Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Reversed and remanded with directions. Super. Ct. No. 06WF3778
Jeffrey H. Friedman for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
IKOLA, J.
Following the court’s denial of her Penal Code section 995 motion to set aside the information, defendant Mia Gianna Casasanta pleaded guilty to possession of marijuana for sale (Health & Saf. Code, § 11359) and transportation of marijuana (Health & Saf. Code, § 11360). The court suspended imposition of sentence and placed defendant on three years formal probation, including 100 days in county jail. Defendant, however, did not waive the right to appeal in her plea agreement. She claims the court erred when it denied her motion to suppress evidence; defendant contends all of the essential evidence against her was acquired as a result of an illegal detention and subsequent illegal search of her property by law enforcement officers. (See § 1538.5, subd. (m) [“A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty”].) We reverse. The extended detention of defendant, which ultimately led to a search of her property and an interrogation in which defendant admitted her guilt, was unreasonable under the Fourth Amendment to the United States Constitution.
All statutory references are to the Penal Code, unless otherwise referenced.
FACTS
Probation Search of Third Party
At approximately 8:00 a.m. on December 14, 2006, Police Officer Michael Henderson responded to a call from the security office of the Leisure World retirement community in Seal Beach, California. Leisure World security provided Officer Henderson with a wallet found on community property; the wallet contained a driver’s license in the name of Rick Rosendaal and a business card identifying Brian Grossman, a probation officer in Humboldt County. Leisure World security informed Officer Henderson that an individual with the last name Rosendaal owned a residence at Leisure World, and that the property owner previously had notified security that her grandson Rick was “staying with her” for an unspecified period of time.
Officer Henderson phoned Grossman (the probation officer). Grossman confirmed Rick Rosendaal was on active probation and Grossman was supervising Rosendaal. Grossman asked Officer Henderson to contact Rosendaal and to conduct a probation search — Grossman explained Rosendaal was subject to search and seizure conditions as terms of his probation.
The People failed to introduce the actual written probation condition at the preliminary hearing, but the court allowed the People to correct their error pursuant to section 995a, subdivision (b)(1). The probation condition states: “submit your person and property under your control to search or seizure at any time of the day or night by any probation officer or other peace officer with or without a warrant or probable cause.”
At approximately 9:00 a.m., Officer Henderson and his partner, Officer McDonald, arrived at the residential unit owned by Rosendaal’s grandmother. Officer Henderson then made “contact” with Rosendaal (presumably by knocking on the door, but the record does not specify how the “contact” was made). After making contact with Rosendaal, Officer Henderson indicated he had a wallet with Rosendaal’s identification card, explained he had contacted Grossman, and announced he was going to conduct a probation search. Rosendaal replied, “okay.” The officers then entered the residence. The officers did not have a search warrant for the premises or an arrest warrant for any of the individuals inside the premises. Officer Henderson agreed his “only authority for entering and searching was [his] understanding that [Rosendaal]... was [subject to] search and seizure as a condition of probation.”
Officer Henderson did not “ask if it was okay with [Rosendaal] for [Officer Henderson] to search the place.” Instead, Officer Henderson represented he had authority to search the residence and Rosendaal responded “okay.”
Upon entry, the officers discovered two females inside the residence, defendant and Stacy Louise Bryant. Defendant, Rosendaal, and Bryant were instructed to sit in the kitchen under the supervision of Officer McDonald while Officer Henderson commenced his search of the premises. Officer Henderson ultimately discovered defendant and Bryant had been overnight guests at the residence, but was unsure precisely when he was aware of this fact. Neither defendant nor Bryant was free to leave the premises at any point during the probation search, and they remained in the kitchen area until approximately 11:30 a.m.
Officer Henderson began his search in the southeast bedroom where Rosendaal had been sleeping. He noticed the room was “messy” and “in disarray,” with a mixture of male and female clothing in open suitcases and on the floor. During his initial search, Officer Henderson found inside a canister on the top of a dresser two bags containing 26.15 grams of marijuana, as well as $5,000 in cash in a black nylon backpack. Officer Henderson exited the bedroom, escorted Rosendaal out of the kitchen, read Rosendaal his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and questioned Rosendaal about the marijuana and cash. Rosendaal admitted the marijuana and cash belonged to him. Leaving Rosendaal in the living room, and with defendant and Bryant still in the kitchen, Officer Henderson returned to the bedroom to continue his search. Officer McDonald continued to watch all three individuals.
During his “second” search, Officer Henderson found a box near the top of the bedroom closet containing more than 1,300 grams of marijuana. Officer Henderson returned to the living room and handcuffed Rosendaal, who denied knowledge of the large quantity of marijuana Officer Henderson had discovered in his “second” search. Officer Henderson returned to the bedroom a third time and searched, but did not find any additional items of interest. Rosendaal’s arrest occurred at approximately 11:30 a.m. Officer Henderson agreed with the statement that he “searched [the bedroom] three times, [he] found marijuana in two different places, a bunch of cash in a third place[,] [and he] attributed all that contraband to Mr. Rosendaal.” Officer Henderson testified he did not “have any basis to hold the girls” at that time.
Additional Search Leading to Arrest of Defendant
Officer Henderson instructed Officer McDonald to “let the girls go.” Officer McDonald told defendant and Bryant they could go and they packed belongings and began carrying suitcases to a vehicle. At this point, Officer McDonald informed Officer Henderson that defendant and Bryant “had shown interest” — indeed, an “unusual amount of interest” — in some wrapped Christmas gifts in the southeast bedroom. Officer McDonald did not elaborate on her observation to Officer Henderson. Further, Officer McDonald did not testify at the preliminary hearing (Officer Henderson was the only witness who testified). Thus, the record is silent as to what acts, statements, or behaviors amounted to an “unusual amount of interest” in the mind of Officer McDonald.
Officer Henderson returned to the southeast bedroom to inspect the wrapped Christmas gifts. He then noticed some wrapping paper on the floor of the bedroom. The wrapping paper was the same style used to wrap the gifts. Next, Officer McDonald picked up the cardboard box in which he had found the large quantity of marijuana and discovered the loose wrapping paper he had found on the floor “fit” the box; “[i]t was clear to [Officer Henderson] that... the [wrapping] paper... had been removed from [the] box [with marijuana in it].”
Officer Henderson opened one of the wrapped boxes and discovered it contained marijuana. There were “To and From” tags on each of the packages; one stated “To Uncle Sammy” and “From Mia,” while the other tag stated “To Melody” and “From Mia.” Officer Henderson knew at the time he opened the package that “Mia” was defendant Mia Gianna Casasanta. But Officer Henderson did not recall at the preliminary hearing whether he saw the tags before or after he opened one of the wrapped packages. Officer Henderson did not ask defendant, Bryant, or Rosendaal who owned the wrapped packages prior to opening one of the packages. After discovering marijuana inside the wrapped package and defendant’s name on the package, Officer Henderson formed the opinion defendant was in possession of the marijuana found during his search.
The officers directed defendant and Bryant to sit on a low block wall outside the residence. They were questioned separately. After initially denying involvement, defendant eventually admitted she had transported boxes of marijuana in her car from northern to southern California. Defendant and Bryant were arrested at 1:39 p.m. Officer Henderson agreed defendant and Bryant had been “detained” the entire time he and Officer McDonald were at the residence.
Procedural Background
The People filed a felony complaint against defendant, Rosendaal, and Bryant, charging them with possession of marijuana for sale (Health & Saf. Code, § 11359) and transportation of marijuana (Health & Saf. Code, § 11360). Defendant pleaded not guilty. At the preliminary hearing, defendant moved pursuant to section 1538.5 to suppress all evidence against her. The court denied the motion.
The court found sufficient evidence presented at the preliminary hearing to hold over defendant and Rosendaal for trial, but discharged Bryant for lack of evidence. The People filed an information against Rosendaal and defendant, accusing them of possession of marijuana for sale (Health & Saf. Code, § 11359) and transportation of marijuana (Health & Saf. Code, § 11360).
Defendant moved pursuant to section 995 to set aside the information, renewing her section 1538.5 motion and arguing all of the essential evidence against her was obtained by way of unlawful searches and seizures. The court rejected defendant’s motion.
Following the court’s adverse ruling, defendant pleaded guilty. She appeals the court’s denial of her motions to suppress all evidence obtained by the police against defendant the day of their probation search of Rosendaal.
DISCUSSION
We defer to the trial court’s express or implied factual findings if supported by substantial evidence, but independently apply constitutional principles to the court’s factual findings in determining the legality of the search under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).) The prosecution bears the burden of showing that the detention and search of defendant were reasonable. (See People v. Pearl (2009) 172 Cal.App.4th 1280, 1288.)
Detention of Defendant
Defendant first claims reversal is required because all of the evidence against her was acquired as a result of a detention that was unlawful ab initio or, even if lawful at its inception, unduly prolonged. In assessing the constitutionality of defendant’s detention, “we balance the extent of the intrusion against the government interests justifying it, looking in the final and dispositive portion of the analysis to the individualized and objective facts that made those interests applicable in the circumstances of the particular detention.” (Glaser, supra, 11 Cal.4th at p. 365.)
Generally, officers may briefly detain persons present at the location of a search or arrest to ascertain the identity of the individuals and their connection to the premises, and to protect the safety of officers and other persons present. (See, e.g., Michigan v. Summers (1981) 452 U.S. 692, 693, 702-705 [in executing search warrant of house for narcotics, police may detain resident who was exiting the house upon their arrival]; Glaser, supra, 11 Cal.4th at pp. 360-361, 365 [in executing search warrant of house for narcotics, police may detain individual who had arrived by pickup truck simultaneously with the police]; People v. Hannah (1996) 51 Cal.App.4th 1335, 1339-1344 (Hannah) [in attempting to enforce arrest warrant against juvenile at residence, police may require adult individuals present in residence to remain seated].)
The initial, brief detention of individuals may be extended in certain circumstances. “If the person is determined to be an occupant of the home to be searched, he or she may be detained... for the duration of the search. [Citation.] If the person is determined not to be an occupant, further detention is proper only if justified by other specific, articulable facts connecting him or her to the criminal activity suspected to be occurring on the premises or establishing a danger to the officers if the person is released. (Glaser, supra, 11 Cal.4th at p. 374.)
The same rule holds true in the case of a probation search. (See People v. Matelski (2000) 82 Cal.App.4th 837 (Matelski).) In Matelski, officers arrived at a residence to conduct a probation search of probationer, who had recently failed a drug test. (Id. at p. 841.) Two individuals (not including probationer) were walking out of probationer’s front door when the officers arrived. (Ibid.) The officers requested the individuals to “‘[c]ome over here,’” explained they were performing a probation search and that probationer was precluded from associating with convicted felons, asked the individuals for their names and dates of birth, and called in this information to the police dispatcher. (Id. at pp. 841-842.) It was determined both individuals had outstanding arrest warrants; they were arrested and searched, whereupon it was determined one of them possessed methamphetamine and marijuana pipes. (Id. at p. 842.)
The Matelski trial court granted a suppression motion, but the appellate court reversed in a split decision. (Matelski, supra, 82 Cal.App.4th at pp. 842-843, 853.) The majority opinion in Matelski reasoned that the detention was brief, there was no particular embarrassment or stigma attached to the detention, there was a need to determine the connection of the individuals to the probationer in performing the probation search, and there was a related need to ensure officer safety at the site of the search. (Id. at pp. 849-850.) The court “emphasize[d] that the officers were not acting randomly, but rather had specific articulable reasons for entering the home and detaining defendants.” (Id. at p. 853.) “[T]his was not a suspicionless intrusion.” (Id. at p. 851.) “[T]he officers were at the residence to enforce probation terms against [a probationer] because he had flunked a drug test. They wanted to conduct a probation search in order to determine if [the probationer] was possessing drugs or otherwise violating his probation terms.” (Id. at p. 852.)
Here, the only basis for the officers’ entry into the home was to conduct a consensual probation search. There was no evidence that Rosendaal was suspected of violating his probation, that he was involved in criminal activity, or that contraband was suspected to be in the home, much less that defendant would be in the residence or that defendant was engaged in any criminal activity. As Officer Henderson acknowledged in his testimony, his “only authority for entering and searching was [his] understanding that [Rosendaal]... was [subject to] search and seizure as a condition of probation.” And because no search warrant was required under these circumstances, “there was no independent judicial finding of probable cause for a search or arrest warrant.” (Matelski, supra, 82 Cal.App.4th 837, 851.) Thus, upon entry into the home, the officers did not have defendant’s consent to detain her, nor did they have any articulable reason to suspect defendant of criminal activity.
The officers were nevertheless justified in asking defendant to remain seated and confined in the kitchen area for a brief period of time while the officers determined who she was and her relationship with the premises and with Rosendaal. Officer Henderson could not remember precisely when he became aware that defendant had been an overnight guest at the residence. But presumably, that determination would have been made upon the officers’ initial entry into the home. And if defendant’s relationship to the premises and Rosendaal was not determined at the outset, the officers had no authority to defer that inquiry while continuing to detain defendant during their search. Upon the initial discovery of marijuana and cash, the officers would have sufficient reason to further detain defendant to ascertain her relationship to the contraband. But the record is silent as to precisely when the officers first made this discovery. Was it five minutes? 10 minutes? 30 minutes? One hour? We do not know. Thus there is insufficient evidence in the record to justify defendant’s detention beyond that period of time which was necessary to determine her relationship to the premises and to Rosendaal, much less for more than two hours while the officers conducted their probation search of Rosendaal. And there is no evidence supporting a conclusion that the officers detained defendant due to safety concerns (prior to the discovery of the marijuana). In sum, the prosecution did not meet its burden of introducing sufficient evidence to support a conclusion that the length of defendant’s detention was reasonable.
Moreover, there is no evidence in the record supporting the conclusion that the physical evidence against defendant would have been discovered and linked to her in the absence of her lengthy detention. Officer Henderson told Officer McDonald to “let the girls go” only after he completed his search. It is speculation to assume that Officer Henderson’s search would have uncovered the packages in which defendant expressed an “unusual amount of interest” absent the lengthy detention of defendant. And, of course, without the discovery of the additional boxes of marijuana with her name on the boxes, there was no basis for the interrogation of defendant which followed the opening of those packages.
Evidence Establishing Rosendaal’s Probation Waiver
Defendant also claims the court erred when it allowed the People, pursuant to section 995a, subdivision (b), to cure an evidentiary deficiency in its case against defendant at the preliminary hearing — namely, the absence of the written terms of Rosendaal’s probation order defining the scope of the authorized search of Rosendaal and his property. (See § 995a, subd. (b)(1) [authorizing courts to order further proceedings without setting aside the information to correct “minor errors of omission, ambiguity, or technical defect”].) Defendant claims she would have been successful in her section 995 motion had the court not allowed the People to correct their error because there would have been no basis to establish the boundaries of the officers’ authority to search Rosendaal.
The People respond by claiming the issue is not properly before this court on appeal, and we agree. Section 1237.5 provides, “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty... except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of court.” (See also Cal. Rules of Court, rule 8.304(b).) Defendant pleaded guilty. And there is no evidence in the record suggesting defendant complied with the requirements of section 1237.5. Thus, defendant may not appeal the court’s decision to allow the People to correct their failure to introduce Rosendaal’s probation terms at the preliminary hearing.
Defendant previously raised this issue by way of petition for writ of mandate, but this court summarily denied defendant’s petition.
The first two issues raised in defendant’s appeal were based on the court’s refusal to suppress evidence against defendant under section 1538.5. As already noted above, section 1538.5, subdivision (m), explicitly authorizes appeals of “the validity of a search or seizure” despite a guilty plea. Section 1538.5 has no applicability to the court’s decision to allow the People to reopen the preliminary hearing to introduce court records establishing Rosendaal’s probation terms. Moreover, there is no statutory exception to section 1237.5 preserving the right to appeal court orders under section 995a. We dismiss this portion of defendant’s appeal without consideration of the merits.
DISPOSITION
The judgment is reversed and the matter remanded to the superior court with directions to vacate its order denying defendant’s motion to suppress evidence and to enter a new order granting her motion.
WE CONCUR: MOORE, ACTING P. J., ARONSON, J.