Opinion
G044061 Super. Ct. No. 08CF2714
06-23-2011
THE PEOPLE, Plaintiff and Respondent, v. ANDREW RAYMOND AGUIRRE AND YULLIANA BELTRAN, Defendants and Appellants.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant Andrew Raymond Aguirre. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant Yulliana Beltran. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Stephanie H. Chow and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule
OPINION
Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant Andrew Raymond Aguirre.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant Yulliana Beltran.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Stephanie H. Chow and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendants Andrew Raymond Aguirre and Yulliana Beltran pleaded guilty to various offenses after the trial court denied their motion to suppress evidence. (Pen. Code, § 1538.5; all statutory references are to the Penal Code unless noted). They contend Santa Ana police officers illegally entered and searched their home without a search warrant or other legal justification in violation of the Fourth Amendment to the United States Constitution. For the reasons expressed below, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Around 4:00 p.m. on the afternoon of September 17, 2008, Santa Ana Police Officer John Holcomb was assigned to a gang detail and working in an undercover capacity. He wore plainclothes and drove an unmarked SUV. He and several officers were looking for a juvenile probationer named U.S., reportedly living at 2020 Civic Center Drive. U.S. was a 14- or 15-year-old male Hispanic affiliated with the 6th Street gang.
Holcomb drove into the driveway of the Civic Center apartment complex and observed five young men, all of whom fit U.S.s description congregating near a burgundy Toyota in front of 2016 West Civic Center. The 2016 and 2020 apartment buildings adjoin each other and are not clearly numbered. The group looked in Holcombs direction, and two of the men ran into an apartment in the 2016 building. Holcomb decided to leave the lot for his own safety.
A short time after Holcomb parked on the street, the Toyota, containing three or four people, sped out of the driveway, crossed a traffic lane without signaling, and ran a stop sign. Holcomb followed, relayed a description of the traffic violations to his fellow officers. The Toyota pulled into the driveway of a residence about a mile away at 1019 North English Street. Three or four males stood in the gated front yard.
Officer Michael Claborn and his partner, Corporal Herter, trailed Holcomb in a marked unit, along with another marked unit driven by Detective Andy Alvarez. According to Claborn, the English Street residence was in the heart of territory claimed by the F-Troop gang. Claborn recalled information he learned four or five years earlier that "an F-Troop gang member . . . resided at that particular location." F-Troop and Sixth Street gangs are rivals.
Claborn intended to stop the Toyota for committing the earlier traffic violations, but by the time the officers arrived at the English Street residence, three or four men were walking from the parked Toyota toward the front door. They looked and dressed like Hispanic gang members, with shaved heads and baggy clothing. Detective Alvarez, with his gun out, identified himself and ordered the men to stop.
One of the men walking toward the door, later identified as Mario Pantoja, ignored the order. He turned away from the officers and walked or ran toward the door in an "abnormal manner," holding his waistband area. He held his right arm against the front part of his body rather than letting his arm swing free, and his left shoulder was "slightly hunched forward." Claborn believed he was concealing a weapon. Claborn yelled "stop, police," and ran after Pantoja. Pantoja took a few steps, looked over his shoulder at Claborn, and began moving faster. Pantoja opened the door, darted inside, and closed the door behind him.
A foot away from Pantoja when he closed the door, Claborn heard the deadbolt engage as he reached for the handle. He attempted to open the door, shook the door handle, and yelled "open the door, it is the police," but got no response. He beat on the door and yelled "open the door; police," but still received no reply. He then kicked the door twice, breaking it open. He drew his weapon and held it pointing down at his side, and then stepped to the right, remaining outside and to the side of the entryway for his own safety. He placed his left foot into the threshold to prevent the door from closing.
Claborn saw silhouettes of several people inside the house and directed them to exit. Apparently, Pantoja emerged first, followed by others, including Aguirre, Beltran, and her two young children. Claborn kept his gun out, but did not point it at them.
Claborn made a second announcement for others to exit the house and asked Beltran if anyone remained in the residence. She said no. He asked if the officers could go inside to check, and she responded they could.
As Claborn swept through the residence, an elderly woman, later identified as Connie Aguirre, emerged from the hallway. She identified herself as the owner. Claborn escorted her outside. Claborn requested permission to search for anyone else still inside the house, and she agreed.
Claborn and another officer conducted the search. Entering the southwest bedroom, they observed two loaded handgun magazines on top of a dresser.
According to Alvarez, Claborn entered the residence and apprehended Pantoja, and several officers participated in a protective sweep of the house that resulted in the detention of the other occupants. Claborn told Alvarez about the loaded pistol magazines, and he and Claborn reentered the house to note their location. The officers determined Aguirre and Beltran occupied the southwest bedroom. Connie Aguirre refused to provide written consent to search. Based in part on evidence obtained during the entry and sweep, the officers obtained a search warrant. They served the warrant and discovered drugs and an assault-type weapon inside the residence.The officers later determined Pantoja had not been in the Toyota.
Aguirres name had "popped up" in connection with an unrelated investigation, and Alvarez knew he had a felony record. The officers did not know this was Aguirres home when they first arrived.
Pantoja testified he did not match U.S.s description at the time of the incident because he was older and heavier. Pantoja was standing in the front yard of Aguirres residence when the Toyota screeched into the driveway. He recognized some of the young men in the car. Startled by the arrival of the police and afraid the men in the Toyota were gang members, he walked quickly toward the house hoping to alert Aguirre and Beltran. He denied hearing the police yell "stop," and he did not see the officers get out of their cars, although he did hear footsteps and glanced over to see Claborns face. Claborn wore some sort of a vest but Pantoja did not know he was a police officer. Pantoja denied using the deadbolt to lock the door. He had walked about five or six feet into the house when the door flew open and Claborn grabbed him by the wrist and pulled him outside, threw him on the ground, and handcuffed him. He did not recall Claborn knocking.
Beltran testified she was in the kitchen with her one-year-old daughter making dinner when Pantoja rushed in to announce that police officers were outside. Claborn kicked in the door, pointed the gun in Beltrans face, and ordered her to move as he escorted Aguirres nephew, Raymond Aguirre, outside the residence. Claborn entered again and removed Pantoja. Beltran attempted to reenter the kitchen because she had oil burning on the stove, but Claborn ordered her to "get the fuck out." She complied and left the house with her children; Aguirre followed. Claborn escorted Connie Aguirre out of the house and announced "clear" to the officers. He then reentered the residence, accompanied by other officers, without asking permission to look for other people.
Raymond Aguirre testified Claborn kicked on the door until it "popped open." The officer came inside about a foot or two with his gun drawn and ordered everyone to get out of the house. Raymond, about three feet from the door, left the house first, and was ordered to the ground and handcuffed. He was near Beltran during the incident and did not hear her consent to a search of the home. The officers went "back and forth into the house" numerous times.
The trial court denied the suppression motion following a hearing in May 2010. The court found Claborn had a reasonable basis to detain Pantoja, and had the right to go into the house to apprehend him when Pantoja failed to stop outside the residence. The court found "[a]s the people left the house, Claborn asked if he could enter for the purposes of seeing if other persons were in the house. [¶] The court finds that he was given permission to do so. He entered looking for other persons, located another person in the house and made observations of the bullets and the magazines."
Aguirre subsequently pleaded guilty to possession of an assault weapon (§ 12280, subd. (b)), possession of a controlled substance while armed (Health & Saf. Code, § 11370.1, subd. (a)), and active participation in a criminal street gang (§ 186.22, subd. (a)). He also admitted he previously had suffered a prior serious felony conviction. (§ 667, subd. (a)(1).) The court imposed a prison sentence of seven years and eight months. Beltran pleaded guilty to misdemeanor child endangerment (§ 273a, subd. (a)) after the court reduced the offense pursuant to section 17, subdivision (b). Beltran received a 170-day jail term.
II
Discussion
The Trial Court Did Not Err in Denying Defendants Motion to Suppress Evidence
Aguirre and Beltran raise the same issue and join in applicable arguments raised by the other. (Cal. Rules of Court, rule 8.200(a)(5).)
Defendants contend Claborns forced entry without a warrant violated their Fourth Amendment rights and therefore the trial court erred in failing to suppress the evidence the officers discovered upon entering the residence. The Attorney General responds that exigent circumstances allowed Claborn to lawfully enter the residence in pursuit of a suspect attempting to avoid a lawful detention, and the officers obtained the owners consent for subsequent entries into the dwelling. We agree with the Attorney General.
The standard of appellate review on a suppression motion is well established. We defer to the trial courts express or implied factual findings if supported by substantial evidence, but independently apply constitutional principles to the trial courts factual findings in determining the legality of the search under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
"[T]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." (Payton v. New York (1980) 445 U.S. 573, 585.) Thus, "searches and seizures inside a home without a warrant are presumptively unreasonable." (Id. at p. 586.) "Nevertheless, because the ultimate touchstone of the Fourth Amendment is reasonableness, the warrant requirement is subject to certain exceptions." (Brigham City v. Stuart (2006) 547 U.S. 398, 403; Kentucky v. King (2011) ___ U.S.___ .) The Supreme Court "has identified several exigencies that may justify a warrantless search of a home. [Citation.] Under the emergency aid exception . . . officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. [Citations.] Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect. [Citation.] And . . . the need to prevent the imminent destruction of evidence has long been recognized as a sufficient justification for a warrantless search. [Citations.]" (King, supra, at p. 1856.)
Here, the Attorney General invokes the "hot pursuit" exception. As explained in People v. Lloyd (1989) 216 Cal.App.3d 1425 (Lloyd), "One type of exigent circumstances has been recognized where an arrest or detention based on probable cause is begun in a public place, but the suspect retreats into a private place in an attempt to thwart the arrest." (Id. at p. 1428) In United States v. Santana (1976) 427 U.S. 38, 42-43, the Supreme Court held that exigent circumstances exist when a lawful detention or arrest is initiated in a public place, but the suspect flees into a residence to avoid apprehension. The court held that officers who make a warrantless entry into a residence in "hot pursuit" of a fleeing suspect do not violate the Fourth Amendment. (Id. at p. 43)
In Lloyd, supra, 216 Cal.App.3d 1425, the suspect committed several traffic violations and had just left and locked his car when a pursuing uniformed officer requested his drivers license and registration. The suspect refused to comply with the identification request, quickly walked away from the officer, and briefly entered into a neighbors house and then retreated into his own residence. The court observed the officer lawfully attempted to detain the suspect for traffic violations. The suspect had no right to resist the lawful detention, and his "conduct in quickly walking away from the officer rather than complying with the demand for identification provided the officer with probable cause to arrest him. [Citation.] Under these circumstances, the officers hot pursuit into the house to prevent the suspect from frustrating the arrest which had been set in motion in a public place constitutes a proper exception to the warrant requirement." (Id. at p. 1429; see also People v. Abes (1985) 174 Cal.App.3d 796-806-807.)
Lloyd also concluded the minor offenses justifying the detention did not preclude a finding of exigent circumstances. It noted cases limiting the hot pursuit exception to felonies, or grave and serious crimes, did not involve pursuit into a home after the initiation of a detention or arrest in a public place. "Where the pursuit into the home was based on an arrest set in motion in a public place, the fact that the offenses justifying the initial detention or arrest were misdemeanors is of no significance in determining the validity of the entry without a warrant. [Citations.]" (Lloyd, supra, 216 Cal.App.3d at p. 1430.) Following the rationale in Lloyd, the appellate court in In re Lavoyne M. (1990) 221 Cal.App.3d 154 held that pursuing officers could enter a residence to seize a fleeing suspect who had failed to stop at two stop signs. (Id. at pp. 158-159.)
Here, Holcomb observed the Toyotas driver commit several traffic violations. Claborn had the right to detain individuals the officer reasonably believed were in the car to ascertain who was driving. Pantoja, in a group walking from the area of the car toward the house, fled rather than submit to a lawful detention. Also, Claborns description of Pantojas unusual gait coupled with the flight reasonably suggested Pantoja might have a weapon, and entry was necessary to protect the occupants from imminent injury. Claborn had the right to pursue Pantoja into the house when he failed to submit to a lawful detention outside the home.
Aguirre argues Pantoja was "not suspected of committing a crime" and was simply choosing to avoid a "consensual encounter." He distinguishes Lloyd and the other cases cited above, arguing Claborn lacked probable cause to arrest Pantoja, or a reasonable suspicion that Pantoja had committed a crime or that he fit the description of the juvenile.
As explained above, Aguirres premise is flawed. This was not a consensual encounter, so Pantoja had no right to ignore Claborns directive to stop. The failure ultimately to charge Pantoja with a crime for resisting (see § 148) is of no moment.
Aguirre also asserts that any exigency allowing a warrantless search ended when Claborn pulled Pantoja out of the house. Similarly, Beltran argues she was "forced from her home and . . . detained by officers who had their guns drawn," and the request to search for additional persons came "after [Pantoja] was already detained outside of the home. Thus, not only was Beltrans alleged agreement to a protective sweep a direct result of Officer Claborns entry and anything but consensual, the sweep itself was totally unnecessary." We find this contention unpersuasive.
Here, Claborn testified that after he kicked in the door, he stepped aside and placed his foot in the threshold to prevent the door from closing. He then directed everyone in the house to exit. He issued a second demand, presumably after everyone he initially observed had left the residence. Turning to Beltran, he asked if anyone remained in the residence, and if the officers could reenter to check. Claborn testified Beltran gave her consent.
Voluntary consent obtained from a person authorized to give it is an exception to the warrant requirement. (Illinois v. Rodriguez (1990) 497 U.S. 177, 181; Mincey v. Arizona (1978) 437 U.S. 385, 390; United States v. Matlock (1974) 415 U.S. 164, 169; People v. Robles (2000) 23 Cal.4th 789, 795.) "[C]onsent must be unequivocal, specific, and freely and intelligently given" and is invalid if given "in response to any express or implied assertion of authority." (People v. Bailey (1985) 176 Cal.App.3d 402, 404-405.) The voluntariness of consent is a question of fact, to be determined in light of all the circumstances. (People v. James (1977) 19 Cal.3d 99, 106.) As noted above, we review the record in the light most favorable to the trial courts ruling and defer to its express or implied findings of historical fact, including a finding of voluntary consent, if the findings are supported by substantial evidence. (People v. Aguilar (1996) 48 Cal.App.4th 632, 639; People v. Miranda (1993) 17 Cal.App.4th 917, 922.)
To protect himself and others, Claborn acted reasonably when he directed the silhouetted figures, including Beltran, to exit the residence. Although Claborn legally could have entered the residence, doing so would have exposed him and others, including Beltran, to the risk of a violent confrontation. Because Claborn acted reasonably, Beltran was not unreasonably detained and therefore her consent was not involuntary as the product of an illegal seizure.
Viewed in the light most favorable to the trial courts ruling, the record also supports the finding Beltran actually consented to a search for additional persons. Additionally, the courts implicit finding Beltrans consent was not an implied submission to authority is supported by the record. Notwithstanding Claborns act of kicking in the door, Claborn did not point the weapon at her, and she was not handcuffed at the time she consented. The trial court found Claborn asked for consent. We are bound by this factual finding, which is supported by substantial evidence. Claborns request for permission to search suggests he did in fact respect Beltrans Fourth Amendment rights, and negates Beltrans argument "a sweep of the entire house was inevitable." Claborns description of the circumstances under which he obtained Beltrans consent supports the trial courts conclusion Beltran voluntarily agreed to the search. Neither defendant argues the search exceeded the scope of consent, or challenges the officers testimony they observed loaded firearm magazines in plain view.
The prosecution did not rely on the "protective sweep" exception articulated in Maryland v. Buie (1990) 494 U.S. 325 to justify the search for additional persons.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J.