State v. Chapman

BUTTLER, P. J.,

concurring in part; dissenting in part.

I agree that the record supports the trial court’s finding that an operating methamphetamine lab is hazardous and that, if it is located in a residential area, exigent circumstances exist that would permit entry without a warrant, if the officers have probable cause to believe that there is then an operating methamphetamine lab in the house. I am hesitant, however, to adopt what amounts to a per se rule; I do not know whether that rule confirms a universal truth. The record in this case might be completely accurate but, again, it might not be. Accordingly, I would limit our holding to the record in this case and leave it to the legislature to determine, after hearings, the truth of the matter. If it finds that operating methamphetamine labs are as hazardous as this record indicates, posing a threat of immediate danger to life or property sufficient to justify a warrantless entry by the police, it may pass a law to deal with that problem.

The question remains whether the officers had probable cause to believe that a methamphetamine lab was in operation in the house when they entered. As the majority notes, the trial judge did not find that the officers had probable cause to believe that and remands the case to permit the trial court to make a finding on that question. Because I do not believe that the record supports a finding of probable cause, I would affirm, rather than remand. The record shows that some neighbors observed a van back into the house’s driveway and then saw two men going back and forth between the open rear of the van to the opened door of the house. They concluded that there was possibly a burglary in progress and called the police.

When Officers Harris and Haag arrived, Harris walked around the van, smelled a strong odor of methamphetamine coming from it and saw through the van window a metal steamer trunk and white plastic bucket-type *337 containers, which he recognized as being similar to those used to store chemicals and glassware for use in the manufacture of methamphetamine. After Harris opened the van doors, found several plastic bags and smelled the odor of methamphetamine, he had probable cause to arrest Chapman and Leyva for possession of a controlled substance. The exhaustion of fumes from the house smelling strongly of methamphetamine gave rise to no more than a strong suspicion that activity involving methamphetamine had been or was being engaged in within the house. However, a suspicion, no matter how well founded, does not give rise to probable cause. The most that the officers testified to was that there was “a possibility” that there was a lab operating in the house and that they thought they should go in and “find out” if there was one.

In short, the evidence supports a finding of probable cause to believe that something to do with methamphetamine was going on in the house. The officers could have obtained a search warrant but made no effort to do so during the 45 minutes between their arrival at the scene and their entry. However, the presence of methamphetamine or paraphernalia used to manufacture it in a house is not, as such, the hazard addressed by this record to support a finding of exigent circumstances justifying the warrantless search.

By remanding, the majority presumably agrees that the officers’ smelling of flames being exhausted from the house is sufficient to support probable cause to believe that there was a lab in operation inside. I do not believe that that is sufficient to support probable cause to search for an operating lab, which is the crux of the argument, to support the existence of exigent circumstances.