Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. SF014028A. Stephen G. Gildner and Kenneth C. Twisselman II, Judges.
Judge Gildner denied appellant’s disclosure motion heard on March 27, 2008; Judge Twisselman presided over the trial and sentencing.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Appellant Jimmy Douglas Wagoner challenges his convictions for possession of heroin in jail and possession of heroin. He contends (1) the trial court erred in denying his request to disclose the identity of a confidential informant; (2) the evidence was insufficient to prove that he constructively possessed the heroin found in his cell; (3) the possession for heroin conviction must be reversed as it is a lesser included offense of the other conviction; and (4) the security fee imposed should be reduced. We will reverse the possession of heroin conviction, reduce the security fee, and remand with directions to conduct an in camera hearing. In all other respects, we will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On June 20, 2007, Wagoner entered the Lerdo pretrial jail facility and was assigned to a cell in A-pod. Each cell has two inmates. The evening of June 25 Wagoner was transferred to a cell in D-pod.
On June 26 Deputy Sheriff Dustin Alkire was working in the A-pod housing unit and investigating an incident that had occurred. An inmate with whom Alkire had spoken told him that Wagoner had heroin. The informant knew Wagoner was in D-pod. The informant indicated Wagoner had been in A-pod and took the heroin with him to D-pod. Alkire spoke with other officers who indicated the informant was reliable.
Alkire checked the computer and learned that Wagoner was in fact in D-pod, in unit 1, cell 109. Alkire notified Sergeant James Ashley of the information and Ashley ordered that Wagoner’s cell be searched. Ashley, Alkire, and Deputy Ruben Mendez went to Wagoner’s cell. The unit was on lockdown and the cell door was closed when they arrived, although Wagoner’s cell had been open on a rolling lockdown for four hours earlier that day.
Ashley and Mendez entered the cell; Alkire remained outside the cell. Wagoner’s cellmate, Sergio Ramirez, was instructed to go to the shower and lock down in the shower room while a cell search was conducted. Ramirez quickly complied. Ramirez was not searched.
Wagoner was nervous. Ashley asked Wagoner to remove his pants and socks. Wagoner removed his pants and socks, but then reached his hand inside a sock. Ashley was not sure what Wagoner was doing, so he grabbed Wagoner’s hand. Wagoner jerked away. Wagoner was then placed in a control hold, handcuffed, and placed face down on the lower bunk. Leaving Alkire to search the cell, Ashley and Mendez escorted Wagoner to an interview room. Alkire found a black tarry substance in plastic wrap underneath Wagoner’s mattress. It was proven to be a usable amount of heroin.
Wagoner was charged with possessing heroin in jail (count 1) and possessing heroin (count 2). It also was alleged that he had three prior strike convictions and had served six prior prison terms.
On February 27, 2008, Wagoner filed a motion to reveal the name of the confidential informant (hereafter CI). The People opposed the release of the CI’s name and the trial court ultimately denied the motion.
At trial the evidence established that at the Lerdo facility inmates do not have access between pods. They are not supposed to enter the cells of other inmates and may be disciplined at the correctional officer’s discretion if an officer catches them violating this rule. Four cells in D-pod are opened simultaneously, on a rotational basis, for four hours at a time. Bunk assignments are worked out by the inmates themselves, unless there is a medical issue. Wagoner’s cell was open from 11:30 a.m. to 3:00 p.m. on June 25 and from 3:00 p.m. to 6:30 p.m. on June 26.
Two inmates, Donald Duval and David Bello, testified they had shared a cell with Wagoner for one week and one month, respectively. They stated Wagoner preferred the top bunk.
The jury found Wagoner guilty of both counts. The trial court found all the prior strike convictions and four of the prior prison term allegations to be true. Wagoner was sentenced to a total term of 28 years to life.
DISCUSSION
Wagoner contends the trial court erred in denying his request to reveal the CI’s name without holding an in camera hearing. He also claims the evidence was insufficient to establish that he constructively possessed the heroin found under his mattress. Wagoner also argues, and the People concede, that his conviction for possession of heroin must be stricken as a lesser included offense of the possession of heroin in jail count and the security fee imposed must be reduced from $40 to $20.
I. Disclosure of the Confidential Informant
Wagoner contends the trial court erred when it failed to conduct an in camera hearing on his request to disclose the name of the CI. The People argue that no in camera hearing was required and the trial court properly denied the motion because the CI was not a material witness.
Factual summary
Wagoner pled not guilty when charged with possession of this heroin. A few days after entering his plea, and as part of his discovery requests, Wagoner sought to learn the name of the CI. Wagoner filed a motion requesting disclosure of the CI’s name. In support of the motion to disclose the name of the CI, Wagoner provided a portion of the preliminary hearing transcript, the incident reports, and a declaration from counsel.
Wagoner’s motion asked that the name of the CI be disclosed because the CI might know, or have information leading to someone who would know, who planted the drugs in Wagoner’s cell.
The People opposed the motion, arguing that the information was privileged and that the CI had not provided information on drug sales, only possession of drugs. Alternatively, the People asked that an in camera hearing be held if the trial court found that Wagoner had made a prima facie showing for disclosure.
At the March 27, 2008, hearing on the motion to disclose the name of the CI, the judge indicated he would not read or consider the incident reports or the transcript of the preliminary hearing and, consequently, there was “no evidence” before the court. The judge stated, “Until there is evidence there won’t be any in camera hearing.”
Wagoner’s counsel then attempted to argue the point and indicated that the reasons for seeking the identity of the CI had been set forth in the moving papers. The trial court again notified defense counsel that there was “no evidence at this point,” and that the hearing would not go forward without evidence. At that point, defense counsel called Alkire, who was present in the courtroom, to testify.
The incident report prepared by Alkire states that while he was investigating another incident at the Lerdo facility, a “reliable confidential informant” (capitalization omitted) told him that Wagoner was in possession of heroin. The supplemental incident reports prepared by Ashley and Mendez state that they handcuffed Wagoner and placed him face down on the lower bunk in the cell after entering the cell to perform a search.
Alkire testified that a reliable CI had told him that Wagoner was in possession of heroin. Based upon information from the CI, a search of Wagoner’s cell was conducted. The search was conducted after the cell had been one of those opened for a four-hour period when inmates “can go in and out of the cell.”
Alkire stated the CI told him what to find and where to find it. Alkire stated the CI had given tips to other officers before and was known “as a normal tipster giving out information on other inmates.” When defense counsel asked for the name of the CI, the privilege was invoked.
The defense presented no further witnesses and asked that an in camera hearing be held. The prosecutor submitted and the trial court denied the request for an in camera hearing, stating, “It’s not apparent to me what material evidence or any evidence would come out as a result of that.” Defense counsel argued that the CI either had access to Wagoner’s cell or knew someone who had access to Wagoner’s cell in order to have known about the heroin and asked that an in camera hearing be held to explore the source of the tipster’s specific knowledge. The trial court responded that the motion was denied.
Subsequently, at the start of the trial, the prosecutor moved to prohibit Wagoner from arguing possible third party culpability, including any culpability on the part of the CI. Defense counsel argued that “our hands are tied behind our back” because they were precluded from finding out the identity of the CI, questioning the CI as to how he obtained specific knowledge of the presence and location of heroin in Wagoner’s cell, and, because they did not know the CI’s identity, they could not determine whether the CI might have had access to Wagoner’s cell. The defense argued that the CI provided specific information that only someone who “knew or was in that cell [would] know.” Defense counsel renewed the request for an in camera hearing.
Ultimately, the trial court ruled that with respect to the CI, “there is no direct or circumstantial evidence linking that person to the actual perpetration of the crime.” The defense was precluded from asserting third party culpability, except as to the cellmate, because the cellmate could be identified specifically and had access to the cell.
Analysis
The CI privilege (Evid. Code, § 1041) is necessary to promote the free flow of information to law enforcement. Anonymity provides protection to the informant. The public interest would suffer if an informant’s identity were always discoverable. (People v. Hobbs (1994) 7 Cal.4th 948, 958.) Although retaining confidentiality promotes a strong public interest, fundamental fairness requires the privilege to be limited in its scope. “‘Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.’ [Citation.]” (Id. at p. 959.)
An informant’s identity must be disclosed if the informant is a material witness. (Eleazar v. Superior Court (1970) 1 Cal.3d 847, 851 (Eleazar).) Evidence Code section 1042, subdivision (d) provides a mechanism to test whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. It provides:
“(d) When, in any such criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. Such hearing shall be conducted outside the presence of the jury, if any. During the hearing, if the privilege provided for in [Evidence Code] Section 1041 is claimed by a person authorized to do so or if a person who is authorized to claim such privilege refuses to answer any question on the ground that the answer would tend to disclose the identity of the informant, the prosecuting attorney may request that the court hold an in camera hearing. If such a request is made, the court shall hold such a hearing outside the presence of the defendant and his counsel. At the in camera hearing, the prosecution may offer evidence which would tend to disclose or which discloses the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. A reporter shall be present at the in camera hearing. Any transcription of the proceedings at the in camera hearing, as well as any physical evidence presented at the hearing, shall be ordered sealed by the court, and only a court may have access to its contents. The court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the witness refuses to disclose the identity of the informant, unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.” (Eleazar, supra, 1 Cal.3d at p. 851.)
The defendant has the burden of proving that the informant was a material witness. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 88 (Theodor).) Ordinarily, the defendant must make a prima facie showing of such materiality before the trial court is required to conduct an in camera hearing. (People v. Montgomery (1988) 205 Cal.App.3d 1011, 1021 (Montgomery).)
It is well settled that when the defendant makes an adequate showing that the informer may be a material witness on the issue of guilt or innocence, disclosure should be compelled or the case dismissed. (Theodor, supra, 8 Cal.3d at p. 88.) The defendant “need not prove that the informer would give testimony favorable to the defense in order to compel disclosure of his identity, nor need he prove that the informer was a participant in or even an eyewitness to the crime.” (Price v. Superior Court (1970) 1 Cal.3d 836, 843.)
Wagoner argues that the trial court was required to hold an in camera hearing because he made a prima facie showing. The People contend no in camera hearing was required because Wagoner failed to make a prima facie case that the CI was a material witness.
Both in the trial court and on appeal, the People argue that the CI is not a material witness because the charge is possession and the evidence establishes possession by Wagoner, irrespective of the CI’s information. This argument, however, misses the point. Wagoner’s defense was that he did not know of the heroin’s presence and that it must have been placed there by someone else. This defense is not implausible. Wagoner had been in the cell for one day or less; the cell had been open on a rolling lockdown during the time Wagoner was assigned to the cell; the heroin package was so small that it could not be seen or felt under the mattress; and the CI knew of the heroin’s presence and location in the cell.
Wagoner’s situation is not unlike that of the defendant in People v. Reel (1979) 100 Cal.App.3d 415, where the defendant was charged with being a felon in possession of a firearm when firearms were found in his apartment. The defendant sought disclosure of a CI’s identity because his defense was that the guns had been placed in his apartment by a third person, without his knowledge, while he was absent from his apartment. (Id. at pp. 418-419.) In Reel, the trial court ordered disclosure of the informant’s name without first conducting an in camera hearing, although the People immediately requested an in camera hearing after disclosure was ordered. The People appealed. (Id. at pp. 417-418.) The appellate court held that the trial court should have held an in camera hearing before ordering disclosure. (Id. at p. 419.)
In People v. McShann (1958) 50 Cal.2d 802 (McShann), the California Supreme Court discussed when disclosure is required.
“Disclosure is not limited to the informer who participates in the crime alleged. The information elicited from an informer may be ‘relevant and helpful to the defense of the accused or essential to a fair determination of a cause’ even though the informer was not a participant. For example, the testimony of an eyewitness-nonparticipant informer that would vindicate the innocence of the accused or lessen the risk of false testimony would obviously be relevant and helpful to the defense of the accused and essential to a fair determination of the cause.
“Disclosure is frequently a problem in such cases as the present one involving violations of the narcotics laws, when the so-called informer is also a material witness on the issue of guilt. A mere informer has a limited role. ‘When such a person is truly an informant he simply points the finger of suspicion toward a person who has violated the law. He puts the wheels in motion which cause the defendant to be suspected and perhaps arrested, but he plays no part in the criminal act with which the defendant is later charged.’ [Citation.] His identity is ordinarily not necessary to the defendant’s case, and the privilege against disclosure properly applies.… Thus, when it appears from the evidence that the informer is a material witness on the issue of guilt and the accused seeks disclosure on cross- examination, the People must either disclose his identity or incur a dismissal. [Citation.]” (McShann, supra, 50 Cal.2d at p. 808.)
The People appear to misconstrue Wagoner’s burden when making the request. Wagoner was not required to establish that the CI was a material witness in order to trigger an in camera hearing. His burden was merely to make a prima facie showing that the CI might have information that was relevant to guilt or innocence or that might be useful in presenting a defense. (Montgomery, supra, 205 Cal.App.3d at p. 1021.) The function of the in camera hearing is to determine if the CI is a material witness whose identity must be disclosed. (Evid. Code, § 1042, subd. (d); People v. Lee (1985) 164 Cal.App.3d 830, 839 (Lee).)
There always will be some element of speculation as to whether there is a reasonable possibility a CI could give evidence that might result in a defendant’s exoneration. (Williams v. Superior Court (1974) 38 Cal.ApP.3d 412, 420 (Williams).) Disclosure is sometimes required, however, even if the CI is neither an eyewitness nor a participant. (Id. at p. 421.)
In Williams the defendant was charged with possession of heroin for sale when heroin was found in a dresser in a bedroom shared by the defendant and her boyfriend. (Williams, supra, 38 Cal.App.3d at pp. 416, 422.) The defendant sought disclosure of the informant’s identity because the informant might have had information indicating the defendant did not know of the presence of or constructively possess the heroin. (Id. at pp. 422, 424.) The appellate court concluded that the trial court erroneously had denied disclosure without holding an in camera hearing. (Id. at p. 425.)
In Wagoner’s case we are unable to determine the exact role the CI may or may not have played because no in camera hearing was held. We do not know whether disclosure of the CI’s identity should have been ordered because no in camera hearing was held. Numerous questions remain unanswered. How did the CI know that Wagoner was in D-pod cell 109? How did the CI know that Wagoner had heroin? Did the CI anticipate or expect any leniency or favoritism as a result of giving this information to Alkire? Did the CI, or anyone who might have communicated information to the CI about the heroin, hold any grudge toward Wagoner? Contrary to the People’s assertion, Alkire could not have answered these questions.
We do know that Wagoner denied culpability; he maintained that a third party was culpable; and he was denied the ability to assert any third party culpability at his trial, except as to his current cellmate.
We also note that the trial court, in precluding Wagoner from arguing third party culpability except as to his current cellmate, relied on its interpretation of People v. Hall (1986) 41 Cal.3d 826 and stated motive and opportunity to commit the crime by a third person was insufficient to raise a reasonable doubt. In Hall, however, the California Supreme Court rejected a bright-line rule and indicated trial courts should assess third party culpability evidence under Evidence Code sections 350 and 352 for admissibility. (Hall, at p. 834.) This is yet another reason an in camera hearing should have been held.
Conclusion
We conclude the trial court erred in failing to conduct an in camera hearing. The conviction will be reversed with directions to conduct an in camera hearing pursuant to Evidence Code section 1042, subdivision (d). If, after the in camera hearing has been held, the trial court finds no reasonable possibility the failure to disclose the informant’s identity deprived Wagoner of a fair trial, the judgment shall be reinstated. In the event there is a reasonable possibility the failure to disclose the informant’s identity deprived Wagoner of a fair trial, the reversal stands. (See Lee, supra, 164 Cal.App.3d 830.)
II. Sufficiency of the Evidence
Wagoner contends the evidence was insufficient as a matter of law to establish that he possessed the heroin. Wagoner was not in actual possession of the heroin and he argues that the evidence was insufficient to establish constructive possession. Even though we are reversing the count 1 conviction (possession of heroin in jail) with directions to conduct an in camera hearing, we address the sufficiency of the evidence because if the trial court finds no reasonable probability the failure to disclose the informant’s name deprived Wagoner of a fair trial, we are directing the count 1 conviction be reinstated.
In reviewing a sufficiency of the evidence claim, the appellate court’s role is a limited one. “‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa); see also Jackson v. Virginia (1979) 443 U.S. 307, 319.)
“‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (Ochoa, supra, 6 Cal.4th at p. 1206.)
“The essential elements of possession of a controlled substance are ‘dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character.’” (People v. Palaschak (1995) 9 Cal.4th 1236, 1242 (Palaschak); see also People v. Martin (2001) 25 Cal.4th 1180, 1184.) To establish possession, it is sufficient to demonstrate the defendant had actual or constructive possession of the contraband. (People v. Cordova (1979) 97 Cal.App.3d 665, 669.)
“Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.] Exclusive possession is not necessary. A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others. [Citations.]” (People v. Rushing (1989) 209 Cal.App.3d 618, 622.)
“Constructive possession exists where a defendant maintains some control or right to control contraband.…” (People v. Morante (1999) 20 Cal.4th 403, 417.) “[P]ossession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. [Citation.]” (People v. Newman (1971) 5 Cal.3d 48, 52.) Joint constructive possession may be inferred from joint control and accessibility. (Id. at p. 53.)
An inference of dominion and control easily is made when the contraband is discovered in a place over which the defendant has general dominion and control, such as his residence, his automobile, or his personal effects. (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.) Moreover, a factor that may support an inferential showing of constructive possession includes joint occupancy of the premises where drugs are located. (People v. Poe (1958) 164 Cal.App.2d 514, 516 (Poe).)
Proof of the mere opportunity to access the place where narcotics are found cannot support a finding of unlawful possession. (People v. Glass (1975) 44 Cal.App.3d 772, 776-777 (Glass).) In Glass, the defendant was a visitor to the apartment where the narcotics were found; he did not reside there. His mere presence in a room of the apartment other than where narcotics were found was insufficient to infer possession. (Ibid.)
In the case of In re Zepeda (2006) 141 Cal.App.4th 1493 (Zepeda), contraband was found in the common area of a cell accessible to both prisoners. The defendant’s cellmate claimed ownership of the item in which the contraband was found. (Id. at p. 1495.) Zepeda was subjected to disciplinary restrictions, but not a criminal prosecution. The appellate court recognized that while disciplinary findings could be upheld, the evidence “would likely be insufficient to form the basis of a criminal conviction.” (Id. at p. 1499.)
Granted, Wagoner did not have exclusive dominion over his cell, but he was more than a visitor as in Glass. He did have joint occupancy of the cell, which supports an inference of constructive possession. (Poe, supra, 164 Cal.App.2d at p. 516.) Furthermore, unlike the prisoner in Zepeda, the contraband was not found in a common area of the cell and Wagoner’s cellmate did not claim ownership. Additionally, the joint occupancy of the cell was combined with some evidence indicating that Wagoner was using the lower bunk under which the heroin was found. Wagoner’s personal effects were on the lower bunk and his cellmate was lying on the top bunk.
Although Wagoner contends this evidence was insufficient as a matter of law to establish constructive possession, no sharp line can be drawn to distinguish the facts that will and will not constitute sufficient evidence of a defendant’s knowledge of the presence of a narcotic in a place to which he had access, but not exclusive access, and over which he had some control, but not exclusive control. (People v. Redrick (1961) 55 Cal.2d 282, 287.)
We acknowledge that the evidence was far from overwhelming that Wagoner had knowledge of and constructively possessed the heroin under the lower bunk of the cell to which he had been assigned for one day. On review for substantial evidence, however, the existence of conflicting inferences does not undermine the jury’s determinations of credibility and disputed factual issues. (People v. Millwee (1998) 18 Cal.4th 96, 132.)
III. Conviction of a Lesser Included Offense and Imposition of a Security Fee
Wagoner contends his conviction for possession of heroin must be reversed because it is a lesser included offense of possession of heroin in jail. The People concede the issue.
An offense is necessarily included if the statutory elements of the greater offense include all the elements of the lesser offense. (People v. Lewis (2008) 43 Cal.4th 415, 518 (Lewis).) Applying this test, the offense of possession of heroin set forth in Health and Safety Code section 11350 is a necessarily included offense of the crime of possession of heroin in jail as set forth in Penal Code section 4573.6.
Multiple convictions may not be based on necessarily included offenses arising out of a single act. (Lewis, supra, 43 Cal.4th at p. 518.) Therefore, the conviction under Health and Safety Code section 11350 for possession of heroin must be reversed.
The trial court imposed a $40 security fee pursuant to Penal Code section 1465.8, subdivision (a)(1), consisting of a $20 fee for each conviction. Wagoner contends the fee must be reduced to $20 because the possession of heroin conviction is being reversed. The People concede the issue and we agree. (People v. Villa (2007) 157 Cal.App.4th 1429, 1435.)
DISPOSITION
The count 2 conviction for possession of heroin is reversed. The count 1 conviction for possession of heroin in jail is reversed with directions to conduct an in camera hearing pursuant to Evidence Code section 1042, subdivision (d). If, after the in camera hearing has been held, the trial court finds no reasonable possibility the failure to disclose the informant’s identity deprived Wagoner of a fair trial, the conviction on count 1 shall be reinstated and an amended abstract of judgment prepared in accordance with this opinion. In the event the trial court finds there was a reasonable possibility the failure to disclose the informant’s identity deprived Wagoner of a fair trial, the reversal of the count 1 conviction stands.
WE CONCUR: DAWSON, J., KANE, J.
In the preliminary hearing transcript, Alkire states he assumed the lower bunk was occupied by Wagoner because, when Alkire entered the cell, Wagoner was face down on the lower bunk and his personal effects were on the bunk next to him. Alkire did not know, however, whether the personal property had been placed on the bunk when Ashley and Mendez commenced a search of the cell while Alkire was outside the cell or if Wagoner had placed it on the bunk.
Alkire also testified that the small amount of heroin wrapped in plastic that he found under the mattress was small enough that a person lying or sitting on top of the mattress would never feel it or notice its presence. Alkire could not determine how long the heroin may have been under the mattress. Alkire acknowledged that D-pod was on a rolling lockdown, meaning that during any four-hour period up to eight inmates would be free to roam outside their cells. Wagoner was not examined or tested to see if he was under the influence of drugs. Alkire had never been assigned to D-pod before being present for the search.