Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA 285704, Carol H. Rehm and George G. Lomeli, Judges.
Law Offices of Vicken H. Hagopian and Vicken H. Hagopian for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Hugo Velasquez appeals from the judgment entered after he pleaded no contest to one count of possessing more than ten kilograms of methamphetamine for sale in violation of Health and Safety Code sections 11378 and 11370.4, subdivision (a). Velasquez contends the trial court erred by denying his motion, pursuant to Penal Code section 1538.5, to suppress evidence obtained during searches of his home and garage. Velasquez maintains that no exigent circumstances or other legally valid reasons justified the warrantless searches. We disagree and affirm.
All undesignated statutory references are to the Health & Safety Code.
BACKGROUND
At about 8:15 p.m. on Saturday, May 14, 2005, a neighbor of Velasquez called 911 to report that her husband had just seen a man with a large, heavy black canvas duffel bag run across Velasquez’ yard, drop a pair of bolt cutters, throw the duffel bag over a wall to an alley behind Velasquez’ house, jump over the wall, then run down the alley with the duffel bag. The man did not respond when the neighbor called out to him. Four Los Angeles police officers responding to the call arrived at about 8:20 p.m. One officer, standing on the neighbors’ property, saw the bolt cutters lying on the ground near a metal gate at the back of Velasquez’ property. He also saw a wooden pallet leaning against the wall that the suspect had jumped over. A knock on the front door and announcement of the police presence brought no response.
The four police officers then decided to “access the backyard” to “look for any kind of forced entry into the house or anything in that location that would indicate any kind of a crime or any kind of injured victim or suspects that are still at the location.” One officer stood on his car to climb over the wall and jump down into Velasquez’ backyard. By the metal gate, he found a padlock that had been cut lying on the ground. He opened the gate to let the other officers into the backyard, then went to investigate a detached garage with a walk-in side door that was partly ajar. The officer opened the door completely and entered the garage with his flashlight. He found a cupboard with the doors open and bags of a white, crystalline substance that resembled methamphetamine on a top shelf, plus multiple plastic boxes wrapped in brown tape on the floor and missing tiles in the ceiling. The officer invited the other officers into the garage. When the officer looked above the ceiling, he saw more plastic bags of the crystalline substance, more plastic boxes wrapped in brown tape, and United States currency wrapped in saran wrap and stacked like bricks.
The officers contacted their supervisor, then examined the rear of the house, found no sign of forced entry, and secured the backyard and garage. At about 10:55 p.m., a police sergeant and detective arrived. After briefing, the detective inspected the garage, then authorized a “quick walkthrough” of the house to check whether there were individuals needing medical attention after a possible “narcotics-related rip-off.” The police broke open a security door at the back of the house, then quickly inspected the interior of the house for possible victims but found none. Instead, in plain view, they found a gun and a utility bill in Velasquez’ name. On May 17, 2005, the detective obtained a search warrant for Velasquez’ home and conducted a more thorough search.
On the basis of the warrantless and warranted searches in May 2005, on the afternoon of June 21, 2005, police covertly followed Velasquez as he left an apartment building and drove to another location and picked up a black plastic bag. He then drove evasively while talking on a cell phone before meeting two other individuals in a car, who drove closely behind Velasquez to another location. Both drivers stopped, and the driver of the second car got into Velasquez’ car while the passenger remained in the second car as a lookout. When Velasquez handed something to the second driver (now Velasquez’ passenger), the police drove up in patrol cars and ordered the two men out of the car. They refused to exit the car, and Velasquez instead drove away rapidly, chased by patrol cars. During the chase, Velasquez’ passenger threw a black plastic bag out of the car before police caught the two men. Police recovered the bag and found it contained two pounds of methamphetamine. As Velasquez’ passenger exited the car, he dropped a cell phone that showed that he had made calls to Velasquez’ cell phone minutes before the meeting that police interrupted. The police arrested all three men.
On December 16, 2005, the court held a preliminary hearing concurrently with a hearing of Velasquez’ motion pursuant to section 1538.5 to suppress the evidence from the May 14, 2005 warrantless searches. On direct examination, the police officer who climbed over the wall to Velasquez’ backyard and first entered the garage testified that the lack of any response to his knock on the front door led him and his partner to believe that “if there was someone at home when this possible crime occurred that they may be injured or hurt.” Asked why he saw a need to jump over the wall, the officer stated, “At this time we believed that we had a possible burglary that had occurred and we believed that there may be a victim or possible suspects still inside the location.” The officer further explained, “Over my five and a half years, it’s common that someone who uses bolt cutters to cut a lock and doesn’t respond to someone calling them and leaving an alley in an abrupt manner is involved in some kind of a crime.” Addressing why he opened the partly open side door to the garage and entered through it with his flashlight on, and what he was looking for, the officer answered that he was looking for “[p]ossible suspects. Maybe a victim, who confronted a burglar in the garage, that may have been injured.” Regarding his reaction to the missing ceiling tiles in the garage, the officer testified, “suspects commonly hide in attics or ceilings or any high object, anything where they think that we may not search, so I immediately thought a suspect may have put himself in a position up above the recessed ceiling.”
On cross-examination, the same officer acknowledged that when he arrived at the alley behind Velasquez’ house, he had no information about any burglary suspect other than the one who jumped over the wall, and he had no information about any injured or incapacitated victims in the house or the garage. Neither he nor the neighbor had seen or heard anything to indicate the presence of an injured person—not blood, evidence of violence, moans, cries for help, or any other similar sounds. Nor had anyone heard sounds of possible destruction of evidence, as from a flushing toilet. The neighbor had reported that a family of three lived at the home, however. On redirect examination, asked what reasons gave him concern about possible victims, the officer answered, “The fact that the witness saw someone on the property and was concerned enough for him to call the police, the bolt cutters, the cut lock, the ajar door in the back and the fact that no one was answering.” On recross-examination, the officer noted that he saw the bolt cutters, but did not remember whether he saw the cut lock, before entering the backyard, and that he did not see that the garage side door was ajar until after he entered the backyard. Defense counsel asked whether there was any “particularized fact, specific fact” indicating that anybody was incapacitated or injured; the officer responded, “Other than my training and experience, no” and acknowledged that his concern about potential victims on the premises arose from speculation on his part. Asked whether there were any specific facts at the scene to indicate that there were or might be additional suspects still on the property, the officer replied, “No, not necessarily.” The officer’s partner, on cross-examination, similarly admitted that his concern about possible additional suspects or injured persons was not based on any specific fact or information, but was “just based on [his] prior experience” of crime scenes.
At the conclusion of testimony, defense counsel argued that no specific, articulable facts showed exigent circumstances to justify the warrantless search that led to the later searches and pursuit of Velasquez; the prosecutor contended exigent circumstances existed and the officers had a duty to investigate a crime that had just occurred or might still be in progress. The court ruled that the initial entry and search came under the exigent circumstances exception to the general prohibition of warrantless searches. The court credited the officer’s concerns, when he scaled the wall and jumped into the backyard, that he and his fellow officers might have come upon the scene of a home invasion or other crime in progress with additional suspects and possibly injured or incapacitated victims, especially in light of the neighbor’s statement that three people normally resided in the house. The court reasoned, “I think that the officers would have been irresponsible not to at least try to determine whether or not there were alleged victims of the burglary and/or home invasion or if suspects were on the property at the time since it happened within minutes . . . [from] the man leaving the scene . . . to the officers responding, looking for the possible victims and/or suspects, so I find that exigent circumstances still existed.” The court, however, ruled that exigent circumstances did not exist three hours later when the police detective authorized a walk-through search of the house, and the court suppressed evidence from that warrantless search. The court, however, found that even without the suppressed evidence, probable cause supported the search warrant and search of the house on May 17, 2005.
On February 10, 2006, the Los Angeles County District Attorney filed a 3-count information alleging that on June 21, 2005, Velasquez transported a controlled substance, methamphetamine, in violation of Health & Safety Code section 11379, subdivision (a) (count 1), and that both on that date and on May 14, 2005, he possessed a controlled substance, methamphetamine, in violation of Health & Safety Code section 11378 (counts 2 and 3). As to count 3, the information further alleged that Velasquez had possessed more than 20 kilograms of methamphetamine within the meaning of Health and Safety Code section 11370.4, subdivision (a)(4). Velasquez pleaded not guilty to all counts.
In March 2006, Velasquez renewed his motion to suppress evidence and filed a motion to dismiss, repeating the same arguments as in the earlier motion to suppress and contending that the search pursuant to a warrant on May 17, 2005, and the pursuit and capture of Velasquez on June 21, 2005, were both “fruit of the poisonous tree” based upon the warrantless and unjustified searches on May 14, 2005. The court denied both motions.
On November 30, 2006, pursuant to a plea agreement, Velasquez pleaded no contest to count 3, possession of methamphetamine for sale, with the information amended to allege possession of more than 10, rather than 20, kilograms of methamphetamine under Health & Safety Code section 11370.4, subdivision (a)(3). Velasquez waived arraignment, and the prosecutor took his plea and advised him of the trial rights he was relinquishing. The court sentenced Velasquez to 12 years in prison, dismissed counts 1 and 2, and imposed various mandated fines, fees, registration requirements, and limitations on use or ownership of weapons. The court awarded him 792 days of custody credit. Velasquez timely appealed.
DISCUSSION
I. The Warrantless Search of the Garage
Velasquez contends the police officers who responded to the neighbors’ 911 call had no specific, articulable facts showing exigent circumstances to justify their warrantless search of his garage, and that accordingly, the search was unreasonable and unconstitutional under the Fourth Amendment. We disagree.
The federal Constitution’s Fourth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits unreasonable searches and seizures. (People v. Celis (2004) 33 Cal.4th 667, 673, 676.) A warrantless search of a person’s home is presumptively unreasonable, but this presumption can be overcome by a showing of one of the specifically established and well-delineated exceptions to the warrant requirement, such as to prevent imminent destruction of evidence, imminent injury to persons or property, or a suspect’s escape. (Id. at p. 676.) To justify a warrantless entry of a home based upon such exigent circumstances requires probable cause to believe that one of these exigencies exists. (Ibid.) Specific and articulable facts, together with rational inferences drawn from them, must support the warrantless entry. (People v. Gentry (1992) 7 Cal.App.4th 1255, 1262.) “‘When reviewing a ruling on an unsuccessful motion to exclude evidence, we defer to the trial court’s factual findings, upholding them if they are supported by substantial evidence, but we then independently review the court’s determination that the search did not violate the Fourth Amendment.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 465.) “Thus the exigent circumstances test involves a two-step inquiry: first, factual questions as to what the officer knew or believed and what action he took in response; second, a legal question whether that action was reasonable under the circumstances. [Citation.]” (People v. Duncan (1986) 42 Cal.3d 91, 97.)
Our Supreme Court has observed that “[o]f necessity, officers may enter premises to resolve the situation and take further action if they discover a burglary has occurred or their assistance is otherwise required. [Citations.]” (People v. Ray (1999) 21 Cal.4th 464, 473; see also id. at p. 481 (conc. opn. of George, C.J.) [“[T]he officers were justified in entering the residence without a warrant, because they reasonably believed that a burglary was in progress or that a burglary had occurred and there might be occupants in need of assistance inside the residence.”].) Here, the police heard the neighbors’ account of a man with a heavy duffel bag running across Velasquez’ backyard, dropping bolt cutters, jumping over the wall, and running down the alley. One police officer saw the pallet leaning against the wall and the bolt cutters lying in Velasquez’ yard. These specific, articulable facts supported a rational inference that a burglary had occurred. The officers also had learned from the neighbors that three people normally resided in the house. Thus, the officers were justified in entering Velasquez’ backyard and garage to check for additional suspects or victims in need of help.
Two authorities cited by Velasquez, Horack v. Superior Court (1970) 3 Cal.3d 720 and People v. Gentry, supra, 12 Cal.App.4th 1255, are inapposite because unlike this case, they involved situations in which there was no substantial evidence that a burglary had occurred. (See Horack v. Superior Court, supra, at pp. 723-728 [vague and unconfirmed report of two “hippie-type” individuals with sleeping bags entering a house thought to be vacant, followed by police discovery of an expensive stereo system playing loud in a locked house showing no signs of forced entry, held not to constitute substantial evidence of burglary in progress or having occurred]; People v. Gentry, supra, at pp. 1258-1263 [case involving report of a man selling drugs from his home with no implication of burglary].)
Velasquez, however, contends the exigent circumstances exception for preventing a suspect’s escape only applies to a burglary that is still in progress, but that in this case, all the facts known to police indicated that the burglary was completed by the time police arrived. Velasquez reasons that because the only burglary suspect seen at the site escaped five minutes before the police arrived, the police had no probable cause to believe that a burglary still was occurring or that additional suspects were on the premises. The departure of one suspect, however, does not rule out a rational inference that additional suspects still could be present, or that the burglary still could be in progress—particularly given the recently arrived officers’ necessarily uncertain state of knowledge.
Velasquez criticizes the Attorney General’s reliance on People v. Duncan, supra, 42 Cal.3d 91, and maintains that it supports his position that the exigent circumstances exception only applies to a burglary if that burglary is still in progress. In Duncan, the Attorney General contended that a warrantless search “was justified by the exigent circumstance of a burglary in progress.” (Id. at p. 98.) The defendants conceded that police officers may enter a dwelling without a warrant if they reasonably believe a burglary “is being committed therein” but maintained that the facts known to the officer in that case at the time he made his warrantless entry did not support a reasonable belief that the crime was still in progress. (Ibid.) The police officer had responded promptly to a report of a burglary that was in progress or had just occurred. (Id. at p. 95.) “[T]estimony conflicted as to whether [a] neighbor told him he had seen two teenagers flee with a television set.” (Ibid.) The officer went around the house, found the doors locked, but a back window open, underneath which was a box on the ground containing a television set and other items. (Ibid.) The officer climbed in the window and discovered a methamphetamine laboratory in operation. (Id. at p. 96.) At trial, the officer testified that what he found at the scene—particularly the box of loot—led him to infer that the suspects were still inside gathering more loot. (Id. at p. 98.) The trial court accepted the officer’s statement of his reasonable belief, and our Supreme Court held that substantial evidence supported the trial court’s ruling. (Id. at p. 98.) Thus, in Duncan, the Supreme Court held that the facts in that case justified a warrantless entry in pursuit of suspects based upon a reasonable suspicion that a burglary still was in progress. Notably, it did not define what alternate conditions would have made the search unreasonable, and it did not hold that the exigent circumstances exception only applies to a burglary if the burglary is still in progress.
In People v. Ray, supra, 21 Cal.4th 464, however, another case that both parties cite, both the plurality and concurring opinions did not require that a burglary be in progress to justify a warrantless entry. In People v. Ray, two officers responded to a report that the front door of a residence had been open all day, the interior was a shambles, and no one seemed to be home. (Id. at p. 468.) The officers found the premises as described, knocked and announced several times that they were police, then finally made a warrantless entry to check for injured or incapacitated victims “and to determine whether a burglary had been committed or was in progress.” (Ibid.) Inside, they found money and cocaine in plain view. (Ibid.) The trial court granted the defendant’s suppression motion, but the Court of Appeal reversed the trial court, and the Supreme Court affirmed that decision. (Id. at pp. 469, 480.)
In discussing warrantless entries in the context of burglary, both the plurality and concurring opinions in People v. Ray, supra, 21 Cal.4th at pp. 473, 481, generally referred to situations in which a burglary “has” or “had” occurred. The concurring opinion held that the officers’ warrantless search of the premises was justified under the exigent circumstances exception because the officers, when they arrived, were almost certain the premises “had been burglarized.” (Id. at p. 481, italics added.) The plurality, holding that the warrantless entry was justified under the related community caretaker exception, approvingly quoted a treatise stating that police may make a warrantless entry “‘where the police reasonably believe that the premises have recently been or are being burglarized.’” (Id. at p. 473, quoting 3 LaFave, Search and Seizure (3d ed. 1996) §6.6(b), p. 403, fns. omitted, italics added.) The Court’s holding that the warrantless search exception applies to premises that recently have been burglarized is in keeping with other jurisdictions’ jurisprudence. (See, e.g., Bryant v. State (Ind. 1995) 660 N.E.2d 290, 301; State v. Metz (Minn.App. 1988) 422 N.W.2d 754, 757; People v. Williams (Mich.App. 1987) 408 N.W.2d 415, 418; United States v. Dart (4th Cir. 1984) 747 F.2d 263, 267.) In this case, the police arrived five minutes after the departure of the man with the duffel bag. Accordingly, even if we were to assume that the facts indicated that the burglary probably was completed when the police arrived, substantial evidence nevertheless showed that the premises recently had been burglarized, justifying a warrantless search.
Notably, the concurrence gave no time requirement regarding when the burglary occurred, or how soon before officers arrived.
The distinction between exigent circumstances and the community caretaker exception need not concern us here, because both the plurality and the concurrence in People v. Ray, supra, 21 Cal.4th at pp. 473, 480-481, held that a warrantless search is justified where premises are being or recently have been burglarized.
Velasquez also maintains that the police had no probable cause for concern about potential victims of the apparent burglary because no one answered the officers’ calls and knocks at the front door, and no sounds or other signs of activity came from the house. When a burglary occurs at a property known to be normally inhabited, however, as in this case, there is substantial evidence to support a rational inference that victims might be in need of help. (See People v. Ray, supra, 21 Cal.4th at pp. 473-474, 481.) Unconscious or bound-and-gagged victims would be incapable of making sounds or movements or of turning on lights. Here, the police entered the garage because they found the door ajar at a location that apparently was being or recently had been burglarized. Such circumstances raise a reasonable concern that injured or incapacitated victims may be found. (Ibid.)
II. Evidence Recovered on May 17 and June 21, 2005
The trial court ruled that the warrantless search of the garage was reasonable and provided probable cause for the search warrant executed on May 17, 2005. Velasquez does not contend that the garage search did not supply a sufficient basis for the search warrant, but only that the search of the garage was unreasonable and that the evidence recovered from the search pursuant to a warrant is therefore inadmissible. Similarly, Velasquez’ argument that the evidence recovered on June 21, 2005, when he was arrested, is also fruit of the poison tree depends on his contention that the warrantless garage search was unreasonable. He does not argue that evidence recovered either on May 17 or on June 21, 2005, was tainted by the initial warrantless search of his home even if the warrantless search of the garage was justified. Because we hold that the warrantless garage search was reasonable under the circumstances, any evidence later recovered based upon that search, including that obtained both on May 17 and June 21, 2005, was properly admitted.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P. J., VOGEL, J.