Opinion
F041146.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. EDDIE BERNAL ESQUIVEL, Defendant and Appellant.
Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, John G. Mclean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Eddie Esquivel appeals following a plea of no contest after the trial court denied his motion to suppress evidence. He contends the trial court erred in denying his motion to suppress. (Pen. Code, § 1538.5.) We reverse and remand for further proceedings.
In May of 2002 the Kern County District Attorneys office charged appellant with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), being under the influence of a controlled substance (Health & Saf. Code, § 11150, subd. (a)), and possession of narcotics paraphernalia (Health & Saf. Code, § 11364). The information further alleged that appellant had previously been convicted of two prior "strikes" and had served three prior state prison terms. After entering a plea of not guilty, appellant moved to suppress evidence. The trial court denied the motion to suppress and appellant changed his plea to no contest on the first count and guilty on the second and third counts. Appellant was sentenced to 25 years to life. He timely appeals.
FACTS
Around 9:30 p.m. in January of 2002, Kern County Deputies went to a home in Taft to conduct a probation search of a woman named Dayna Blackwood. As deputies approached the house through the backyard a female opened the door. Appellant was standing behind the woman. As soon as appellant saw the officers, he began backing away from them hiding his hands behind his back. The woman stepped aside and officers entered the residence, telling appellant to show them what was in his hands. One of the officers reached around and grabbed appellants hand as appellant shuffled a canister between his hands. The deputy was concerned appellant could have had a weapon. After appellant was searched for weapons, the canister was opened and it contained methamphetamine. While appellant was detained, officers learned he was on parole. Appellant was arrested.
The record is somewhat ambiguous regarding when officers determined appellant was on parole in relation to opening the container. At the end of the hearing, however, the court stated it believed the officers did not learn appellant was on parole until after opening the container.
DISCUSSION
Standard of Review
We review a ruling on a motion to suppress evidence to determine whether it was supported by substantial evidence. In making this determination, we defer to the trial courts factual findings, express or implied, and exercise our independent judgment in determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment. (People v. Ayala (2000) 23 Cal.4th 225, 255; People v. Glaser (1995) 11 Cal.4th 354, 362.) The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences is vested in the trial court alone. On appeal, all presumptions favor the proper exercise of the authority vested in the trial court. (People v. Arango (1993) 12 Cal.App.4th 450, 452-453.)
Though appellant argues other grounds for reversal, the primary issue in this case is whether, once officers determined appellant was holding a film canister and not a weapon, the search of the film canister violated appellants Fourth Amendment rights. Respondent initially contended "the deputies were entitled to search [the canister] pursuant to appellants conditions of release on parole." We requested supplemental briefing in light of the California Supreme Courts decision in People v. Sanders (Sanders) (2003) 31 Cal.4th 318.
To the extent appellant maintains the entry into the home violated his rights, we disagree. Regardless of the officers intent in going to the house in the first place, their actions were justified once the door spontaneously swung open and appellant behaved in a manner that could be dangerous to the deputies. Appellant was walking away hiding something behind his back, and officers were entitled to detain him for their own safety whether he was inside or outside the residence. (See Terry v. Ohio (1968) 392 U.S. 1, 24.)
Application of People v. Sanders
In Sanders, police searched the residence of two persons, one of whom was on parole and subject to a search condition of which the police were unaware at the time of the search. After an analysis centered on the deterrent effect of the exclusionary rule, the court reasoned that "the admission of evidence obtained during a search of a residence that the officer had no reason to believe was lawful merely because it later was discovered that the suspect was subject to a search condition would legitimize unlawful police conduct." (Sanders , supra, 31 Cal.4th at p. 335.) Based on this reasoning the court held that "an otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted." (Ibid., fn. omitted.)
In its supplemental brief, respondent contends that Sanders is inapplicable to this case because here appellants person was searched and Sanders was only concerned with the after-the-fact justification of residential searches. Respondent cites to the Sanders courts statement that "`"physical entry [into] the home is the chief evil against which the wording of the Fourth Amendment is directed."" (Sanders , supra, 31 Cal.4th at p. 324.) Further, the Sanders court gave as an additional ground for its ruling the fact that it was poor public policy to discourage people from taking probationers into their homes. (Id. at p.[cr 643].)
Despite this language, however, the core reasoning behind the ruling in Sanders — that the Fourth Amendment is best protected by "removing the incentive to disregard it" — is simply unaffected by any distinction between an unlawful search made of an individual as opposed to a residence. (See United States v. Calandra (1974) 414 U.S. 338, 347 ["The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens `to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ... " (italics added)].) Thus, we conclude the Sanders courts disapproval of retroactive justification of a warrantless search due to probationary status would apply equally to the unlawful warrantless search of a probationers actual person. Accordingly, the issue before us becomes not one of whether appellants parole status justified the search (it cannot), but whether the search was lawful regardless of appellants parole status.
In fact, the majoritys reasoning was the basis for Justice Baxters concurrence and dissent. (Sanders, supra, 31 Cal.4th at p. 341.)
To the extent In re Tyrell J. (1994) 8 Cal.4th 68, held differently, the Sanders court expressly declined to address the issue of whether a juvenile probation search can be justified in this manner, indicating the distinction (if any) in the Tyrell J. case was the probationers age, not the fact that the search was of his person. (Sanders, supra, 31 Cal.4th at p. 335, fn. 5.)
Remand is the appropriate remedy
The issue of the lawfulness of the search of the container irrespective of appellants parole status was not, however, litigated below. In the trial court, the People relied solely on appellants parole status to justify the warrantless search of the container. Generally, where the defendant had no notice of an alternate theory, and thus no opportunity to present evidence in opposition, the People cannot relitigate an entirely new theory on remand. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640.) There is no question here that we lack an adequate evidentiary record on which to decide the suppression motion on any theory other than the parole search justification advanced below. Nevertheless, we can remand and direct a limited hearing on a new motion to suppress based on a change in the law. As stated in People v. Minor (1980) 104 Cal.App.3d 194, "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)." (See also Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 950 (Crosby, J. concurring) [distinguishing Lorenzana where a change in the law occurred to alter prosecution argument on suppression motion and recognizing such a situation differs from where the prosecution has otherwise failed to advance a "tried and true prosecution pitch[]"]; and see generally, Pen. Code, § 1538.5, subd. (h).)
In supplemental briefing the People, citing to Lorenzana, state that if we conclude the Sanders decision is applicable to these facts, they are "constrained to concede that the search of the film canister in this case was improper." We decline to accept the Peoples concession without a complete evidentiary record on this issue.
Prosecutors cannot be required to be prescient or lengthen trial court proceedings by asserting every conceivable argument in order to take advantage of a possible subsequent change in the law. To not allow the parties to fully develop a possible factual basis for the search when they were not elicited or argued previously simply because of the Peoples and the trial courts justifiable (at the time) conclusion that appellants parole status would justify the search would be a manifest injustice. Accordingly, we will remand the matter to the trial court to conduct a new suppression hearing allowing the People to advance alternate theories in support of the warrantless search.
We also note that the district attorney did orally state an additional ground for suppression: that appellants suspicious actions gave rise to reasonable suspicion of criminal activity, regardless of whether he was on parole.
DISPOSITION
The judgment is reversed and remanded to the superior court with directions to conduct a new suppression hearing consistent with the views expressed herein. If the court grants the motion to suppress, it shall vacate the judgment and afford appellant an opportunity to withdraw his plea. If the superior court denies the motion to suppress, it shall reinstate the judgment. (See People v. Torres (1992) 6 Cal.App.4th 1324, 1335.)
WE CONCUR: Levy, J., Gomes, J.