Opinion
ANDERSON, J.*
Defendant Charlie B. Robinson (appellant) appeals from a conviction for possession of marijuana.
[530] On April 25, 1983, Officer James Miller, who had been employed in the Narcotics Detail of the San Francisco Police Department, received an anonymous telephone call regarding narcotics activity. The caller gave Officer Miller appellant’s name and address and told the officer that appellant had pounds of marijuana as well as a .38 caliber gun in his hotel room at 574 Third Street, apartment No. 253, San Francisco. The officer went to the address given in an attempt to purchase marijuana. He arrived at the hotel at approximately 5:30 p.m. and went directly to appellant’s room.
On arrival Officer Miller, who had neither a search warrant nor an arrest warrant with him, knocked at the door without identifying himself as a police officer. Appellant opened the door about two or three inches before the safety chain became taut and “stuck his head around the door.” Then the officer said, ‘“Say, Charlie, what’s doing? ... I heard that something is happening up here. I was wondering if I could get a bag.’”1 Appellant replied that he did not know what Miller was talking about and denied having any marijuana.
Through the partially open door, Officer Miller was able to see an open suitcase on a bed with a large plastic bag containing brown vegetable matter in it. Based upon his training and experience the officer concluded that the bag contained marijuana. Miller then put his foot in the door, identified himself as a police officer and demanded entry.
After getting inside, Officer Miller arrested appellant for possession of marijuana and looked into the open suitcase. The suitcase contained 2 large and 29 small plastic bags comprising marijuana, and 64 hand-rolled marijuana cigarettes. The marijuana found by the officer weighed a total of 500 grams. The suitcase also yielded $235 worth of currency—$96 were in $1 bills and the rest in $5 and $10 denominations. Appellant then gave Officer Miller permission to search the rest of the apartment. The ensuing consent search revealed a scale under the kitchen sink and a .38 caliber revolver under the mattress of the bed.
Based upon the above facts appellant was charged with possession of marijuana for sale (Health & Saf. Code, § 11359). Appellant first pled not guilty to the charge. However, after his motions to suppress evidence (Pen. Code,2 § 1538.5) and to dismiss the information (§ 995) were denied, appellant withdrew his plea of not guilty and entered a guilty plea to the lesser charge of possession of marijuana (Health & Saf. Code, § 11357). Following a sentencing hearing, the court suspended the imposition of sentence and placed appellant on three years’ probation.
[531] Appellant’s principal contention on appeal is that the warrantless entry of his hotel room and the ensuing search were unlawful, calling for reversal of the conviction. (Payton v. New York (1980) 445 U.S. 573 [63 L.Ed.2d 639, 100 S.Ct. 1371]; People v. Ramey (1976) 16 Cal.3d 263 [127 Cal.Rptr. 629, 545 P.2d 1333].) We disagree with appellant and affirm the judgment.
While it has been generally held that warrantless arrests conducted in the home are unlawful in the absence of exigent circumstances (Payton v. New York, supra, 445 U.S. 573, 588 [63 L.Ed.2d 639, 651-652]; People v. Ramey, supra, 16 Cal.3d 263, 276), there is an apparent statutory exception to that rule in California. Section 836 provides in pertinent part that a peace officer may arrest a person with or without a warrant “(1) Whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.”
In the case at bench undercover Officer Miller rightfully standing in the common hallway of the building (People v. Szabo (1980) 107 Cal.App.3d 419, 428 [165 Cal.Rptr. 719]; People v. Howard (1976) 63 Cal.App.3d 249, 254 [133 Cal.Rptr. 689]), observed in plain view a large quantity of marijuana in appellant’s apartment. Since the possession of marijuana for sale constitutes a felony under the law (Health & Saf. Code, § 11359), the observation of the contraband was tantamount to witnessing the commission of a public offense (i.e., a commission of a public offense in the officer’s presence). Given the fact that section 836 explicitly authorizes a warrantless arrest in such an instance without listing any exception and also given the fact that section 836 has not been held unconstitutional in any case of which we are aware, appellant’s arrest without a warrant and the ensuing seizure of the contraband must be upheld upon this statute alone.
But even if we assume that section 836 is subject to the limitations set out in Ramey, the action of the police officer must be sustained on the ground that exigent circumstances existed which justified the warrantless arrest and search in this case.
“Exigent circumstances” justifying a warrantless arrest in a house or apartment mean “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 at p. 276, italics added; People v. Keltic (1983) 148 Cal.App.3d 773, 779 [196 Cal.Rptr. 243].) The determination whether exigent circumstances existed constitutes a factual question. “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 [532] facts known to the officers.” (People v. Ramey, supra, 16 Cal.3d at p. 276; see also People v. Edwards (1981) 126 Cal.App.3d 447, 458 [178 Cal.Rptr. 876]; James v. Superior Court (1978) 87 Cal.App.3d 985, 991 [151 Cal.Rptr. 270].)
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Opinion
ANDERSON, J.*
Defendant Charlie B. Robinson (appellant) appeals from a conviction for possession of marijuana.
[530] On April 25, 1983, Officer James Miller, who had been employed in the Narcotics Detail of the San Francisco Police Department, received an anonymous telephone call regarding narcotics activity. The caller gave Officer Miller appellant’s name and address and told the officer that appellant had pounds of marijuana as well as a .38 caliber gun in his hotel room at 574 Third Street, apartment No. 253, San Francisco. The officer went to the address given in an attempt to purchase marijuana. He arrived at the hotel at approximately 5:30 p.m. and went directly to appellant’s room.
On arrival Officer Miller, who had neither a search warrant nor an arrest warrant with him, knocked at the door without identifying himself as a police officer. Appellant opened the door about two or three inches before the safety chain became taut and “stuck his head around the door.” Then the officer said, ‘“Say, Charlie, what’s doing? ... I heard that something is happening up here. I was wondering if I could get a bag.’”1 Appellant replied that he did not know what Miller was talking about and denied having any marijuana.
Through the partially open door, Officer Miller was able to see an open suitcase on a bed with a large plastic bag containing brown vegetable matter in it. Based upon his training and experience the officer concluded that the bag contained marijuana. Miller then put his foot in the door, identified himself as a police officer and demanded entry.
After getting inside, Officer Miller arrested appellant for possession of marijuana and looked into the open suitcase. The suitcase contained 2 large and 29 small plastic bags comprising marijuana, and 64 hand-rolled marijuana cigarettes. The marijuana found by the officer weighed a total of 500 grams. The suitcase also yielded $235 worth of currency—$96 were in $1 bills and the rest in $5 and $10 denominations. Appellant then gave Officer Miller permission to search the rest of the apartment. The ensuing consent search revealed a scale under the kitchen sink and a .38 caliber revolver under the mattress of the bed.
Based upon the above facts appellant was charged with possession of marijuana for sale (Health & Saf. Code, § 11359). Appellant first pled not guilty to the charge. However, after his motions to suppress evidence (Pen. Code,2 § 1538.5) and to dismiss the information (§ 995) were denied, appellant withdrew his plea of not guilty and entered a guilty plea to the lesser charge of possession of marijuana (Health & Saf. Code, § 11357). Following a sentencing hearing, the court suspended the imposition of sentence and placed appellant on three years’ probation.
[531] Appellant’s principal contention on appeal is that the warrantless entry of his hotel room and the ensuing search were unlawful, calling for reversal of the conviction. (Payton v. New York (1980) 445 U.S. 573 [63 L.Ed.2d 639, 100 S.Ct. 1371]; People v. Ramey (1976) 16 Cal.3d 263 [127 Cal.Rptr. 629, 545 P.2d 1333].) We disagree with appellant and affirm the judgment.
While it has been generally held that warrantless arrests conducted in the home are unlawful in the absence of exigent circumstances (Payton v. New York, supra, 445 U.S. 573, 588 [63 L.Ed.2d 639, 651-652]; People v. Ramey, supra, 16 Cal.3d 263, 276), there is an apparent statutory exception to that rule in California. Section 836 provides in pertinent part that a peace officer may arrest a person with or without a warrant “(1) Whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.”
In the case at bench undercover Officer Miller rightfully standing in the common hallway of the building (People v. Szabo (1980) 107 Cal.App.3d 419, 428 [165 Cal.Rptr. 719]; People v. Howard (1976) 63 Cal.App.3d 249, 254 [133 Cal.Rptr. 689]), observed in plain view a large quantity of marijuana in appellant’s apartment. Since the possession of marijuana for sale constitutes a felony under the law (Health & Saf. Code, § 11359), the observation of the contraband was tantamount to witnessing the commission of a public offense (i.e., a commission of a public offense in the officer’s presence). Given the fact that section 836 explicitly authorizes a warrantless arrest in such an instance without listing any exception and also given the fact that section 836 has not been held unconstitutional in any case of which we are aware, appellant’s arrest without a warrant and the ensuing seizure of the contraband must be upheld upon this statute alone.
But even if we assume that section 836 is subject to the limitations set out in Ramey, the action of the police officer must be sustained on the ground that exigent circumstances existed which justified the warrantless arrest and search in this case.
“Exigent circumstances” justifying a warrantless arrest in a house or apartment mean “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 at p. 276, italics added; People v. Keltic (1983) 148 Cal.App.3d 773, 779 [196 Cal.Rptr. 243].) The determination whether exigent circumstances existed constitutes a factual question. “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 [532] facts known to the officers.” (People v. Ramey, supra, 16 Cal.3d at p. 276; see also People v. Edwards (1981) 126 Cal.App.3d 447, 458 [178 Cal.Rptr. 876]; James v. Superior Court (1978) 87 Cal.App.3d 985, 991 [151 Cal.Rptr. 270].)
In the case at bench the totality of the circumstances demonstrates that the delay resulting from an eventual obtaining of an arrest warrant would have irrevocably resulted in the loss or the destruction of evidence and that as a consequence, an emergency situation was present as a matter of law. The pertinent facts reveal that Officer Miller learned from an anonymous informer that appellant had been engaged in dope peddling, and had “pounds of marijuana” as well as a .38 caliber gun in his apartment. The anonymous informer also revealed appellant’s name and address. However, when Officer Miller, clad in plainclothes and posed as a street customer, went to appellant’s place of abode trying to buy marijuana from him, his offer was outright rejected by appellant who became obviously suspicious of a stranger showing up unannounced and without proper references. At the same time the officer observed, in plain sight, a large quantity of marijuana which was already packed in a suitcase. In this set of circumstances the officer faced an emergency situation indeed. Since appellant’s suspicion was already aroused and since the incriminating evidence (the marijuana) was in a mobile condition, the delay concomitant with obtaining an arrest warrant would have inexorably led to the destruction or loss of the evidence. Considering this extraordinary situation, the police officer was fully justified (if not mandated) in taking the immediate steps of revealing his identity, arresting appellant and seizing the contraband. In short, as the record established the existence of exigent circumstances, the case falls within the exception to the rule requiring a warrant. Consequently, appellant’s arrest and the seizure of the contraband were lawful under Ramey and its progeny.
Although not necessary for the determination of the present controversy, it bears mentioning that Ramey is clearly distinguishable from the case at bench. In Ramey, the police had probable cause to arrest the defendant for the offense of receiving stolen property, and also had plenty of time to obtain an arrest and search warrant before going to defendant’s residence. By contrast, Officer Miller’s information of appellant’s criminal activity rested solely upon the uncorroborated tip of an anonymous caller. It is, of course, axiomatic that the information of an anonymous informant does not provide the requisite probable cause for issuance of either an arrest warrant or a search warrant unless such information is sufficiently corroborated. (People v. Ramey, supra, 16 Cal.3d at p. 269; see also Aguilar v. Texas (1964) 378 U.S. 108, 114-115 [12 L.Ed.2d 723, 728-729, 84 S.Ct. 1509]; People v. Hill (1974) 12 Cal.3d 731, 760-761 [117 Cal.Rptr. 393, 528 P.2d [533]*5331], overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5 [135 Cal.Rptr. 786, 558 P.2d 872]; People v. Abbott (1970) 3 Cal.App.3d 966, 971 [84 Cal.Rptr. 40].) It follows that Officer Miller did not have probable cause to obtain a warrant prior to visiting appellant. However, when his suspicion based on the call of the anonymous informer ripened into probable cause by noticing the contraband in plain view on appellant’s premises, the emergency situation was already at hand requiring immediate measures on his part to prevent the destruction or loss of the evidence.
Since, in the present case, the warrantless arrest and search were justified under both the explicit statutory authority of section 836 and “the exigent circumstances” exception set forth in Ramey and its progeny, the additional issues raised by appellant need not be decided.
The judgment is affirmed.
Barry-Deal, J., concurred.