Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of San Bernardino County, No. FSB805109, Raymond L. Haight III, Judge.
David Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
I
INTRODUCTION
On June 11, 2009, the San Bernardino County District Attorney filed an information charging defendant and appellant Earnest Means with possession of an assault weapon in violation of Penal Code section 12280, subdivision (b). The information also alleged that defendant committed the offense for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by members of the gang, within the meaning of section 186.22, subdivision (b)(1).
All statutory references are to the Penal Code unless otherwise specified.
On July 21, 2009, defendant pled guilty to possession of an assault weapon. That same day, the trial court dismissed the gang enhancement allegation, and defendant was released from custody on a Cruz waiver. On September 21, 2009, the trial court granted defendant probation for three years.
People v. Cruz (1988) 44 Cal.3d 1247.
On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence under section 1538.5. For the reasons set forth below, we shall affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
On December 5, 2008, around 5:18 p.m., San Bernardino Sheriff’s Deputy Dani Pineda, along with two other officers, went to an apartment complex in San Bernardino. After speaking to the apartment manger, the officers went to apartment 38 to serve an arrest warrant on the lessee, Amanda Carter.
When the officers arrived at the apartment, they knocked on the door; defendant opened the door. Deputy Pineda told defendant that they had an arrest warrant for Carter. Defendant stated that Carter was his sister and she lived at the apartment; she was not home. Defendant refused to allow officers inside and insisted on seeing a search warrant. Deputy Pineda advised defendant that he had an arrest warrant; therefore, he did not need a search warrant. While talking to defendant, Deputy Pineda and one of the other officers heard footsteps and a door inside the apartment slam shut. Deputy Pineda then demanded entry. Defendant complied.
Once inside the one-bedroom apartment, Deputy Pineda walked to the bedroom; the door was closed. Deputy Pineda opened the door and saw an open window leading to a walkway. While in the room, he saw in plain view, a rifle that looked like an SKS rifle inside the closet. Deputy Pineda knew that the rifle was illegal if it had a detachable magazine. From his location, however, the deputy could not tell.
Upon seeing the rifle, Deputy Pineda asked defendant if he could search the apartment; defendant consented. Deputy Pineda then picked up the rifle and determined that it was illegal.
III
ANALYSIS
Defendant’s sole contention on appeal is that his conviction must be reversed “because the trial court erroneously failed to suppress evidence discovered as a result of Fourth Amendment violations.” Specifically, defendant contends that (1) Deputy Pineda’s entry into the apartment was unlawful; (2) defendant was unlawfully detained; (3) defendant’s consent to search the apartment was involuntary; and (4) defendant’s consent did not extend to the examination of the rifle.
A. Background
On June 16, 2009, defendant filed a motion to suppress evidence under section 1538.5. In the motion, defendant argued that (1) the officers did not have a right to search his apartment without a warrant; (2) defendant’s consent was invalid; and (3) the arrest warrant for Carter did not allow entry into the apartment because the officers did not have probable cause to believe that Carter was at the residence. In response, the prosecution argued that (1) the officers were permitted to enter the residence because they had reasonable grounds to believe that Carter was inside the residence; and (2) the seizure of defendant’s rifle was proper because it was observed in plain view during the service of the arrest warrant.
At the hearing on defendant’s motion to suppress, Deputy Pineda testified, as summarized in the factual background.
After the deputy’s testimony, defendant argued that the officers did not have reasonable grounds to believe that Carter was in the apartment. Defendant argued that the fact Carter leased the apartment, and the officers heard footsteps and a door slam inside, were insufficient to form reasonable belief. Defendant also argued that he did not voluntarily allow the officers into the apartment. Rather, the officers demanded entry and defendant complied.
In response, the prosecutor argued that the officers had reasonable grounds to enter the apartment because they verified that Carter was on the lease and the officers heard loud noises coming from inside the apartment. Once the officers entered, Deputy Pineda saw the rifle in plain view while searching for Carter. The prosecutor argued that the rifle was clearly a potentially prohibited firearm. Therefore, the deputy “had the ability to take the weapon and seize it, ” without having to ask for defendant’s consent to search.
After argument, the court took the matter under submission. On July 21, 2009, after hearing the parties’ supplemental arguments, the trial court denied defendant’s motion to suppress. The court found the facts of the case established that the officers were in “complete compliance of the law” because they had probable cause to enter the apartment, and the deputy properly searched and seized the rifle.
B. Standard of Review
In reviewing the trial court’s denial of defendant’s motion to suppress, “[w]e defer to the trial court’s factual findings, express or implied, where supported by substantial evidence.” (People v. Glaser (1995) 11 Cal.4th 354, 362.) “‘[A]ll factual conflicts must be resolved in the manner most favorable to the [superior] court’s disposition on the [suppression] motion.’ [Citation.]” (People v. Woods (1999) 21 Cal.4th 668, 673-674.) “In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (Glaser, at p. 362.)
C. Entry Into Apartment
Under the Fourth Amendment, “entry into a private dwelling to conduct a search or effect an arrest is unreasonable without a warrant.” (Steagald v. United States (1981) 451 U.S. 204, 214, fn. 7.) “For 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.” (Payton v. New York (1980) 445 U.S. 573, 602-603; see also Steagald, at p. 214, fn. 7.) This holds whether the arrest warrant is for a misdemeanor or a felony violation. (People v. LeBlanc (1997) 60 Cal.App.4th 157, 164.)
Nonetheless, even when officers have an arrest warrant, they still must comply with section 844 prior to entering a residence. Section 844 requires an officer, prior to entering a residence to serve an arrest warrant, to knock and announce the officer’s presence and demand entry. Section 844 also requires that officers have reasonable grounds to believe a person is inside the house before making entry. (§ 844; People v. Jacobs (1987) 43 Cal.3d 472, 478 (Jacobs).) “Reasonable grounds to believe the person named in the warrant was in the house means such a state of fact as would lead a man of ordinary caution or prudence to believe, and to conscientiously entertain a strong suspicion the subject of the warrant was in the house.” (Jacobs, at p. 479.) Section 844 requires more than a reasonable belief that the subject of the arrest warrant owns or leases the dwelling; there must be a reasonable belief that the subject is inside at the time of entry. (Jacobs, at p. 478.) Once officers have reasonable grounds to believe the subject is inside a dwelling, they may force entry to search for the subject. (People v. LeBlanc, supra, 60 Cal.App.4th at p. 164.)
In Sanderson v. Superior Court (1980) 105 Cal.App.3d 264, 267 (Sanderson), officers had information that two defendants with arrest warrants were located at a particular residence. The evidence did not establish the exact time the subjects were last seen at the residence, but it was sometime within 10 days of the service of the search warrant. (Ibid.) The officers went to the residence, knocked on the door and announced their presence. After the officers knocked, someone peered out the window and said, “‘Cops.’” (Ibid.) The officers then heard the sound of running feet. (Ibid.) After a minute, a woman answered the door. The officers advised the woman of their reason for being at the location and asked for permission to enter the residence; she refused and demanded a search warrant. (Ibid.) Notwithstanding, the officers entered the residence with their guns drawn and found the defendants hiding in the residence. (Ibid.) While conducting a pat-down search, an officer located a handgun on one of them. (Ibid.) The court held, based on the circumstances of the case, law enforcement had reasonable grounds to enter the residence and look for suspects. (Id. at pp. 270-271.)
The facts in this case are similar to the facts in Sanderson, supra, 105 Cal.App.3d 264. Here, the officers had an arrest warrant for Carter. Prior to arriving at the apartment to serve the warrant, the officers confirmed with the building manager that Carter was the sole lessee of the apartment. When the officers arrived at the apartment, they knocked and announced their presence, indicating they had an arrest warrant for Carter. Defendant answered the door; he indicated that Carter was his sister and she lived in the apartment but was not home. Defendant refused to allow the officers into the apartment and demanded to see a search warrant. At that time, the deputies heard “[f]ootsteps, basically just movement coming from the [rear of the] apartment and the loud bang, possibly a sound of a door slamming from the inside [of] the apartment.” After hearing these sounds, the officers demanded entry and entered the apartment. Based on these facts-Carter was the sole lessee on the apartment, and although defendant stated that she was not there, the officers heard sounds of running feet and a loud bang-the officers had reasonable grounds to believe that Carter was in the apartment. The officers, therefore, lawfully entered the apartment.
Notwithstanding the similar facts, defendant attempts to argue that Sanderson, supra, 105 Cal.App.3d 264, is distinguishable because Pineda’s “observations were not indicative of someone fleeing, but were normal sounds one would expect to hear coming from inside an apartment at any given time.” The facts, however, clearly indicated that some other person may have been in the apartment. Because Carter was the sole lessee of the apartment, the officers had reasonable grounds to enter to investigate whether Carter was the person making the noise.
Moreover, defendant’s reliance on Jacobs, supra, 43 Cal.3d 472 is misplaced. In Jacobs, officers arrived at the defendant’s residence about 3:20 p.m. to execute an arrest warrant. They arrived in plain clothes and an unmarked car. (Id. at pp. 476, 479.) The officers believed that the defendant would be home because they had information he was “not employed at a daytime job.” (Id. at p. 478.) When they arrived, the defendant’s 11-year-old stepdaughter opened the door; the officers went into the house. (Id. at p. 476.) The stepdaughter told the officers that the defendant was not home and would be home in about one hour. Based on those facts, the defendant argued that the officers unlawfully entered his home because they did not have reasonable grounds to believe he was inside the home. (Ibid.) The court agreed with the defendant, it stated: “If the officers had a hunch or a hope defendant would be home, the evidence indicates it was dispelled before they entered the house. They arrived in plain clothes and an unmarked car, and there is no suggestion defendant perceived their arrival and fled or hid. Defendant’s vehicles were nowhere in sight. When they asked [the stepdaughter] if defendant was home, she told them he would be back in an hour. The evidence does not suggest that [the stepdaughter’s] response or behavior further aroused the officers’ suspicions.” (Id. at p. 479.)
This case is distinguishable. As noted above, the officers had reasonable grounds to believe Carter was home. In addition to the facts noted above, we add that when the officers arrived at the apartment, they were in marked uniforms. Furthermore, contrary to the facts in Jacobs, supra, 43 Cal.3d 472, here, the officers heard footsteps and a loud bang coming from inside the house. The officers had reasonable grounds to believe that Carter was responsible for making these sounds.
Defendant also relies on an unpublished case by the Tenth Circuit Court of Appeal in United States v. Kratzer (10th Cir. 2001) 10 Fed.Appx. 784. Tenth Circuit Rule 32.1 states that “[t]he citation of unpublished decisions is permitted to the full extent of the authority found in [Federal Rules of Appellate Procedure] 32.1. Unpublished decisions are not precedential, but may be cited for their persuasive value.” (U.S. Cir. Ct. Rules (10th Cir.), rule 32.1, italics added.) Federal Rules of Appellate Procedure 32.1 provides that unpublished opinions may be cited if “issued on or after January 1, 2007.” Therefore, because the Kratzer opinion was issued in 2001, citing the case is not permitted under Federal Rules of Appellate Procedure, rule 32.1. Even if citable, it only has persuasive value. Additionally, we note that in Kratzer, supra, 10 Fed.Appx. at page 785, fn. *, the Tenth Circuit specifically stated that “[t]his order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The Court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.” Based on the above, we need not discuss the merits of Kratzer and hold that the officers’ entry into Carter’s apartment was lawful.
D. Search of Apartment After Lawful Entry
Once lawfully inside a dwelling while serving an arrest warrant, law enforcement may search anywhere in the residence the arrestee may logically be found and may seize evidence or contraband in plain view without a search warrant. (People v. LeBlanc, supra, 60 Cal.App.4th at p. 164; Horton v. California (1990) 496 U.S. 128, 134-136.)
In this case, the officers-as discussed above-lawfully entered the apartment for the purpose of serving an arrest warrant on Carter. Once inside the apartment, they were permitted to look for Carter anywhere in the apartment she reasonably could have been located-such as the bedroom and in the walk-in closet. Here, Deputy Pineda went to look for Carter. He eventually made his way to the bedroom; the apartment was a one-bedroom residence. After opening the door to the bedroom, the officer saw a walk-in closet. He “went inside the closet to check and see if somebody was there.” There, he saw the rifle in plain view.
E. Defendant’s Detention
After discovering the rifle, the officers detained defendant. Defendant claims that his detention was unlawful.
The law recognizes three levels of police contacts: consensual encounters, detentions, and arrests or full seizures. (1) A consensual encounter-which occurs when the interaction is voluntary, and there is no assertion of authority by the police-requires no objective justification; (2) A detention-which occurs when an officer asserts his authority in such a manner that a reasonable person would not believe he was free to leave or otherwise not cooperate but is strictly limited in duration, scope and purpose-requires an articulable suspicion the individual has committed or is about to commit a crime; and (3) an arrest or full seizure of the person requires probable cause. (People v. Perez (1989) 211 Cal.App.3d 1492, 1495; People v. Brueckner (1990) 223 Cal.App.3d 1500, 1505.)
Defendant claims that the “[o]fficers needed, but did not have, probable cause to detain [defendant].” The correct standard for a detention, however, is whether the officers had a reasonable suspicion to detain defendant. (United States v. Sokolow (1989) 490 U.S. 1, 7-8.) A reasonable suspicion of involvement in criminal activity will justify a temporary stop and detention even though the circumstances are also consistent with lawful activity. Typically, the purpose of the detention is to resolve the ambiguity. (People v. Souza (1994) 9 Cal.4th 224, 233; In re Tony C. (1978) 21 Cal.3d 888, 893-894, superseded by statute on another ground as stated in People v. Lloyd (1992)4 Cal.App.4th 724, 733; United States v. Arvizu (2002) 534 U.S. 266, 274-276; Sokolow, at pp. 7-8.)
“It is settled that circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation. [Citations.]” (In re Tony C., supra, 21 Cal.3d at p. 892, citing Terry v. Ohio (1968) 392 U.S. 1, 22.) However, the police are not free to detain citizens at will. “In order to justify an investigative stop or detention, ‘the circumstances known or apparent to the officer must include specific or articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience... to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch, is unlawful, even though the officer may be acting in complete good faith.’ [Citation.]” (In re James D. (1987) 43 Cal.3d 903, 919-920, quoting In re Tony C., at p. 893; see also People v. Renteria (1992) 2 Cal.App.4th 440, 443; People v. Souza, supra, 9 Cal.4th at p. 231 [“detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity”].)
Here, the officers’ actions were reasonable and the totality of the circumstances warranted the officers’ detention of defendant. The officers knew that Carter was the sole lessee of the apartment and she had an outstanding warrant for possession of more than 28.5 grams of marijuana. Defendant confirmed that Carter lived in the apartment; defendant also stated that he had been living in the apartment for six months. During this conversation, the officers heard noises from inside the apartment. Reasonably thinking that Carter was inside, the officers entered and searched for Carter. During the search, Deputy Pineda found an assault rifle in the bedroom closet. The officer noted that if this assault rifle had a detachable magazine, “it would be prohibited contraband.” The way the rifle was positioned, however, Deputy Pineda was not sure whether the rifle had a detachable magazine. The officer, therefore, decided that defendant should be detained. In sum, Deputy Pineda knew that Carter was wanted for possession of drugs, defendant lived at the apartment with Carter, defendant did not want the officers to enter, and there was possibly an illegal assault rifle inside the apartment. Based on these facts, Deputy Pineda had articulable facts that criminal activity was afoot and lawfully detained defendant.
Notwithstanding the above, defendant claims that the detention was unlawful. Defendant claims that “Carter’s being wanted for failing to appear with regard to a charge of possession of less than an ounce of marijuana is irrelevant, since there was no evidence she lived or had been at the apartment.” The officers, however, verified with the apartment manager that Carter was the sole lessee on the apartment and defendant admitted to the officers that Carter resided at the apartment. Although defendant fervently argues why there was no reason for detaining defendant, the evidence, as summarized above, points to the contrary.
F. Defendant’s Consent to Search
Defendant argues that he did not voluntarily consent to the search of the apartment.
“[A] search authorized by consent is wholly valid, ” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222) because consent is one of the “specifically established exceptions to the requirements of both a warrant and probable cause.... [Citations.]” (id. at p. 219). To be voluntary, consent cannot be “coerced, by explicit or implicit means, by implied threat or covert force.” (Id. at p. 228.) The prosecution bears “‘the burden of proving that the consent was, in fact, freely and voluntarily given.’ [Citations.]” (Id. at p. 222.) “While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” (Id. at p. 227.) Nor is it always necessary for police officers to inform citizens of their right to refuse to consent. Whether consent was voluntary “is a question of fact to be determined from the totality of all the circumstances.” (Ibid.)
In this case, when Deputy Pineda asked defendant for consent to search the apartment, defendant could have refused-as he readily showed that he could when he initially refused to allow the officers into the apartment. Based on the nature of defendant’s detention, defendant’s consent was not coerced. The duration of defendant’s detention was brief. The detention was not overly intrusive. There was no evidence that the officers asserted any unnecessary coercion or force upon defendant to obtain his consent. Moreover, there was no evidence that the officers drew their weapons or that they used deceptive practices to obtain defendant’s consent. Although defendant was handcuffed, this fact is not dispositive. (Schneckloth v. Bustamonte, supra, 412 U.S. at pp. 227-234.)
Based on the totality of the circumstances, we agree with the trial court that defendant’s consent to search was voluntary.
G. Search of Rifle
Defendant asserts that even if defendant’s consent was voluntary, “it cannot reasonably be interpreted to have extended to the examination of the SKS rifle.”
The United States Supreme Court has explained that the scope of consent is measured by an objective reasonableness requirement. Whether a search is reasonable is a factual determination under the totality of the circumstances. “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?... [¶] The scope of a search is generally defined by its expressed object. [Citation.]” (Florida v. Jimeno (1991) 500 U.S. 248, 251; see also People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.)
In this case, after Deputy Pineda saw the rifle, he asked defendant if the officer could search the apartment; defendant consented. Because the apartment was only a small one-bedroom residence and the rifle was in plain view in the walk-in closet, it is reasonable to infer that defendant knew that Deputy Pineda saw the rifle. Based on these facts, it was reasonable to Deputy Pineda to believe that the consent to search extended to the rifle. Therefore, we hold that the consent to search extended to the rifle.
Based on the foregoing, we hold that the trial court properly denied defendant’s motion to suppress evidence.
IV
DISPOSITION
The judgment is affirmed.
We concur: King J., Miller J.