California Criminal Lawyer Blog

Two Pacifica police officers observed several individuals smoking marijuana in an apartment rented by defendant John Hua. The cops entered, without either a warrant or consent, and eventually discovered growing marijuana plants and a cane sword.

Hua was originally charged with cultivation of marijuana (H&S Code §11358) (count 1), possession for sale of marijuana (H&S Code §11359) (count 2), and felony possession of a cane sword (PC §12020(a)) (count 3).

In the trial court, Hua challenged the cops warrantless entry and the subsequent search of his apartment in a motion to suppress the evidence seized by the cops. (PC §1538.5.) The trial court denied the motion, concluding the entry was justified by exigent circumstances.

Hau then entered a plea of nolo contendere to cultivation of marijuana (H&S Code §11358) and misdemeanor possession of a cane sword (PC §12020(a).) On appeal, Hua challenged the denial of his motion to suppress (Penal COde §1538.5(m)).

The California First District Court of Appeal, Division Five, rejected the People’s contention that exigent circumstances justified the warrantless entry of def.’s home. Under Welsh v. Wisconsin (1984) 466 U.S. 740, 753-754 (Welsh), a finding of exigent circumstances is categorically precluded when the only crime the cops are aware of when they enter a residence to arrest the occupant and/or seize contraband is possession of no more than 28.5 grams of marijuana.

Comment: While not a DUI case, this DCA1 opinion relies on U.S. Supreme Court precedent - Welsh v. Wisconsin (1984) 466 U.S. 740, 753-754 (Welsh), a DUI case where the cops made a warrantless entry into a residence and also effected a warrantless arrest, a case which you may recall was specifically distinguished by our California Supreme Court in People v. Thompson (2006) 38 C4th 811 on the grounds that in California, a first-time DUI is a misdo, not a non-jailable civil offense and, oh yes, there were exigent circumstances here – alcohol burn-off. Oh, right!

Click HERE for the full opinion.

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