Opinion
H045453
10-18-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL TROY MALONE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. CR1601189)
Defendant Michael Troy Malone appeals from a judgment entered after he pleaded no contest to several violent offenses involving Jane Doe. He contends that the trial court erred when it denied his motion to suppress evidence. We find no error and affirm the judgment.
I. Statement of the Case
Defendant was charged by information with 24 counts: torture (Pen. Code, § 206 - counts 1, 12); aggravated assault (§ 245, subd. (a)(4) - counts 2, 13); assault with a firearm (§ 245, subd. (a)(2) - counts 3, 14); corporal injury on a cohabitant (§ 273.5, subd. (a) - counts 4, 15); false imprisonment by violence (§ 236 - counts 5, 16); criminal threats (§ 422, subd. (a) - counts 6, 17); child abuse (§273a, subd. (a) - counts 7, 18); forcible oral copulation (§ 288a, subd. (c)(2)(A) - count 8); rape (§ 261, subd. (a)(2) - counts 9, 10, 11); dissuading a witness (§ 136.1, subd. (b)(2) - counts 19, 21, 23); and violating a domestic relations restraining order (§ 273.6, subd. (a) - counts 20, 22, 24). It was also alleged that defendant personally used a firearm (§ 12022.5) and personally inflicted great bodily injury (§ 12022.7) in connection with many of the counts.
All further statutory references are to the Penal Code.
After the trial court denied defendant's motion to suppress evidence, defendant pleaded no contest to six of the charged counts: aggravated assault, corporal injury on a cohabitant, false imprisonment by violence, criminal threats, dissuading a witness, and violating a domestic relations restraining order. Pursuant to the negotiated plea agreement, the trial court dismissed the remaining counts and allegations, stayed execution of a prison sentence of seven years, granted five years of formal probation, took a stipulated waiver of credits exceeding 365 days, and released defendant.
II. Statement of Facts
The statement of facts is based on the evidence introduced at the suppression hearing. The statement of facts in defendant's opening brief refers to evidence from the preliminary examination. Since defendant did not make a suppression motion at the preliminary examination and the transcript from that hearing was not admitted into evidence at the suppression hearing, we do not consider evidence from the preliminary examination. (People v. Fisher (1995) 38 Cal.App.4th 338, 341.)
A. Prosecution Evidence
The parties stipulated that the officers did not have a warrant to search the residence and defendant had standing to bring the suppression motion.
At approximately 10:00 p.m. on August 23, 2016, Deputies Brandon Mingus and Victor Casada responded to a call involving domestic violence. They initially met with Doe on Westside and South Street and then conducted an interview at the county jail. Doe was crying and had injuries to her arms, neck, and face. Doe stated that she and defendant, who was her fiancé, had been living together for almost six years. Doe reported that defendant had engaged in domestic violence involving a firearm during two incidents at their residence. One incident had occurred on August 19, 2016, and the other had occurred on August 22, 2016. Doe also told the deputies that defendant had two rifles and a revolver in their residence. Based on Doe's descriptions of defendant's conduct towards her, the deputies believed that defendant's crimes included aggravated assault, assault with a firearm, false imprisonment, intentional infliction of serious bodily injury, torture, and child abuse.
Doe told the deputies that her possessions were in their residence on Third Street in San Juan Bautista, but she was afraid to retrieve them while defendant was present and asked for the deputies' assistance. She was staying temporarily in Clovis. Doe did not indicate that the Clovis property would be her future residence or that she had relinquished her right to the San Juan Bautista residence. Doe told Deputy Mingus that she would give him a key to her residence and she consented to use of the key to enter the residence. The deputies decided to arrest defendant, secure defendant's firearms, and provide Doe with access to her residence.
At 12:20 a.m. on August 24, 2016, Sergeant Mull obtained an emergency protective order (EPRO) from the court. Deputies Mingus, Casada, and Williams, and Sergeant Mull then met Doe at the Windmill Market parking lot, which was six or seven blocks from her San Juan Bautista residence. Doe gave them her house key and again gave her consent to use her key to enter her residence. She also asked if she could get her belongings.
The deputies arrived at the residence at about 1:00 a.m. The house was dark and there were no signs of activity. For officer safety, Deputies Mingus and Williams took perimeter positions on the property while Sergeant Mull and Deputy Casada went to the front door. They were concerned about firearms "being present at the house and one actually being used on the victim." Deputy Casada was accompanied by a dog. Sergeant Mull used Doe's key to open the front door, but did not enter the residence. He moved to the side of the door. Deputy Casada, who was also standing outside, gave two canine announcements, that is, he advised anyone inside the residence to come out or he would send the dog in. After the second announcement, defendant said, "Don't send the dog, I am coming out." At that point, Deputy Casada, who was still standing outside the residence, saw "hands coming out from the hallway." The deputy ordered defendant to come out, slowly turn around, and walk towards the sound of his voice, because he was concerned that defendant might have firearms in his waist band.
Defendant followed the deputy's orders and was handcuffed outside the residence. Defendant, who was wearing a T-shirt and boxers, asked to put on some pants and shoes. The deputies escorted him back into the residence where he was given his pants and shoes. Defendant was seated on a couch. Deputy Mingus joined the other deputies in the residence. Before Deputy Mingus told defendant why they were at the residence, defendant said that he already knew why they were there. For officer and public safety, Deputy Casada asked defendant if there were any firearms. Defendant told him that there was a rifle inside the hall closet and a revolver and another rifle inside the master bedroom closet. Deputy Casada opened doors to both closets and found a rifle in a rifle case in the hall closet and a rifle and a revolver in the master bedroom closet. He seized the revolver as evidence and the rifles for safekeeping. Defendant was arrested and transported to the county jail where he was served with the EPRO.
After defendant left the residence, Deputy Casada contacted Doe to inform her that it was safe to return to her residence and retrieve her personal items. He also told her that he had taken custody of the firearms. At her request, the deputy also took custody of a crossbow.
B. Defense Evidence
Defendant testified that he was asleep when he heard a dog barking and thought a wild animal was in his house. A few moments later, he heard someone yelling. He "kind of panicked" and "finally came to the thought that there was these officers at my home." There were "lights shining in [his] house as though people were in [his] house." He heard a command to turn around and walk backwards to them. They were in his house and the dog was in the doorway and "almost biting" him. The deputies handcuffed defendant inside his house. At defendant's request, one of the deputies brought him pants and shoes. He did not recall saying, "[D]on't send the dog, I am coming out." He remembered telling Deputy Casada the location of the firearms. Defendant never asked why the deputies were there, because it was 1:00 a.m. and he "was quite startled that anyone was there. So [he] didn't know what to think of it."
C. The Trial Court's Ruling
The trial court found that Doe was near, though not at, the residence and gave her consent for the deputies to use her key to enter. The court also found that Doe's consent authorized the deputies to secure firearms under section 18250, since they had a valid EPRO order. The court further noted: "They actually stopped at the doorway, they opened the door, they shined the light and they call for him to see if he is there. He is there, he gets up, he wakes up, and it's clear he is not in a stupor, very detailed in his testimony what was going on, by and large doesn't vary too much from the officer's testimony. [¶] . . . He steps out, he's handcuffed. He requests to go back in, the officers accommodate him and it is reasonable accommodation. At no time then or when they asked him about the weapons as they were told by Jane Doe does he revoke any consent, and it is incumbent upon him to do so. [¶] He, in fact, is cooperative as I indicated at that point. Everything is kind of calmed down a little more than when the initial encounter comes. The dog's no longer barking outside, the lights shining and the like, he's got his clothes on, he's now in a position where he identifies where they should go. They go directly there, they pick it up, it is consensual, and there is no violation that I can see at that point."
III. Discussion
Defendant contends that the warrantless search of his residence lacked consent and thus violated his constitutional rights.
Defendant also argues in his opening brief that the deputies' failure to comply with the knock-notice rule mandates exclusion of evidence seized in violation of the Fourth Amendment. This rule requires the police to knock on the door, announce their identity and purpose, and wait a reasonable amount of time before entering. (Richards v. Wisconsin (1997) 520 U.S. 385, 387.) Defendant concedes in his reply brief that the remedy of a knock-notice violation is not exclusion of the evidence (Hudson v. Michigan (2006) 547 U.S. 586, 599), but he argues this violation may be considered on the issue of the flagrancy of police misconduct (People v. Brendlin (2008) 45 Cal.4th 262, 268-269). Defendant did not raise the issue of a knock-notice violation at the suppression hearing and thus the issue has been forfeited. (People v. Williams (1999) 20 Cal.4th 119, 130; People v. Gann (1968) 267 Cal.App.2d 811, 813.) Defendant argues, however, that this court may reach the merits, because the issue is a question of law based on undisputed facts. We reject this argument. Since the issue was not raised, neither party questioned Deputy Casada as to whether any of the deputies knocked on the door, announced their identity and purpose, and waited for a response.
"In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence. [Citation.] And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment. [Citation.]" (People v. Simon (2016) 1 Cal.5th 98, 120.)
The federal and state Constitutions prohibit unreasonable searches and seizures by the government. (U.S. Const., 4th & 14th Amends.; Cal. Const., art. 1, § 13.) Evidence obtained by a police officer in violation of the Fourth Amendment is subject to the exclusionary rule. (Segura v. United States (1984) 468 U.S. 468 U.S. 796, 804.) A warrantless entry into a home is presumptively unreasonable. (Payton v. New York (1980) 445 U.S. 573, 587.) In the case of a warrantless search of a home, the prosecution bears the burden of establishing that the search "was justified by some exception to the warrant requirement." (People v. Camacho (2000) 23 Cal.4th 824, 830.)
One exception to the warrant requirement is consent. "A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant." (Fernandez v. California (2014) 571 U.S. 292, 306.) "[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." (United States v. Matlock (1974) 415 U.S. 164, 171.) The "common authority" theory of consent rests "on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." (Id. at p. 171, fn. 7.) There is an exception to this rule. A warrantless entry and search of a residence with the permission of one occupant is unlawful when a co-occupant is "present at the scene and expressly refuses to consent." (Georgia v. Randolph (2006) 547 U.S. 103, 106 (Randolph).)
"To ascertain if the prosecution has met its burden of establishing the consent exception to the warrant requirement, the trial court determines whether an officer's belief that he or she had consent to search is objectively reasonable under the circumstances. [Citation.]" (People v. Lazalde (2004) 120 Cal.App.4th 858, 865.)
Here, Doe was six or seven blocks from the residence and waiting to retrieve her personal items. She gave her consent and her key to allow the deputies to enter the residence she shared with defendant to secure his firearms. Sergeant Mull opened the door with Doe's key, but the deputies did not enter the residence. After Deputy Casada gave two canine announcements, defendant exited the residence. Though defendant observed the deputies at the front door and was aware of the deputies' purpose in coming to the residence, he was cooperative and did not expressly refuse to consent.
Relying on Tompkins v. Superior Court (1963) 59 Cal.2d 65 (Tompkins), People v. Shelton (1964) 60 Cal.2d 740 (Shelton), and People v. Haskett (1982) 30 Cal.3d 841 (Haskett), defendant contends that Doe's consent did not allow the deputies to search the premises. But Doe did not consent to a general search of the residence. She gave her consent to the deputies to enter and secure defendant's firearms so that she could safely return to the residence and retrieve her belongings.
In Tompkins, a third party was arrested for possession of marijuana. (Tompkins, supra, 59 Cal.2d at p. 66.) He gave his keys and consent to the search of the apartment he shared with the defendant. (Id. at p. 67.) Without a warrant, the officer went to the apartment and used the wrong key. After the defendant opened the door, the officer identified himself. The defendant slammed the door shut. (Ibid.) The officer kicked the door in and searched the room. (Ibid.) The California Supreme Court held that "one joint occupant who is away from the premises may not authorize police officers to enter and search the premises over the objection of another joint occupant who is present at the time, at least where as in this case, no prior warning is given, no emergency exists, and the officer fails even to disclose his purpose to the occupant who is present or to inform him that he has the consent of the absent occupant to enter." (Id. at p. 69.) Unlike in Tompkins, defendant never objected to the deputies' entry into the residence, he knew the deputies' purpose, and the deputies did not conduct a general search of the premises.
Shelton, supra, 60 Cal.2d 740, is also distinguishable. The Shelton court concluded that the search of an apartment could not be justified on the ground that a co-occupant of the apartment had consented to it. (Id. at p. 745.) The court reasoned that the arrest of the co-occupant and his refusal to assist the officers in gaining access to the residence established that the co-occupant's consent was not voluntary. (Ibid.) Here, substantial evidence supports the trial court's finding that Doe's consent to the deputies' entry to secure the firearms was voluntary.
In Haskett, supra, 30 Cal.3d 841, the officers obtained the defendant's wife's consent to enter their residence, arrested the defendant, removed him from the house before he expressly refused to consent to a search, and searched the residence. (Id. at p. 856.) The Haskett court held that the search was valid. (Id. at p. 857.) In dicta, the court stated that "an absent cotenant cannot authorize the police to burst into occupied premises unannounced if there is no emergency justifying such a frightening intrusion." (Ibid.) Here, the deputies did not "burst into" the residence and did not conduct a general search of the premises.
Defendant's reliance on United States v. Lundin (9th Cir. 2016) 817 F.3d 1151 is also unavailing. In contrast to the present case, no occupant had consented to the officers' entry into the defendant's residence. --------
Defendant contends that he never consented to a search of the residence. Because Doe had consented to a search of the residence, the deputies were not required to obtain defendant's consent prior to opening the door with the key given to them by Doe. As the Randolph court explained: "So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it. . . . [I]t would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received. There is no ready reason to believe that efforts to invite a refusal would make a difference in many cases, whereas every co-tenant consent case would turn into a test about the adequacy of the police's efforts to consult with a potential objector. . . . The pragmatic decision to accept the simplicity of this line is, moreover, supported by the substantial number of instances in which suspects who are asked for permission to search actually consent, albeit imprudently, a fact that undercuts any argument that the police should try to locate a suspected inhabitant because his denial of consent would be a foregone conclusion." (Randolph, supra, 547 U.S. at pp. 121-122.)
Defendant acknowledges that he "did not affirmatively refuse police access to his home," but he argues that "he was not in a position to do so" when he was ordered out of the residence. The Randolph court recognized circumstances when law enforcement seeks to protect victims of domestic violence. "No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other co-tenant objected." (Randolph, supra, 547 U.S. at p. 118.) This reasoning would also apply in the circumstances of the present case, that is, the deputies had probable cause to arrest defendant for several crimes of domestic violence and to remove him from the doorway when they had Doe's consent to secure firearms in the residence in order to provide her with "the opportunity to collect belongings and get out safely." (Ibid.)
As previously noted, the deputies did not immediately enter the residence and conduct a general search. It was only after defendant requested pants and shoes that they escorted him into the residence to retrieve these items. Though detained, defendant did not object to their entering the residence and they lawfully did so. (People v. Breault (1990) 223 Cal.App.3d 125, 132.) At that point, the deputies also had Doe's consent to enter and secure the firearms in the residence. When they were in the residence, defendant was asked if he had any firearms. In response, defendant directed the deputy to their location. Based on this response, the deputy reasonably believed that they had not only Doe's consent to secure the firearms, but also defendant's.
In sum, the trial court properly denied defendant's motion to suppress evidence.
IV. Disposition
The judgment is affirmed.
/s/_________
Mihara, Acting P. J. WE CONCUR: /s/_________
Grover, J. /s/_________
Danner, J.