was partially burned, the very safety of the building and its contents was threatened. The fire was caused by exploding tear gas cannisters which were lobbed into the basement by the police. The continuing threat to the building amply justified a reentry to determine if the fire was continuing or if other threats to the building existed.

Defendant argues that the officers’ stated reason for the reentry was to search for evidence, rather than to protect the building or its contents.

First of all, as we have explained above, a warrantless search to preserve evidence from possible destruction is entirely proper if conducted under exigent circumstances. Second, the record herein shows only that the “primary” reason was a search for evidence. Obviously, there existed other reasons relating to the general safety of the premises and its contents which had been subject to substantial fire and water damage. The 2 a.m. inspection was well rewarded for the police did, in actuality, find a live tear gas cannister of the type which had initially set fire to the building. We think it reasonable to conclude that it remained a threat. It was removed, placed in a bomb disposal box, and rendered safe by a bomb squad.

Finally, our conclusion that the exigencies of the circumstances justified the warrantless entries and limited searches in question here, is reinforced by the fact that the police were aware that the residence building was owned by an apparently innocent third party, and not by any of the defendants or suspects of the crime. In this case defendant intruder vicariously asserts the privacy rights of the owner. As we have noted, the police had ample reason to suspect that weapons, ammuniton and perhaps other potentially dangerous items (e.g., tear gas cannisters) remained in the fire-damaged basement. Under such circumstances it is wholly unrealistic to presume that an absent property owner would either expect, or desire, the police to postpone, until a search warrant was obtained, entry onto the premises whether for a search for evidence or to protect the property.

Defendant insists, however, that the People have failed to show that it was impossible for the police to obtain a warrant prior to the 2 a.m. and 8 a.m. entries. Viewed in hindsight, from the comfort of our chambers, it might be possible to fault the police for failing to secure a warrant in the early morning hours of April 7, 1968. Such a perspective, however, ignores the acute realities and dangers which the police faced on the night in question. The shooting and fire at 1218 28th Street was only one incident in an explosive, extensive, and continuing series of criminal incidents. The search for additional participants continued after defendant had been captured and available police officers were undoubtedly employed in that endeavor. (See People v. Sommerhalder (1973) 9 Cal.3d 290, 306-307 [107 Cal.Rptr. 289, 508 P.2d 289].) The time period involved a late Saturday night and an early Sunday morning when a magistrate may not have been readily available. We have no difficulty in concluding that the police, faced with a genuine emergency, were authorized to employ reasonable emergency methods to cope with the situation.

In sum, the totality of the circumstances in this case discloses that the 2 a.m. and 8 a.m. warrantless searches were reasonable, being impelled by exigent circumstances, and as extensions of the 11:30 p.m. aborted search. Accordingly, the evidence seized during the course of both searches is admissible at defendant’s trial.

2. The Toyota Search

Another codefendant of Cleaver, David Hilliard, was arrested in the residence of Bertha Allen at 1226 28th Street, which was adjacent to the house in which Cleaver and Hutton took shelter during the shootout. After Hilliard’s arrest, Ms. Allen found two keys on a black leather strap on the dresser in the bedroom where he had been hiding, and gave them to a police officer who noted they appeared to be for a Toyota automobile. The police then asked the Department of Motor Vehicles (DMV) to identify all cars registered to any of the eight arrestees taken into custody that night; the DMV check revealed that Cleaver’s codefendant Wendell Wade was registered as the coowner of a Toyota. Wade’s Toyota was located during the early hours of April 7 on an Oakland public street approximately 37 blocks from the scene of the initial shooting on Union Street. The vehicle was towed to the Oakland Police Department parking lot. At 8 a.m. that morning the keys Ms. Allen had found were used to open the trunk of Wade’s automobile and several weapons as well as some ammunition were seized as evidence. This search, like those described above, was conducted without first obtaining a search warrant or the consent of defendant or the owner of the vehicle.

Defendant contends that the automobile search was illegal not only because of the failure to obtain a warrant but, more fundamentally, because a warrant could not have been obtained for want of probable cause.

It is axiomaticujthat the search of an automobile — whether pursuant to a warrant or not — must be supported by probable cause. (People v. Dumas (1973) 9 Cal.3d 871, 884 [109 Cal.Rptr. 304, 512 P.2d 1208]; Dyke v. Taylor Implement Co. (1968) 391 U.S. 216, 221 [20 L.Ed.2d 538, 543, 88 S.Ct. 1472].) We recently noted that probable cause exists to conduct a warrantless automobile search “where an officer is aware of facts that would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion that the object of the search is in the particular place to be searched. [Citations.]” (People v. Dumas, supra, at p. 885.) Was that standard met?

The recital of the foregoing facts fails to suggest the presence of any “strong suspicion” that the automobile towed from the street contained any specific property lawfully subject to seizure. The People assert that the circumstances under which the police obtained the keys indicated that Hilliard had tried to “dissociate” himself from them and had thus demonstrated his fear that the car which the keys fit would link him to the crimes with which he was charged. The argument is unpersuasive. Wade’s automobile was seized before it was known that the keys found at the place of Hilliard’s arrest fit that particular Toyota. Furthermore, the automobile was not found in the vicinity of Hilliard’s arrest, or even reasonably nearby — it was located a substantial distance away in a wholly different part of the city.

We conclude, accordingly, that the trial court correctly ruled illegal the automobile, search here in issue, and suppressed the evidence resulting therefrom.

In S.F. 23758, the alternative writ is discharged and the peremptoiy writ is denied. In S.F. 23759, let a peremptory writ of mandate issue in accordance with this opinion.

Tobriner, J., Clark, J., and Manuel, J., concurred.