California, United States of America
The following excerpt is from People v. Gentry, 7 Cal.App.4th 1255, 9 Cal.Rptr.2d 742 (Cal. App. 1992):
Under the procedural posture here of a motion to suppress denied by the municipal court and renewed in the superior court upon the preliminary hearing transcript alone, we are concerned solely with the findings of the municipal court. (People v. Snead (1991) 1 Cal.App.4th 380, 384, 1 Cal.Rptr.2d 892.) In reviewing the magistrate's denial of appellant's motion to suppress, factual findings are treated under the deferential substantial-evidence standard. (People v. Williams, supra, 45
Page 746
" '... [F]ear or apprehension alone that evidence will be destroyed will not justify a warrantless entry of a private home.' [Citation.] Instead, '[t]here must exist "specific and articulable facts which, taken together with rational inferences ...," support the warrantless intrusion.' " (People v. Koch, supra, 209 Cal.App.3d at p. 782, 257 Cal.Rptr. 483.) The only evidence of urgency and threat of removal of evidence was the informant's statement that marijuana was being sold by Dallas out of the trunk of his car at a "very fast rate." This "very fast rate" was wholly undefined. There was no evidence of how much marijuana was sold or in what period of time. There was also no evidence that the marijuana, some of which was believed to be stored at the apartment, would be depleted by the time a warrant could be issued. In fact, the police did not even know if marijuana was actually being stored at the apartment. As for the other Rubin factors, there was no showing of danger to police officers had they guarded the apartment while seeking a search warrant and no showing that the police believed that Dallas had accomplices in the apartment who would suspect his apprehension and destroy the marijuana. In fact, the police had no information of Dallas working with others and did not even know if anyone was in the apartment. While we recognize that marijuana can be readily destroyed, there was no evidence that its destruction was threatened in this case.
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