Opinion
A129731
10-28-2011
THE PEOPLE, Plaintiff and Respondent, v. KEVIN PHILLIP MARTIN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Mateo County Super. Ct. No. SC068430A)
I.
INTRODUCTION
Appellant Kevin Phillip Martin entered a plea of no contest to a felony charge of possessing methamphetamine for sale (Health & Saf. Code, § 11378), after the superior court denied his motion to suppress evidence seized at his residence under a search warrant (Pen. Code, § 1538.5). On appeal from the judgment of conviction, he challenges the superior court's order denying his motion to suppress, contending the decision to obtain the warrant was prompted by the observations of police during an earlier, unlawful search. We disagree, and affirm the judgment.
II.
PROCEDURAL BACKGROUND
On April 21, 2009, appellant was charged by information with one count of possessing methamphetamine for sale (Health & Saf. Code, § 11378) (count one), and one count of maintaining a place for the sale of controlled substances (Health & Saf. Code, § 11366) (count two). The information included special allegations that he was armed with a firearm at the time of each alleged offense (Pen. Code, § 12022, subds. (a)(1), (c)), and that the amount of methamphetamine possessed for sale was greater than 28.5 grams (Pen. Code, § 1203.073, subd. (b)(2)). Appellant entered a plea of not guilty to both charges and denied the special allegations.
Thereafter, appellant filed a motion to suppress evidence seized during a search of his Belmont residence by law enforcement on February 2, 2009. (Pen. Code, § 1538.5.) After full briefing, including supplemental briefs, the motion was heard over three days in September and October 2009. In a 15-page order filed on November 16, 2009, the superior court denied the motion.
In May 2010, appellant filed a change of plea, entering a plea of no contest to count one and admitting two sentence enhancements alleged in the information (Pen. Code, §§ 12022, subd. (c), 1203.073, subd. (b)(2)). According to the terms of the negotiated plea, the superior court dismissed count two, and struck the remaining special allegation. At sentencing on July 28, 2010, the superior court suspended imposition of sentence and placed appellant on three years formal probation with conditions, including that he serve one year in the county jail. The superior court stayed the jail term pending conclusion of this appeal.
III.
FACTUAL BACKGROUND
The following evidence was presented at the hearing on appellant's motion: In early 2009, the California Department of Corrections and Rehabilitation fugitive unit (CDC team) received information from a confidential informant that a parole violator, Michael Leroy Glidden, was living at appellant's residence. Glidden had 2003 convictions for possessing a controlled substance for sale (Pen. Code, § 11378) and possessing/manufacturing a dangerous weapon (Pen. Code, § 12020), and a 2006 conviction for recklessly evading a peace officer (Veh. Code, § 2800.2). In 2007, he was released on parole, subject to a search condition, but he violated his parole, and in December 2007, a warrant for his arrest issued, identifying him as a fugitive from justice. The informant indicated that five or six people stayed at appellant's residence, narcotics were sold there, and there were weapons inside. The informant directed agents to a website showing a female at the residence with an M16 assault rifle and another firearm.
On January 29 and 30, 2009, the CDC team conducted surveillance of appellant's residence, seeking to confirm this information and to execute the warrant for Glidden's arrest. During this time, they "saw a number of different individuals come up to the house, go into the house for a few moments, leave and drive away . . . in different vehicles." The CDC team found this visitor pattern consistent with the sale of controlled substances at the residence. Neighbors confirmed that appellant lived at the residence, and that Glidden had stayed there.
While surveilling the residence again on the afternoon of February 2, 2009, the CDC team observed appellant walk up the driveway, look left and right, and walk back toward the house. Fifteen or twenty minutes later, the agents saw Glidden do the same thing. At 6:45 p.m., a confidential informant confirmed that Glidden was inside the house.
Around 7:00 p.m., the lead agent, Leo Pierini, knocked on the door and "announced police, announced that we demanded entry, we were conducting a parole search." He knocked again 10 to 15 seconds later. After giving knock-notice a third time with no response, the CDC team forced entry through the front door to execute the warrant for Glidden's arrest. As they entered the residence, they saw Glidden come around the corner into a hallway, with appellant behind him. Glidden and appellant were directed to the floor, handcuffed, and taken outside. A Ziploc bag containing a small amount of methamphetamine was found in Glidden's pants pocket.
Based on information indicating other persons and weapons were inside the house and that it was the site of ongoing narcotics activity, Agent Pierini decided "to clear the house, for officer safety." (See People v. Ledesma (2003) 106 Cal.App.4th 857, 860, 865 (Ledesma)["Firearms are, of course, one of the ' "tools of the trade" ' of the narcotics business"].) To ensure no one inside posed a threat, CDC agents inspected all rooms and areas where anyone could hide. In the course of this security sweep, Agent Pierini entered Glidden's bedroom and saw a large glass mason jar containing marijuana. In appellant's bedroom, Agent Pierini saw a display of knives and bladed instruments on the wall and "drug smoking glass pipes" on the desk. He heard police communications transmitting and observed in plain view a police scanner, which narcotics dealers use to avoid detection of their business. Agent Pierini saw a holster for a firearm in a large cabinet and a glass jar containing marijuana on a chest in the closet. After confirming no threat was present, CDC agents left appellant's bedroom.
The CDC team did not disturb or seize the items they observed in appellant's bedroom. Based on their observations during the protective sweep, the team "locked down or secured the residence" and contacted the San Mateo County Narcotics Task Force (NTF) around 7:45 p.m. Agent Pierini testified that he could have prepared a warrant, but chose to "call the experts" because the fugitive hunt had transformed into a narcotics investigation. His team's primary duty was to serve the parole violation arrest warrant, and he wanted to obtain the insights of narcotics officers and involve them in the decision of how to proceed with the investigation that they would be handling. In these circumstances, he usually allows the local agency to decide whether to seize items found in plain view and continue the search as a parole search, or to secure the premises and obtain a warrant. Agent Pierini remained inside the house pending NTF's arrival.
NTF officers, including Gilberto Gomez and Dan Guiney, arrived at the residence a half hour later. Attached to the flagpole holder in front of the house, Gomez noticed a small surveillance camera, which drug dealers often use to monitor the arrival of customers, rival sellers, and police. Agent Pierini brought Gomez and Guiney inside the residence to show them what the CDC team had observed in plain view during the protective sweep, including the glass mason jar containing marijuana in Glidden's bedroom and the items in appellant's bedroom closet. In appellant's bedroom, the officers heard a police scanner, and when they looked in the direction of the sound, they noticed a digital scale adjacent to the scanner. Narcotics dealers use scales to break down drugs into smaller amounts for sale. Gomez and Guiney remained in appellant's bedroom around five minutes and inside the house for 15 to 20 minutes. The agents did not disturb the evidence at that time or search any further. Guiney testified: "We were just there to observe what Agent Pierini had seen." Gomez said Agent Pierini asked "if we could write a warrant based on the items he had found and other information he had had previously." Agent Pierini testified that, because the residence was secured, "[W]e felt better in going and getting a search warrant to conduct a search of the premises."
Gomez prepared the paperwork to obtain a search warrant based on his observations and what Agent Pierini told him. Guiney and other officers remained inside the residence while awaiting the warrant. The magistrate signed the warrant just after midnight, and Gomez notified the agents standing by at the residence. NTF officers searched appellant's bedroom under the warrant and, in addition to the evidence seen earlier, seized two Ziploc bags containing a total of 89 grams of suspected crystal methamphetamine, "pay/owe sheets" for recording narcotics sales transactions, $1,090 in cash, more than three pounds of marijuana, and a .44 Magnum revolver.
IV.
DISCUSSION
The validity of a police search is reviewable on appeal from a conviction entered on a plea of no contest if the defendant raised the issue in the trial court. (People v. Hobbs (1994) 7 Cal.4th 948, 956; People v. Lilienthal (1978) 22 Cal.3d 891, 896.)
Appellant contends the evidence seized from his bedroom under the search warrant is the fruit of an unlawful search because the warrant was prompted by the observations of NTF officers during an illegal entry into his bedroom. Thus, the primary question before us is whether the entry into appellant's bedroom by the NTF officers (NTF entry) was lawful. The superior court concluded that it was. In reviewing this decision, we consider the record in the light most favorable to respondent and defer to the superior court's express and implied factual findings if supported by substantial evidence. (People v. Woods (1999) 21 Cal.4th 668, 673 (Woods).)We independently determine, however, whether these factual findings demonstrate that a police search was lawful under federal constitutional standards. (Id. at pp. 673-674.) In determining whether a particular search was lawful, " 'the appropriate test is whether a person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable government intrusion.' [Citation.]" (People v. Justin (1983) 140 Cal.App.3d 729, 739 (Justin).)
When the affidavit supporting a search warrant includes information derived from unlawful police conduct, the warrant remains valid if the remaining information provides probable cause, " ' "provided that the officers were not prompted to obtain the warrant by what they observed during the initial entry." [Citation.]' [Citation.]" (People v. Weiss (1999) 20 Cal.4th 1073, 1074-1075, 1078, 1082 (Weiss).)
Appellant's privacy rights were impacted, but not eliminated, by his decision to share his residence with Glidden, a parolee and fugitive from justice. The CDC team lawfully entered his residence to serve a parole violation warrant for Glidden's arrest. (See People v. Leblanc (1997) 60 Cal.App.4th 157, 164 [" '[F]or Fourth Amendment purposes, an 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' "].) As Glidden was subject to a parole search condition, the CDC agents were authorized to search "those portions of the residence over which they reasonably believe[d] [Glidden] ha[d] complete or joint control," including the common areas of appellant's residence. (See Woods, supra, 21 Cal.4th at p. 682; People v. Pleasant (2004) 123 Cal.App.4th 194, 197 [persons who live with probationers cannot reasonably expect privacy in areas of a residence that they share with probationers].) Nonetheless, those who reside with a parolee generally retain normal expectations of privacy in their persons and the residential areas subject to their exclusive access or control. (See People v. Robles (2000) 23 Cal.4th 789, 798 [probationer].) In this case, therefore, appellant retained a reasonable expectation of privacy in his bedroom. (See Ledesma, supra, 106 Cal.App.4th at p. 867.)
Appellant argues that the NTF officers could properly join CDC agents in his bedroom only if the CDC agents were there lawfully. We agree. (See Justin, supra, 140 Cal.App.3d at p. 740 [invited entry]; People v. Plane (1969) 274 Cal.App.2d 1, 3-5 (Plane)[first officer lawfully in the apartment at landlord's request]; People v. Duncan (1986) 42 Cal.3d 91, 99 (Duncan) ["an officer was lawfully on the premises already"].) However, appellant contends that, at the time of the NTF entry, the CDC agents' justification for entering his bedroom had ended, that Agent Pierini's presence there was unlawful, and, therefore, that Agent Pierini's subsequent entry into his bedroom constituted an illegal reentry.
Appellant's sole focus is whether the CDC team could be lawfully present in his bedroom, and he does not argue that it was improper for the NTF officers to join a CDC agent who was lawfully there. Indeed, he acknowledges: "The cases upon which the trial court relied state that so long as continuous presence is reasonable, other officers may enter and join the officers who are there."
Initially, we note that appellant does not dispute the superior court's finding that CDC agents first entered appellant's bedroom in the performance of a valid protective sweep—an exception to the warrant requirement. (See Maryland v. Buie (1990) 494 U.S. 325, 327 (Buie) [officers may conduct a "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others] "]; People v. Celis (2004) 33 Cal.4th 667, 676-679 [same]; Ledesma, supra, 106 Cal.App.4th at p. 864 ["[A] security sweep may properly precede a probation search"].) A search must be "suitably circumscribed by the exigencies which justify its initiation. (People v. Amaya (1979) 93 Cal.App.3d 424, 428 (Amaya).) A protective sweep " 'lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete [the police action] and depart the premises.'. . ." (Ledesma, p. 867, quoting Buie, pp. 335-336, fn. omitted; see U.S. v. Isiofia (2d Cir. 2004) 370 F.3d 226, 234 [concluding police must leave once they eliminate the dangers that justify a security sweep: "Were this not the rule, searches begun as minor intrusions on domestic privacy would expand beyond their legitimate purposes"].) Thus, in this case, when the objective of the protective sweep was satisfied, no justification remained for police presence inside the room.
Appellant contends the subsequent entry into his room was an unlawful intrusion. We agree with his general observation that an independent justification is required for every warrantless entry by police, including those instances when the officers initially enter a residence lawfully but depart the premises and reenter later. (Justin, supra, 140 Cal.App.3d at p. 736 [subsequent entries valid only if appellant waived his privacy rights or "the exigency that justified the initial entry can be extended to justify those that followed"]; see People v. Boragno (1991) 232 Cal.App.3d 378, 386 (Boragno)["no sufficient exigent circumstances to justify the second warrantless entry and seizure" as initial emergency had dissipated].) In People v. Bradley (1982) 132 Cal.App.3d 737 (Bradley),the court held that officers who left the interior of an apartment without removing contraband they saw during an entry prompted by exigent circumstances "were in the same position as though they were possessed of reliable information showing [the defendant's] home contained illegal drugs, and they were subject to the same rules of conduct. They were bound to present these facts to a magistrate and obtain a warrant, to obtain consent to enter[,] or reenter because of exigent circumstances." (Bradley, p. 744; accord, People v. Keener (1983) 148 Cal.App.3d 73, 77-78 (Keener) [officer entered defendant's apartment unlawfully to retrieve a gun observed by another officer during a search for other suspects or victims].) In Bradley, the court held that the defendant regained his right to privacy when the initial emergency passed and suppressed the evidence seized during a subsequent entry. (Bradley, p. 744; see Keener, p. 78 ["When the exigency ends, the warrant requirement reemerges"].)
In this case, however, the superior court concluded that "there was no 're-entry" because law enforcement never left the residence and there was a police presence at the residence at all times between the initial entry until service of the search warrant. From this finding, the superior court concluded that the NTF entry was a mere continuation of the initial entry into appellant's bedroom during the protective sweep. We agree. (See Plane, supra, 274 Cal.App.2d at p. 5 [expert police sergeant's later entry to identify marijuana plants observed during earlier entry "did not amount to an entry by the police—Officer Kitchen was already there"]; accord, Duncan, supra, 42 Cal.3d at p. 99; cf. Bradley, supra, 132 Cal.App.3d at p. 744 [officers left before NTF agent arrived].) In this case, substantial evidence shows that CDC agents remained inside the residence from the initial entry until the warrant was obtained.
Appellant concedes the lawfulness of the police presence in the residence but contends the physical presence of police inside the residence did not allow reentry of his bedroom, which was outside the scope of the parole search condition. Even if the CDC agents' subsequent entry of appellant's bedroom may not be deemed a mere continuation of their initial entry for Fourth Amendment purposes, however, the subsequent NTF entry was lawful. (See People v. Zapien (1993) 4 Cal.4th 929, 976 [reviewing court is not bound by the trial court's reasoning and may affirm if the decision is correct on any legal theory].)
California decisions recognize an exception to the general rule precluding reentry without independent justification when the initial entry is terminated "because the officers were concerned for their safety . . . ." (Justin, supra, 140 Cal.App.3d at p. 736; Bradley, supra, 132 Cal.App.3d at p. 746; Boragno, supra, 232 Cal.App.3d at p. 386; see, e.g., People v. Superior Court (Quinn) (1978) 83 Cal.App.3d 609; People v. Hamilton (1980) 105 Cal.App.3d 113 (Hamilton).) In Quinn, the court upheld an officer's reentry of a residence, stating: "[The officer] obviously had the right to bag, tag and seize the evidence [during his initial entry]. That he did not do so no doubt can be ascribed to his primary concern with the apprehension of [the defendant] whom he believed still to be within the building and who may well by then have armed himself. Having arrested [the defendant] and removed him from the building, [the officer] did not trench upon any constitutionally protected interest by returning for the single purpose of retrieving the items of contraband he had observed moments before in the bedroom but had not then been in a position to seize." (Quinn, p. 617; accord, Hamilton, p. 118 [upholding a police reentry of a defendant's boat to obtain contraband an officer "had seen in plain sight before leaving the vessel to secure his own protection and effect [an] arrest . . ."].)
Similarly, other decisions uphold an officer's reentry to seize evidence observed during a lawful entry but not seized initially because the officer was performing a duty that took priority over the seizure of evidence. In People v. McDowell (1988) 46 Cal.3d 551, 564 (McDowell), an officer reentered a residence to retrieve evidence observed while pursuing a murder suspect. The court explained: "[The officer's] initial entry revealed evidence in plain view. His departure occurred before the items were seized because his first priority was the search for the suspect who was still at large. As he left, however, [he] secured the house by instructing another officer to assure that no one entered. 'Thus his physical withdrawal from the [house] did not terminate what was in legal effect an uninterrupted police presence in [the residence] . . . .' [Citation.] We do not believe [the officer] relinquished his right to seize this evidence by giving more immediate priority to defendant's arrest. We therefore conclude that [his] actions, under the particular circumstances of this case, were reasonable." (Id. at p. 564.)
In People v. Ngaue (1992) 8 Cal.App.4th 896, 901-902 (Ngaue),the court upheld a police reentry into a residence to retrieve a gun seen in plain view when arresting the occupant. The occupant promptly escaped from custody, and the arresting officer turned his attention to containing the area in order to apprehend him, but later called another officer and instructed him to return to the house to retrieve the gun. The Court of Appeal held that the reentry was constitutionally valid under McDowell because "there was no intent on the part of the officers to abandon the gun and retrieval of the gun took place without inexcusable delay." (Ngaue, p. 905.)
These decisions indicate that the CDC team was entitled to reenter appellant's bedroom to seize the items observed earlier. The officer safety concerns that gave rise to a protective sweep took priority over seizure of evidence observed in plain view during the course of that sweep. There is no indication of an intent to abandon the evidence in appellant's bedroom by leaving the room—the CDC team secured the residence to protect the evidence, and promptly brought in local narcotics officers to decide whether it should be seized immediately or after an additional search authorized by a warrant. Accordingly, we conclude that the CDC team was not required to halt the protective sweep or its other lawful duties to seize the evidence observed in appellant's bedroom and could reasonably reenter the room to seize the evidence after fully securing the residence.
Appellant concedes that if "circumstances [had] interrupted [the CDC agents], they could have returned to seize the contraband," but that "[t]here was no evidence . . . it was necessary for Pierini to leave the room in order to secure the rest of the house." We do not find this contention persuasive. The very nature of a protective sweep of a house precludes the seizure of evidence observed in various rooms before completion of the sweep; officers are not required to risk injury from a potential threat in another, unsecured room while they stop to gather evidence.
Under these circumstances, the entry of the NTF officers did not constitute an unreasonable intrusion upon appellant's expectation of privacy. (See Boragno, supra, 232 Cal.App.3d at p. 393 ["The constitutionality of a particular search is always a question of reasonableness and depends on a balance between the public's interest in the arrest or apprehension of criminals and the individual's right to personal security free from arbitrary interference by law officers"].) The facts of this case do not demonstrate that the officers had an "invidious purpose" or engaged in an improper " 'search-unlawfully-first-obtain-the-warrant-later procedure' " that undermines the purposes of the exclusionary rule. (See Justin, supra, 140 Cal.App.3d at pp. 740-741.) Instead, the record shows that this entry occurred in transitioning the case to local officers who would be handling the investigation based on the evidence observed earlier by the state CDC team, and who were in the best position to determine how the investigation should proceed. Although this determination arguably could have been made based on a description of what the CDC team originally observed, the question is one of reasonableness. As Agent Pierini was entitled to reenter appellant's bedroom to seize the evidence, we do not find it unreasonable for him to allow local investigating officers to view what he had lawfully seen earlier in deciding whether to seize this evidence immediately or to obtain a search warrant permitting a more thorough search. We note that the NTF officers remained in appellant's bedroom for less than five minutes and simply observed what Agent Pierini had seen in plain view during the protective sweep. (See Duncan, supra, 42 Cal.3d at p. 99 [concluding subsequent entry by another officer "was . . . a minimal additional intrusion on the defendant's privacy" because it "went no further than that of the first officer, and was meant only to interpret what the first officer had already seen"]; Justin, supra, 140 Cal.App.3d at p. 741 ["the observations of the detectives who made the subsequent entries were limited to the plain view observations of the officers who initially entered"].)
While observing what the CDC team initially found, Gomez and Guiney noticed in plain view a digital scale that Agent Pierini had not seen earlier, but this does not alter our conclusion that the entry itself was lawful. In any case, appellant does not challenge the inclusion of the NTF officer's observation of the digital scale in the search warrant affidavit on this ground.
Additionally, it does not appear that the NTF entry resulted in the seizure of any evidence that could not have been obtained based on the initial observations of the CDC team. Agent Pierini could have sought a warrant based on the information provided by his confidential source, his team's surveillance activities, and the contraband he observed in plain view in appellant's bedroom during the protective sweep. Thus, there existed alternative, independent information establishing probable cause for the warrant. Facts obtained during an unlawful search do not " 'become sacred and inaccessible. If knowledge of them is gained from an independent source[,] they may be proved like any others.' [Citation.]" (Murray v. United States (1988) 487 U.S. 533, 538; id. at p. 537 [" '[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position [than] they would have been in if no police error or misconduct had occurred' "]; accord, Weiss, supra, 20 Cal.4th at pp. 1077-1078.)
Therefore, we conclude that appellant's motion to suppress was properly denied.
V.
DISPOSITION
The judgment is affirmed.
RUVOLO, P. J. We concur: REARDON, J. SEPULVEDA, J.