Opinion
NOT TO BE PUBLISHED
Superior Court County Nos. BA268225, BA314241 of Los Angeles Mary H. Strobel, Judge
Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Ryan B. McCarroll, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Derrick Tanniehill appeals the judgments entered after he pleaded no contest to possessing marijuana for sale (Health & Saf. Code, § 11359, BA314241), and admitted that in committing the offense he violated his probation in another case (BA268225). He was granted three years probation for the possession offense, and his probation in the other case was reinstated. He contends the trial court erred in denying his motion to suppress the marijuana found in his possession. We affirm.
STATEMENT OF FACTS
On December 16, 2006, three plain-clothed Los Angeles police officers parked across the street from the apartment building at 6320 South 11th Avenue in an unmarked car after receiving an anonymous tip that marijuana was being sold from apartment No. 7. Although the front door to the apartment was not visible from the officers' vantage point, they could see the security door that led to the apartment and the one below it. On three separate occasions, the officers saw individuals enter the building through the security door and then leave within two or three minutes.
After about 30 minutes, the officers went to apartment No. 7 and knocked on the front door. As soon as the door opened, the officers could smell the odor of marijuana emanating from the apartment. When the officers identified themselves, the man who had answered the door immediately closed and locked it. After he did so, the officers heard hurried footsteps inside. Believing that the individual who had answered the door was either fleeing, arming himself, or disposing of contraband, the officers retrieved entry tools from their vehicle, returned to the front door of the apartment, and forced it open. Inside, the officers found Gerald Jones, who had opened the door, Tanniehill, and 13 baggies of marijuana.
DISCUSSION
Tanniehill contends the trial court erred in denying his motion to suppress the marijuana found in his possession because it was obtained in violation of his Fourth Amendment rights. He claims the search was not supported by probable cause because the officers who conducted it "had no justification to even knock on [his] door" and that there were no exigent circumstances justifying their warrant less entry into the apartment where the marijuana was found.
"'The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In conformity with the rule at common law, a warrant less arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.' [Citation.] When, as here, the arrest occurs in the home, additional principles come into play. 'It is a "basic principle of Fourth Amendment law" that searches and seizures inside a home without a warrant are presumptively unreasonable.' [Citation.] Indeed, 'the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed."' [Citation.] The requirement of a warrant 'minimizes the danger of needless intrusions of that sort.' [Citation.] [¶] Yet, as with so much of its Fourth Amendment jurisprudence, the high court has stopped short of erecting a categorical bar. The presumption of unreasonableness that attaches to a warrant less entry into the home 'can be overcome by a showing of one of the few "specifically established and well-delineated exceptions" to the warrant requirement [citation], such as "'hot pursuit of a fleeing felon, or imminent destruction of evidence, . . . or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling'" [citation]. The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors such as the imminent destruction of evidence or the need to prevent a suspect's escape.' [Citation.]" (People v. Thompson (2006) 38 Cal.4th 811, 817-818.)
The trial court found there was probable cause for the search of Tanniehill's apartment and that the warrant less entry was justified by exigent circumstances. We review these findings independently because the underlying facts are undisputed. (People v. Thompson, supra, 38 Cal.4th at p. 818.)
We agree with the People that Tanniehill waived his right to challenge the probable cause finding by failing to raise it below. (People v. Williams (1999) 20 Cal.4th 119, 136.) In any event, the claim fails. To the extent Tanniehill argues that the officers had to justify their decision to knock on his front door, "there is nothing in our constitutional jurisprudence that makes it illegal for police officers to knock on a person's door unless they first reasonably suspect the person has committed a crime." (People v. Jenkins (2004) 119 Cal.App.4th 368, 374.) Moreover, "the Fourth Amendment does not require police to corroborate an anonymous tip before seeking consent to enter and search a residence. Even if acting on an anonymous, uncorroborated tip, police may knock on the door of a residence, speak with the occupant, and request permission to enter and search." (People v. Rivera (2007) 41 Cal.4th 304, 308, 310.) Because such a consensual encounter does not implicate the Fourth Amendment, it need not be supported by an "articulable suspicion of criminal activity." (Id., at p. 309.)
We are also unpersuaded by Tanniehill's argument that the odor of marijuana coming from his apartment did not give the officers probable cause for a search. According to Tanniehill, "the odor of burning marijuana inside a home is not per se evidence of criminal activity" because his use of marijuana may have been lawful under the Compassionate Use Act (Health & Saf. Code, § 11362.765). Our Supreme Court has essentially rejected this argument (People v. Mower (2002) 28 Cal.4th 457, 467-469), and we are bound by that decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). In any event, the officers had also observed activity tending to corroborate the anonymous tip. Those observations, considered in conjunction with the odor, gave the officers probable cause to believe that the occupants were in possession of marijuana for sale, and not merely for their personal use.
Moreover, we agree with the trial court that there were exigent circumstances justifying the officers' decision to enter Tanniehill's apartment without first obtaining a warrant. "'. . . ". . . 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." ' [Citations.]" (People v. Panah (2005) 35 Cal.4th 395, 465.) The officers had received a tip that marijuana was being sold from the apartment, and had observed activity consistent with drug transactions. When the front door opened, the officers could smell the odor of marijuana. The individual who answered the door immediately closed and locked it after the officers identified themselves, then the officers heard hurried footsteps inside. These articulated facts gave the officers probable cause to believe that marijuana was being sold from the apartment, and that the individual who had answered the door was immediately going to destroy the evidence. "[I]t is common knowledge that those who possess drugs often attempt to destroy the evidence when they are observed by law enforcement officers [citation] . . . ." (People v. Ortiz (1995) 32 Cal.App.4th 286, 293; see also United States v. Santana (1976) 427 U.S. 38, 43 ["Once Santana saw the police, there was . . . a realistic expectation that any delay would result in destruction of evidence"].) Under the circumstances, the officers did not violate the Fourth Amendment by conducting a warrant less entry into the apartment.
Tanniehill's reliance on United States v. Munoz-Guerra (5th Cir. 1986) 788 F.2d 295, is misplaced. Aside from the fact that we are not bound by lower federal court decisions, even on federal questions (People v. Cleveland (2001) 25 Cal.4th 466, 480), the case is in apposite. In Munoz-Guerra, the Drug Enforcement Agency (DEA) conducted surveillance of a condominium after receiving an anonymous tip that individuals with firearms were stashing drugs there. After one of the agents looked through a ground floor window and saw illegal drugs inside, two agents climbed over the backyard fence and knocked on the patio door. When the defendant appeared at the door, the agents ordered him to place his hands on the glass and slowly open the door. The defendant said the door was locked, and indicated he was going to another room for the key. Fearing that the defendant might return with a gun or destroy contraband, the agents kicked in the door and entered the condominium. The United States Court of Appeals for the Fifth Circuit reversed the district court's decision to admit evidence obtained during the search because the DEA agents had effectively created the exigent circumstances purporting to justify their warrantless entry by knocking on the patio door. The court reasoned: "Our past opinions have consistently emphasized that without reason to believe that a criminal suspect was aware of police surveillance, the mere presence of firearms or destructible, incriminating evidence does not create exigent circumstances. [Citations.] In the instant case, it was possible to secure the condominium covertly from the outside. There was no basis, on these facts, for believing that resort to a magistrate would have created risks of a greater magnitude than those which are present in any case where the police have probable cause but delay entry pending receipt of a warrant." (Munoz-Guerra, at p. 298, fn. omitted.)
In Munoz-Guerra, the DEA agents had probable cause to obtain a warrant when one of them saw illegal drugs through the window. No further investigation was necessary. By contrast, the officers in this case only had a reasonable suspicion that drugs were being sold from Tanniehill's apartment when they knocked on the front door. As we have already noted, the police do not violate the Fourth Amendment by knocking on the door of a residence in the course of an investigation, even if they are merely acting on an anonymous, uncorroborated tip. (People v. Rivera, supra, 41 Cal.4th at pp. 308, 310.)
Tanniehill's reference to United States v. Vega (5th Cir. 2000) 221 F.3d 789, is also unavailing. In Vega, the police followed a car to a residence after receiving an anonymous tip that its occupants were armed and carrying a large amount of cash for a drug purchase. Although none of the officers had observed any evidence of drugs, money, or weapons, nine officers surrounded the house. The court described the incident as follows: "Three of the officers went to the front door, one dressed in uniform, the other two wearing bullet proof vests clearly marked 'POLICE.' One of the officers saw someone inside move quickly to the back of the house. He began to knock, simultaneously calling out 'Brownsville police.' Vega, obviously aware of the officers' presence, exited the house through its back door and was arrested as he attempted to go into a nearby alley. [One of the officers] climbed the perimeter fence into the backyard and, hearing 'movement' inside the house, he said that he decided to enter same through the door left open by Vega in order to protect the safety of his fellow officers." (Id., at p. 794.)
The court of appeals, relying "in large part" on its decision in Munoz-Guerra, concluded that the officers had created the exigent circumstances purporting to justify the warrant less entry into the residence. The court stated: "The matter at bar is similar to Munoz-Guerra in all relevant respects. The police here believed the suspects to be armed and in possession of easily-disposed-of illicit drugs. Yet, without justification, they abandoned their secure surveillance positions and took action they believed might give the suspects cause and opportunity to retrieve the weapons or dispose of the drugs. Their decision to take this action was not justified by an absence of time to secure a warrant or by any other reasonable predicate. The record is devoid of evidence that an exigency was created by the suspects' awareness of police surveillance, or that the suspects were attempting to leave the premises with drugs, or otherwise seeking to dispose of same. No exigency was an otherwise natural occurrence during the course of the police investigation. The police may not now rely on these circumstances of their own making to support the proposition that the warrant requirement should be excused." (United States v. Vega, supra, 221 F.3d at pp. 799-800, fns. omitted.)
The Fifth Circuit's conclusion in Vega that the officers deliberately created the exigent circumstances with the intent to evade the warrant requirement is supported by the particular facts in that case. That court has since made clear, however, it "'. . . will not second-guess the judgment of law enforcement officers where reasonable minds may differ'" in assessing whether exigent circumstances justify a warrant less entry. (United States v. Gould (5th Cir. 2004) 364 F.3d 578, 590-591.) The facts in this case, unlike those in Vega, are consistent with the conclusion that the officers merely intended to further their investigation by knocking on Tanniehill's door. Moreover, in Vega the police surrounded the defendant's residence and demanded that he open the door, while the contact in this case was purely consensual. We are bound by our Supreme Court's pronouncement that the Fourth Amendment does not require the police to justify their decision to knock on the door of a residence where the encounter is consensual. (People v. Rivera, supra, 41 Cal.4th at p. 309; Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
The judgments are affirmed.
We concur: GILBERT, P.J. COFFEE, J.