Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. FCR552744
Lambden, J.
Defendant pleaded no contest to unlawful cultivation of marijuana (Health & Saf. Code, § 11358) after the trial court denied his motion to suppress (Pen. Code, § 1538.5). On appeal, defendant contends that the lower court erred in denying his motion to suppress. We agree, and reverse.
BACKGROUND
On October 14, 2009, the Sonoma County District Attorney filed an information charging defendant and five other family members with unlawful cultivation of marijuana (Health & Saf. Code, § 11358), possession of marijuana for sale (Health & Saf. Code, § 11359), and possession of concentrated cannabis (Health & Saf. Code, § 1357, subd. (a)). Defendant pleaded not guilty.
On February 22, 2010, codefendant Casey Doolaege (Casey) filed a motion pursuant to Penal Code section 1538.5 to suppress, quash, or traverse the search warrant. Casey argued that deputies illegally entered the property. Thus, the search warrant that eventually was issued was based on evidence observed and discovered by two illegal entries onto the property. Defendant joined in this motion on April 1, 2010.
On June 21, 2010, the trial court held a hearing on the motion to suppress the search warrant. Deputy John Misita testified that he along with Deputy David Tait attempted to serve a misdemeanor arrest warrant about 3:35 p.m., December 11, 2008, at the address of 2870 Llano Road in Santa Rosa. The arrest warrant was for a person with the surname of Morland, and indicated that he lived at 2870 Llano Road. Misita drove down the gravel road, but was unable to locate the address on the warrant even after he looked at mailboxes on the roadside and used the Global Positioning System (GPS) in his car and another computer system. He searched for the address for about five minutes, but could not find it.
The nearest address to the one specified on the warrant that Misita could locate was 2780 Llano Road. Misita testified that he believed that the numbers on the warrant had been transposed. Tait arrived to assist Misita, and he testified that it was not uncommon for there to be a typographical error. The house at 2780 Llano Road was completely fenced, and Misita and Tait opened the gate that was secured by a cord. It was a ranch-style gate, about five feet high, and opened wide enough to allow cattle to pass through. They entered the yard and went to the front door of the residence. No one responded to their knock on the door; they looked inside a parked recreational vehicle, but no one was inside.
The deputies noticed an interior fence with a gate, and they entered this portion of the yard through the gate. They spotted a large barn on the property with an extension cord and they believed that the barn “was a make-shift apartment.” They went to the barn, but they received no response. They noted that the extension cord went into the barn and there was a humming sound, which sounded like fans inside the barn. Misita walked around the barn and spotted exhaust fans coming out of the barn. He testified that, at this point, he believed marijuana might be growing inside the barn.
Misita and Tait left the property and looked for 2870 Llano Road in their own separate vehicles. They spent another five minutes looking for the property, but were unable to locate this address.
The deputies returned to 2780 Llano Road, entered the gate and yard, and again knocked on the front door. This time Peggy Doolaege (Peggy) answered the door. The deputies asked her if the person named on the warrant lived there; she responded that she did not know that person. She confirmed that she lived in this house with her family. The deputies asked if marijuana was growing in the barn and she answered that they had medical marijuana cards. She eventually admitted that the marijuana growing in the barn belonged to her family and her. She said that no one else was at the property, but the deputies saw a man and a woman next to a truck on the property. The deputies approached the two people and the male, who was defendant, smelled of marijuana. The other family member had marijuana clippings on the front section of her clothing.
The deputies secured the premises, located three other people, and contacted the narcotics division. The deputies described their observations and conversation with Peggy to a narcotics detective. The narcotics officer used this information to obtain a search warrant for 2780 Llano Road. Pursuant to the search warrant, the detectives obtained incriminating statements from several codefendants and recovered marijuana and other paraphernalia used to grow marijuana.
Officers were later able to locate 2870 Llano Road, the address listed on the arrest warrant.
Chris Reynolds, a licensed private investigator, testified that he found 2870 Llano Road on his first attempt. He opined that it was not difficult to locate. He stated that he noticed a mailbox at the end of a driveway that had a number missing from the front of the box; it said “2 70.” The mailboxes immediately to the left of the box said “2880” and “2890.” He drove down the well-marked driveway and reached a home on the southern portion of the roadway with “a well-marked sign that said ‘2870.’ ” He stated that it “took me less than one minute to see the mailboxes, drive down the driveway and locate the property.”
Reynolds declared that “a large wooden gate that completely covered the driveway and residence” protected defendant’s home at 2780 from the public. He stated that the fence line was “also very high” and did “not allow the public a view of a majority of the property.” The gate was well constructed, according to Reynolds, and had a large metal bar to fasten it to a steel post and was secured by a rubberized cord. Reynolds noted that the property had interior fencing leading to a trailer, barns, and other buildings used for daily living. The property included a swimming pool, garden, utility sheds, barn, water storage tank, and other items. Photographs of the property at 2780 were submitted in support of his declaration.
At the end of the hearing, the trial court stated that there was “absolutely convincing evidence” that the address was on the fence post of 2870 Llano Road, but the officers simply did not see it. The court observed that the deputies went to the residence that they believed was the target of the arrest warrant. The court explained: “Deputy Misita was acting in good faith, did exactly what he said he was trying to do, serve an arrest warrant, looked for the residence, could not find it, another deputy joined him at the property where he thought it was a transposed number, it didn’t come up on their data systems.... They walked up to a residence that they thought was the target of an arrest warrant. So they had justification to be where they were.” The court added, “As any neighbor, fireman, postal person delivering a parcel, they went through a gate, walked up to a house. So it is an expectation of privacy that’s really nonexistent. There is no no trespassing signs.”
The court also considered the entry to the back of the house, and the court elaborated: “So the bottom line to this is they enter the property, took a route that anyone could take where there is no expectation, and the property occupant admitted to the unlawful growing of marijuana. So we have that issue. The other issue is, well, is there more expectation of privacy farther back onto the property. And the first entry they walked to that porch and then walked further, walked past another gate into––certainly within the curtilage of a fenced property, and walked through a second gate looking for people, looking for the arrestee or anyone else on the property, seeing what they thought was a converted barn that had an unusual lock, basically a residential door lock on it, power cords going to a barn. They walked the property. [¶] So certainly the courts have routinely found that there is more of an expectation of privacy towards the back of any property, especially a fenced one, and not only the perimeter fence but an internal fence from the porch to where that barn was.”
With regard to the deputies’ second visit to the property, the court stated that the deputies lawfully approached the house and inquired about the marijuana growing in the barn. The court interpreted the response they received as being “a consensual encounter.”
Finally, with regard to the search warrant, the court explained: “There is nothing to excise from the warrant. There was nothing misleading. Judge Tansil in reviewing the probable cause had the mistake in front of him. The officer that wrote the affidavit, Detective White, included the mistake. There is nothing hidden from the issuing magistrate or the search warrant, it was all laid out for Judge Tansil and, nevertheless, he issued the warrant knowing of the possibility of the transposed number and the officers lawfully being there, and making observations, and then a subsequent admission by one of the now named defendants.” The court concluded that the search warrant was properly issued and denied the motion to traverse, quash, and suppress the evidence.
On July 26, 2010, defendant entered into a negotiated disposition, which the trial court accepted. Defendant pleaded no contest to one count of unlawful cultivation of marijuana (Health & Saf. Code, § 11358) in exchange for the dismissal of the remaining counts and the promise of probation. Pursuant to the plea agreement, the court sentenced defendant to 120 days of county jail and three years of formal probation.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Background and Standard of Review
The deputies did not have a warrant to search 2780 Llano Road when they entered the property two times, and defendant contends that the searches on both of these occasions violated his Fourth Amendment rights. The first time the deputies entered his property, knocked on the door, and looked behind the house was illegal, according to defendant, because they had no right to enter the yard through a gate when the entire perimeter of the property was fenced. He contends that the deputies had a hunch that the numbers on the arrest warrant had been transposed, but he maintains that they had no good faith belief or reasonable basis for believing that the person named in the arrest warrant resided at 2780 Llano Road, rather than 2870 Llano Road, the address on the arrest warrant. Defendant claims that, after the deputies made an unconstitutional warrantless entry, they made an unconstitutional search when they went to the rear of the property and observed the barn. Defendant argues that the deputies’ entry onto the property for the second time, was again illegal, and their interaction with his mother, Peggy, and her admissions that marijuana was growing on the property were fruits of the illegal entries.
Since the deputies entered his property illegally, according to defendant, the search of his property pursuant to a search warrant based on the illegally obtained evidence was unconstitutional. Thus, he maintains that the trial court should have granted his motion to suppress this evidence. He asserts that the good faith exception under United States v. Leon (1984) 468 U.S. 897 (Leon), does not apply under People v. Machupa (1994) 7 Cal.4th 614 (Machupa). Defendant argues that the judgment should be reversed and the matter remanded to provide him the opportunity to withdraw his plea. (See People v. Ruggles (1985) 39 Cal.3d 1, 13.)
In reviewing the ruling on a motion to suppress, we defer to the trial court’s factual findings, express or implied, when supported by substantial evidence. (People v. Hoyos (2007) 41 Cal.4th 872, 891.) The power to judge credibility, weigh evidence, and draw factual inferences is vested in the trial court. (People v. James (1977) 19 Cal.3d 99, 107.) However, in determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Hoyos, supra, 41 Cal.4th at p. 891.)
II. The Law on the Expectation of Privacy
To prevail on a motion to suppress, a defendant challenging the constitutionality of a search or seizure must have a “legitimate expectation of privacy in the invaded place. [Citations.]” (Rakas v. Illinois (1978) 439 U.S. 128, 143.) Here, the deputies entered defendant’s property through the gate and then searched the yard and entered a second interior gate.
“The Fourth Amendment provides ‘[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated....’ [Citation.] This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. [Citation.] A similar guarantee against unreasonable government searches is set forth in the state Constitution [citation] but, since voter approval of Proposition 8 in June 1982, state and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard. [Citations.] ‘Our state Constitution thus forbids the courts to order the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution as interpreted by the United States Supreme Court.’ [Citation.]” (People v. Camacho (2000) 23 Cal.4th 824, 829-830, fn. omitted.)
The “ultimate standard set forth in the Fourth Amendment is reasonableness[.]” (Cady v. Dombrowski (1973) 413 U.S. 433, 439) There are two threshold questions: “First, did the defendant exhibit a subjective expectation of privacy? Second, is such an expectation objectively reasonable, that is, is the expectation that one society is willing to recognize as reasonable?” (People v. Camacho, supra, 23 Cal.4th at pp. 830-831.)
The Fourth Amendment expressly recognizes that individuals have a legitimate expectation of privacy in their own homes. (U.S. Const., 4th Amend.; see also Kyllo v. United States (2001) 533 U.S. 27, 31.) The Supreme Court has also held that persons have a reasonable expectation of privacy in certain exterior areas of residential property. (See Oliver v. United States (1984) 466 U.S. 170, 178-180.) However, the zone of Fourth Amendment protection afforded to a person’s home does not necessarily extend to his or her property line; only the “ ‘curtilage’ ”—i.e., “the land immediately surrounding and associated with the home”—is shielded from unreasonable searches and seizures. (Oliver, at p. 180 & fn. 11.) What lies beyond the boundary of the curtilage are “open fields” that government agents may enter without regard to the constraints imposed by the Fourth Amendment. (Id. at pp. 179-180.)
In United States v. Dunn (1987) 480 U.S. 294 (Dunn), the Supreme Court identified four factors (the Dunn factors) that are relevant to distinguishing between open fields and curtilage: (1) “the proximity of the area claimed to be curtilage to the home”; (2) “whether the area is included within an enclosure surrounding the home”; (3) “the nature of the uses to which the area is put”; and (4) “the steps taken by the resident to protect the area from observation by people passing by.” (Id. at p. 301.) The court cautioned that “these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration—whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” (Ibid.) “When the prosecution relies on evidence obtained by law enforcement officers from a protected area such as a curtilage without a warrant, it bears ‘the burden of establishing either that no search occurred, or that the search undertaken by the officers was justified by some exception to the warrant requirement’ such as exigent circumstances....” (People v. Chavez (2008) 161 Cal.App.4th 1493, 1499.)
“[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. (Payton v. New York (1980) 445 U.S. 573, 603.) The reasonableness of an officer’s entry is judged upon the facts available to the officer at the time he or she entered. (See People v. McDowell (1988) 46 Cal.3d 551, 563.)
III. The First Entry onto 2780 Llano Road
A. Entry without a Warrant
In the present case, the deputies had an arrest warrant, but the address on the warrant was 2870 Llano Road. They entered the yard and knocked on the door of the home with the address of 2780 Llano Road. The trial court found that the deputies acted with objective reasonableness in deciding that the arrest warrant mistakenly listed 2870 Llano Road rather than 2780 Llano Road. However, the proper question was not whether they acted with objective reasonableness, but whether they had reason to believe Morland, the person named in the arrest warrant, was in the residence at that address. (See Payton v. New York, supra, 445 U.S. at p. 603.)
The People concede that the deputies’ entry could not be justified by the arrest warrant for Morland because, even if the deputies had an objectively reasonable basis to believe that 2780 Llano Road was Morland’s residence, no facts in the record showed that they had any reasonable basis to believe Morland was on the premises when they arrived. Reasonable grounds to believe the person named in the warrant was in the house means such a state of fact as would lead a person of ordinary caution or prudence to believe, and to conscientiously entertain a strong suspicion the subject of the warrant was in the house. (People v. Pease (1966) 242 Cal.App.2d 442, 446.)
The People agree that the deputies’ entry and search of defendant’s property was without a warrant. They maintain that defendant did not have any reasonable expectation of privacy regarding the front yard and porch of the main house. They assert that the lower court did not resolve the issue of whether there was an expectation of privacy regarding the barn towards the back of the house. They urge us to remand the matter for the lower court to determine whether defendant had a reasonable expectation of privacy regarding the back of the property. (See Pen. Code, § 1260; People v. Minor (1980) 104 Cal.App.3d 194, 199.)
B. Trial Court’s Findings
The trial court found no expectation of privacy regarding the entry onto the property. However, with regard to the deputies’ entry through the second gate to the barn, the court observed the following: “The other issue is, well, is there more expectation of privacy farther back onto the property. And the first entry they walked to that porch and then walked further, walked past another gate into––certainly within the curtilage of a fenced property, and walked through a second gate looking for people, looking for the arrestee or anyone else on the property, seeing what they thought was a converted barn that had an unusual lock, basically a residential door lock on it, power cords going to a barn. They walked the property. [¶] So certainly the courts have routinely found that there is more of an expectation of privacy towards the back of any property, especially a fenced one, and not only the perimeter fence but an internal fence from the porch to where that barn was.”
Subsequently, the trial court stated: “Were there other homes or mobile buildings, something that could have been a further residence where a normal egress could have been made by again anyone lawfully on the property, the court believes that that’s an open question and is more likely than not based on the evidence that I heard that that was all reasonable.” Since this latter statement seems to be inconsistent with the court’s earlier statements indicating there was an expectation of privacy, the People argue that we should remand for the trial court to determine this issue.
C. Appropriateness of Remand
“In its disposition of a criminal case the appellate court is not limited to the more common options of affirmance, reversal or modification of the judgment or order appealed from. The court ‘may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances’ (Pen. Code, § 1260). Where the record on appeal discloses trial error affecting the fairness and reliability of the guilt determination process, the normal remedy is outright reversal; in that instance it would usually not be considered ‘just under the circumstances’ to direct the trial court to take further proceedings aimed narrowly at the specific error. But when the trial is free of prejudicial error and the appeal prevails on a challenge which establishes only the existence of an unresolved question which may or may not vitiate the judgment, appellate courts have, in several instances, directed the trial court to take evidence, resolve the pending question, and take further proceedings giving effect to the determination thus made.” (People v. Minor, supra, 104 Cal.App.3d at p. 199.) In Minor, the court reversed because there was Marsden error (People v. Marsden (1970) 2 Cal.3d 118), but remanded and directed the trial court to conduct a post trial Marsden hearing.
In the present case, unlike the situation in People v. Minor, the trial court did take evidence on the issue of curtilage and defendant’s expectation of privacy. The present case also is distinguishable from People v. Lazalde (2004) 120 Cal.App.4th 858, where the appellate court remanded because it lacked an adequate evidentiary record on which to decide the defendant’s suppression motion. (Id. at p. 865.) In Lazalde, the prosecution prevented the defendant from litigating the validity of the search warrant and argued in the trial court that no warrant was necessary under the probation condition exception. (Ibid.) The Supreme Court modified the law regarding the probation condition exception and the Court of Appeal in Lazalde concluded that this exception was no longer applicable. The Court of Appeal determined that it lacked an adequate evidentiary record on which to decide the suppression motion on any theory other than the probation search justification. It therefore remanded to the trial court to determine the validity of the search warrant. (Ibid.)
In contrast to People v. Lazalde, supra, 120 Cal.App.4th 858, here, not only was the expectation of privacy litigated, defendant did not do anything to prevent the prosecution from fully litigating the validity of the search. Thus, a remand is not necessary and would not be just under the circumstances. (See id. at pp. 865-866.)
D. Expectation of Privacy
Applying the Dunn factors to the undisputed evidence in the record compels the conclusion that defendant had a subjective and objective expectation of privacy regarding the back of his house where the barn was located. Two of the Dunn factors are “the proximity of the area claimed to be curtilage to the home” and “the nature of the uses to which the area is put[.]” (Dunn, supra, 480 U.S. at p. 301.) Reynolds, the licensed private investigator hired by defendant, testified that “[t]he trailer, barn and main residence were within the overall fenced area of the property.” He added, that the barn and other buildings appeared to be used “for daily living.” Deputy Misita testified that the barn had an extension cord and appeared to be a “make-shift apartment.” Thus, this evidence indicates there was an expectation of privacy given the proximity of the barn to the home and its use for daily living.
The remaining two Dunn factors are “whether the area is included within an enclosure surrounding the home” and “the steps taken by the resident to protect the area from observation by people passing by.” (Dunn, supra, 480 U.S. at p. 301.) Here, the residents had taken steps to protect the area from observation by people passing by as it was behind two fences, both secured by gates. Reynolds declared that “a large wooden gate... completely covered the driveway and residence” and protected the property from the public’s view.
“[A] person who surrounds his back yard with a fence, and limits entry with a gate, locked or unlocked, has shown a reasonable expectation of privacy for that area. [Citation.] The area is protected from unreasonable government intrusion, or a warrantless search, unless the circumstances excuse the warrant [citation].” (Vidaurri v. Superior Court (1970) 13 Cal.App.3d 550, 553-554; see also People v. Winters (1983) 149 Cal.App.3d 705, 707.) “To contemplate a contrary conclusion would itself lend credence to a specter of citadel-like fortifications in order to safeguard an otherwise objectively reasonable expectation of privacy of the contemporary rural dweller, a refuge neither required by nor compatible with established constitutional principles.” (Burkholder v. Superior Court (1979) 96 Cal.App.3d 421, 429.) The undisputed evidence of the fences surrounding the property as well as the photographs and testimony that the fence line was high, blocking the public’s view of much of the property, support a conclusion that defendant had an expectation of privacy regarding the barn.
E. Conclusion
Remand, as urged by the People, is not warranted because the issue regarding the expectation of privacy was litigated and the evidence established that the barn was behind the residence and surrounded by two fences and gates. Accordingly, the record establishes that defendant had an expectation of privacy regarding the barn and the warrantless search of that area was illegal. We therefore do not need to consider whether the initial entry into the yard and onto the porch of the residence was lawful.
IV. The Second Entry onto 2780 Llano Road
The deputies’ observation of the barn prompted their questioning of Peggy regarding the growing of marijuana on the property. The People acknowledge that they did not argue at the hearing on the motion to suppress that Peggy’s admission during the deputies’ second visit was sufficiently distinguishable as to be purged of the primary taint and, consequently, any such argument has been forfeited. Accordingly, Peggy’s statements were a product of the illegal search.
V. The Search Warrant
The People concede that the deputies’ observations were the basis of the search warrant and if their search of the property was unconstitutional, reversal is required under Machupa, supra, 7 Cal.4th 614. They agree that, under Machupa, the Leon good-faith exception to the exclusionary rule would not save the warrantless search conducted by Misita and Tait. The court in Machupa held that the good faith exception of Leon does not apply to validate a search pursuant to a warrant obtained subsequent to a warrantless unconstitutional search. (Machupa, at pp. 626-627.)
We therefore conclude that the lower court erred in determining that the good faith exception applies. Accordingly, we reverse its denial of defendant’s motion to suppress.
VI. Defendant Has Option of Withdrawing Plea
Defendant’s decision to plead guilty may have been impacted by the denial of his motion to suppress the evidence uncovered as a result of the illegal search. (See People v. Ruggles, supra, 39 Cal.3d at p. 13.) Defendant is entitled to withdraw his plea.
DISPOSITION
The judgment is reversed and the cause remanded to the superior court. That court is directed to vacate the guilty plea if defendant moves to withdraw the plea within 30 days of the finality of this opinion. In that event, on motion of the People, the original charges shall be reinstated and trial or other appropriate disposition shall proceed in accordance with the views expressed in this opinion. If defendant does not elect to withdraw his plea of guilty, the superior court shall reinstate the judgment.
We concur: Haerle, Acting P.J., Richman, J.