Tuesday, November 30, 2010
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Opening Clothes Dryer Not Unconstitutional Search, Court Rules
Panel Says Officer Was Entitled to Stop Machine’s Noise to Ensure His Safety
By SHERRI M. OKAMOTO, Staff Writer
A police officer’s discovery of marijuana in a clothes dryer during a probation compliance check when he opened the door to quiet the machine was not the result on an unreasonable search, this district’s Court of Appeal ruled yesterday.
Div. Five concluded that Tatiana Smith’s motion to suppress was properly denied since the state’s interest in stopping the noise created by the appliance to ensure the officers’ safety and the efficacy of the probation search outweighed the intrusiveness of the action.
Los Angeles police officers and a probation officer came to Smith’s apartment in the Jordan Downs housing development in June 2009 while looking for Tyrell Jones, a probationer who had given Smith’s address as his place of residence.
According to the officers’ testimony, they asked Smith for admission to the apartment to do a compliance check on Jones, but Smith said he did not live there. The officers then asked if they could verify her statement, and Smith asked them to wait outside so she could dress.
Through an open window next to the door, the officers were able to see Smith walk towards the rear of the apartment. After she was out of their sight, they heard noises like dishes being moved and a clothes dryer being started.
Smith then returned to the front door, opened it and stepped aside. She said Jones was not within the apartment, but that her children and her brother were upstairs.
Strong Odor
Upon entering, the officers said they smelled marijuana, and the odor was strongest in the kitchen area, where they saw a shoebox filled with cash and plastic baggies similar to the ones often used to package marijuana. A clothes dryer in the kitchen was on, and making a loud “banging” noise, as though something metal was being tumbled inside.
The officers said they wanted to have Smith’s brother to have him come downstairs since that would be safer than proceeding upstairs themselves, so one of them opened the dryer door to turn the machine off in order to call out to him.
When the door to the dryer was opened, the officers saw a package of marijuana wrapped in cellophane and Smith admitted the drugs belonged to her. She later unsuccessfully sought to suppress this evidence contending the search which led to its discovery was invalid, then entered a plea of no contest to a charge of possession of marijuana with intent to sell.
Writing for the appellate court, Presiding Justice Paul Turner reasoned that Smith’s actions in opening the apartment door and standing aside constituted apparent voluntary consent to have the officers enter and search for Jones.
Turner noted “in the search warrant context…searching officers may take reasonable steps to secure the premises and insure their own safety,” and posited this
“officer safety analysis applies equally to a probation or consent search.”
Danger to Officer
The justice opined that the potential danger to the officers in conducting this search was increased “because it was apparent defendant or other persons with access to the apartment were engaged in narcotics trafficking” and they were searching for a probationer and former parolee who had been convicted of domestic violence.
In light of these increased risks to the officers, Turner said they “reasonably opened the dryer door to stop the very loud noise which inhibited…[them] from clearly ordering the individuals, who were upstairs, to walk downstairs in a manner consistent with the safety of all involved in the otherwise lawful encounter.”
Turner—joined by Justice Sandy R. Kriegler and specially assigned Los Angeles Superior Court Judge Sanjay Kumar—also directed the trial court to correct its minute order to reflect the $20 DNA testing fee was imposed pursuant to Penal Code Sec. 295, rather than Government Code Sec. 76104.7, and include various additional mandatory assessments, surcharge and penalties in the unpublished portion of the decision.
The attorneys on the case were Deputy Attorneys General Keith H. Borjon and Sharlene A. Honnaka for the state and Ann Krausz, under appointment, for Smith.
The case is People v. Smith, 10 S.O.S. 6633.
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