Opinion
H035638
12-14-2011
THE PEOPLE, Plaintiff and Respondent, v. TOLLICE JUNIOR WILLIAMSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC952106)
Defendant Tollice Williamson, Jr., pleaded no contest to drug offenses and was sent to a diversion program instead of prison. He claims that he received ineffective assistance of counsel that led to the trial court's denying his motion to suppress evidence.
The appellate courts occasionally encounter a case in which the case caption, reflected in all of the transcript volumes, is at variance with a party's true name. This is one such case. The defendant is Tollice Williamson, Jr., not Tollice Junior Williamson. In past experience, however, it has proved difficult to modify the case's formal title at this stage. It could also prove to be confusing. Therefore, we will not attempt such a modification.
Defendant has filed a petition for writ of habeas corpus in a separate cause, which we have considered with this appeal. (In re Tollice Junior Williamson on Habeas Corpus (H036638).) By separate order of this date, we dispose of the petition.
PROCEDURAL BACKGROUND
After the trial court denied defendant's motion (Pen. Code, § 1538.5) to suppress evidence that the police recovered near his house, he pleaded no contest to possessing cocaine (Health & Saf. Code, § 11350, subd. (a)), being under the influence of cocaine (id., § 11550, subd. (a)), and possessing narcotics paraphernalia (id., § 11364). In addition, he admitted a recidivist enhancement allegation, namely that he had a prior conviction that implicated the "Three Strikes" law and made him a second-strike offender subject to a doubling of a prison sentence should one be imposed on him (Pen. Code, § 1170.12, subd. (c)(1)). The court, however, suspended imposition of sentence and imposed two years' formal probation, one condition thereof being the successful completion of a substance abuse program under Proposition 36.
FACTS
On the night of August 13, 2009, a citizen called police after perceiving that people were trying to break into a car parked in a driveway across the street. San Jose Police Officer Jarrod Nunes responded and parked his patrol car in the street within 15 or 20 feet of that car. He was in front of 392 Blossom Hill Road and within a few feet of the driveway for the adjacent address of 390 Blossom Hill Road, where the car reported to be the subject of the perceived burglary was parked.
The dispatcher advised Officer Nunes that all but one of the suspicious-acting men were hiding in some bushes in a front yard and that the other one was keeping watch.
Officer Nunes looked at the houses and saw some bushes between them at the front of the house envelopes, but set back some feet from the sidewalk. To the left was 390 Blossom Hill Road. The car in question was parked on the right side of the 390 Blossom Hill Road driveway, a few feet from defendant's house at 392 Blossom Hill Road. To the right, alongside 392 Blossom Hill Road, were one or more garbage cans. The cans were against the side wall at the front of the house, visible from the street, not protected by a fence or other type of enclosure, and accessible to any passerby who might want to rummage through them.
Officer Nunes pointed his patrol car's spotlight toward the façades of 390 and 392 Blossom Hill Road and saw people behind the bushes between the residences and a few feet from the garbage cans. As he emerged from his patrol car he saw the individuals— three men and a woman—stand up. He asked them to come over. All but defendant walked directly toward Officer Nunes. Defendant, conversely, first walked over to what Officer Nunes described as "a garbage can right in front of the garage . . . ." He moved the can "away from the wall, and drop[ped] something behind it." Then he came over to Officer Nunes.
Officer Nunes suspected that defendant had ridded himself of incriminating narcotics. "It was obvious that he was discarding something illegal . . . ." When additional police officers arrived, Officer Nunes said to his fellow officers: "Could you watch him? I believe he dumped some dope over there, plus I need to check out the vehicle on the other side to see if it was broken into."
When Officer Nunes walked towards the garbage cans he used his flashlight to check the area near the bush and make sure no one had remained there in hiding. In so doing he saw, in front of the garbage cans, a glass pipe showing a white residue, an object he described as "a crack pipe."
Officer Nunes moved the garbage can away from the wall at 392 Blossom Hill Road and saw crumpled five-dollar bills on the ground. The bills were about five to six feet away from the glass pipe. He picked up the bills, unfolded one, and found a substance that looked like crack cocaine. He also examined the car in the driveway of 390 Blossom Hill Road and saw no signs of tampering.
DISCUSSION
I. Claim of Ineffective Assistance of Counsel for Failure to Advance the Only Viable Argument in Favor of the Motion to Suppress Evidence
Defendant claims that he received ineffective assistance of counsel because counsel advanced a meritless argument in support of his motion to suppress the evidence (Pen. Code, § 1538.5) that the police recovered at the scene.
The parties agreed that the search was warrantless. Officer Nunes saw defendant discard what the officer suspected to be contraband. He walked over to the area of defendant's actions and picked up the drug-related glass pipe and suspected drugs without first seeking a warrant.
Defense counsel moved in writing to suppress the evidence of the charged crimes on the grounds that defendant had a reasonable expectation of privacy in his property. At the contested hearing, however, following Officer Nunes's testimony, defense counsel tailored his argument to an assertion that Officer Nunes lacked reasonable suspicion to detain defendant and did not continue to pursue the privacy argument. "I don't believe that there was reasonable suspicion for a detention at that point in time," counsel argued, "given the fact that the only information that the officer had was from an anonymous informant or anonymous informer . . . ." "[A] tip from an anonymous informer is usually inherently unreliable and normally requires some corroboration," counsel added. Counsel argued further that the officer's observations did not furnish the required corroboration, because it was not obvious that his client and the other people were hiding behind the bushes. Instead, "one inference is that they are sitting on a residential driveway behind a bush." In addition, "that's what people do with garbage cans, they drop things into them."
The prosecutor argued in part that the citizen who reported the suspected automobile burglary was "not a paid informant" or "confidential informant" whose reliability might be suspect, but an ordinary individual reporting a suspected crime in progress. In addition, "crouching in the dark . . . next to a car" that a citizen has reported as being burglarized "is by itself suspicious activity."
Defendant did not argue to the trial court that Officer Nunes infringed on his reasonable expectations of privacy.
The trial court denied the motion.
Defendant argues on appeal that defense counsel should have continued to pursue the privacy argument and should not have presented the reasonable suspicion argument, which he believes had little chance of success.
There is, of course, a two-part test that determines the outcome of an ineffective assistance of counsel claim. A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendant's claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
Defendant argues that effective trial counsel would have realized that the motion to suppress could not succeed, for two reasons. First, contrary to defense counsel's argument that the reporting party was an anonymous informant whose reliability could not be assessed and whose report thus would be unlikely, without corroborating circumstances, to generate reasonable suspicion (Florida v. J. L. (2000) 529 U.S. 266, 270-272), the reporting party here was, as noted, a neutral observer who called police to report what the reporting party thought was a crime in progress. Such a report is presumed to have a degree of reliability for purposes of the Fourth Amendment's reasonableness standard. "[I]f an unquestionably honest citizen comes forward with a report of criminal activity—which if fabricated would subject him to criminal liability— we have found rigorous scrutiny of the basis of his knowledge unnecessary." (Illinois v. Gates (1983) 462 U.S. 213, 233-234.) Second, as soon as Officer Nunes saw defendant act suspiciously around the garbage cans, acting in a way that the officer perceived to be the discarding of narcotics, the reliability of the original information became, at a minimum, less significant in assessing reasonable suspicion (see Florida v. J. L., supra, 529 U.S. at pp. 270-271), and possibly entirely unimportant. Officer Nunes was where he was entitled to be and he directly observed activity giving rise to a reasonable suspicion that defendant was engaged in ridding himself of contraband.
We will accept for purposes of argument that trial counsel offered a rationale for suppressing the evidence that had only a slim chance of succeeding.
A. Seizure of the Glass Pipe
On this record, defendant cannot demonstrate prejudice with regard to the crack pipe. We agree with the People that there is no reasonable probability that the trial court would have ruled in defendant's favor had counsel advanced the different argument he presents on appeal.
"In ruling on a motion to suppress [§ 1538.5], the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]" (People v. Hoyos (2007) 41 Cal.4th 872, 891.)
To summarize the relevant facts: Officer Nunes was investigating a presumptively reliable report of a car burglary in progress. Looking at the car in question, he saw people apparently hiding in nearby foliage. Defendant emerged and, suspiciously in Officer Nunes's eyes, disregarded an instruction to approach the officer and threw something behind some garbage cans. When additional police officers had secured the scene and enabled Officer Nunes to inspect the area, he walked to the area of defendant's suspicious activity and saw the crack pipe on the ground.
Looking at the car from the street did not implicate the Fourth Amendment; it was not a search. "[T]he Fourth Amendment 'has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.' " (United States v. Dunn (1987) 480 U.S. 294, 304.) The more difficult question is whether the Fourth Amendment permitted Office Nunes's seizure of the crack pipe without a warrant. We conclude that it did.
The answer is not immediately evident, however. The general rule is that " 'no amount of probable cause can justify a warrantless search or seizure absent "exigent circumstances." Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.' " (Horton v. California (1990) 496 U.S. 128, 137, fn. 7.)
However, a warrantless seizure of contraband may legitimately be executed when "the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed"; "the item . . . [is] in plain view"; "its incriminating character . . . [is] 'immediately apparent[]' "; "the officer . . . [is] lawfully located in a place from which the object can be plainly seen"; and the officer has "a lawful right of access to the object itself." (Horton v. California, supra, 496 U.S. at pp. 136-137.)
All of the foregoing requirements are self-evidently satisfied except two: whether Officer Nunes invaded the curtilage of defendant's home and thus violated the Fourth Amendment in arriving where he found the glass pipe, and whether he had a lawful right of access to the object.
In our view, Officer Nunes did not invade the curtilage of defendant's home in violation of the Fourth Amendment.
"Drawing upon the Court's own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home's curtilage, we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. [Citations.] We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a 'correct' answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration— whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." (United States v. Dunn, supra, 480 U.S. at p. 301, fn. omitted.)
Of course, any miscalculation by counsel along the lines defendant asserts on appeal would bear only on deficient performance, and it is axiomatic that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697.) Furthermore, with regard to prejudice, defendant must demonstrate a " ' "demonstrable reality," not simply speculation.' [Citations.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
The parties have commended to our attention, and defendant provided at the end of his opening brief, full-color reproductions of two exhibits from the proceedings in the court below. These exhibits consist of images from the Google Maps online database that provide a daytime aerial view and a daytime street view of 390 and 392 Blossom Hill Road. Defendant offers the reservation in his reply brief that the events in question took place at night and to that extent the exhibits are at variance with the situation Officer Nunes was able to observe on pulling up to the residences on the street and shining his patrol car's spotlight on the area. But defendant agrees that the exhibits show the location of the relevant events.
Considering the record on appeal, including the property layout image exhibits before the trial court, we conclude, on independent review of the ultimate question before us (People v. Hoyos, supra, 41 Cal.4th at p. 891), i.e., the validity of the seizure, that defendant had no reasonable expectation of privacy in the area in front of the garbage cans where Officer Nunes found the crack pipe, as that area is not "so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." (United States v. Dunn, supra, 480 U.S. at p. 301.)
Considering the four Dunn factors, the first, namely the closeness of the glass pipe to the home, is, at best for defendant, neutral. Defendant dropped the object a few feet from the walls of his residence. It is neither notably near to nor far from the walls of his home. Moreover, if the photographic exhibits are precise, the pipe lay closer to the neighboring house than to defendant's.
The other three factors, by contrast, weigh definitively against defendant. Not only is the recovery site not "included within an enclosure surrounding the home" (United States v. Dunn, supra, 480 U.S. at p. 301), but also "the nature of the uses to which the area is put" (ibid.) is that it was an exposed space to which the neighbor had free access, and "the steps taken by the resident to protect the area from observation by people passing by" (ibid.) were minimal. The glass pipe was found in an area in easy view of anyone who might be passing by on the nearby sidewalk or the thoroughfare of Blossom Hill Road, both mere feet from the glass pipe's location. The neighbor would have the easiest possible access to that area.
To be sure, when Officer Nunes arrived there was a car parked in the 390 Blossom Hill Road driveway (i.e., to the left as one faces the two residences) that presumably blocked some or most of the view from a person standing on the sidewalk facing that residence. Similarly, the photographic exhibits show a car parked at 392 Blossom Hill Road that might have much the same effect. But the presence of any automobiles is a fortuity—there is no reason to believe that any such cars were long-abandoned contrivances, left permanently in place, that might aid a claim of an expectation of privacy.
Defendant urges us to follow People v. Edwards (1969) 71 Cal.2d 1096, but that case is factually distinguishable.
In Edwards, our Supreme Court disapproved a warrantless police search of some garbage cans, but observed that "the trash can was within a few feet of the back door of defendants' home" (People v. Edwards, supra, 71 Cal.2d at p. 1104), was located in " 'the open back yard area' of that residence" (id. at p. 1098), and could be reached only by police investigators' walking down "railroad tracks behind defendants' residence" (ibid.) to gain access to the area.
By contrast, the situation here is almost identical to one in which the Fourth Amendment was held not to be violated. "[A]ppellant's home was in a suburban residential neighborhood and had a typical unenclosed front yard and driveway adjacent to the public street. The officer entered and contacted appellant on the driveway approximately 20 feet from the street. This location was not one in which a right of privacy would normally exist." (In re Gregory S. (1980) 112 Cal.App.3d 764, 775.)
Edwards also found the search and seizure unconstitutional because the garbage can "required trespass for its inspection" and "was an adjunct to the domestic economy." (People v. Edwards, supra, 71 Cal.2d at p. 1104.)
However—and this returns us to our description of the law set forth in Horton v. California, supra, 496 U.S. 128—Officer Nunes committed no trespass in investigating the initial report. He had a right to park on Blossom Hill Road, whence he observed defendant make furtive movements and discard something in the area of the garbage cans, and he had a duty to check the car parked in the 390 Blossom Hill Road driveway that the citizen observer reported as the subject of a burglary.
It may be—we do not decide the issue—that the officer committed some sort of technical trespass in venturing from the driveway at 390 Blossom Hill Road to the location where he found the glass pipe if he found the pipe on the 392 Blossom Hill Road premises. (However, the exhibit presented to the trial court suggests that the pipe lay on the 390 Blossom Hill Road property.) Presumably defendant would not have consented to police entry onto his property if the pipe happened to be lying there. (But see Pen. Code, § 602.5, subd. (a) [public employee acting in accordance with legal duty does not commit offense by entering dwelling].)
We agree, however, with the rejection of a similar argument in People v. Thompson (1990) 221 Cal.App.3d 923. Thompson noted that " '[the California] Supreme Court has made clear that a police officer who makes an uninvited entry onto private property does not per se violate the occupant's Fourth Amendment right of privacy. The criterion to be applied is whether entry is made into an area where the public has been implicitly invited, such as the area furnishing normal access to the house. A reasonable expectation of privacy does not exist in such areas. [Citation.]' [Citation.]" (Id. at p. 942.) Although Officer Nunes may have taken a different route than walking up to defendant's front door—which would have been an idle act, given that all of the suspicious activity was happening to the left of defendant's front door—Thompson explains that "[a]lthough in the instant case the officers may have entered appellant's property by way of an area that was not a 'normal route of access for anyone visiting the premises,' [citation], . . . the intrusion was not a substantial and unreasonable departure from a normal route of access when balanced against the public concern for the prevention of crime and the concern to maintain peace and security in the neighborhood, not to mention appellant's own interest in the security of his residence." (Id. at p. 944.) It is not as though Officer Nunes skulked around the premises of 390 and 392 Blossom Hill Road in an effort to discover crime that would not otherwise have been apparent, i.e., that he "created an artificial vantage point from which to further observe activities on the premises" (id. at p. 945). Thompson concludes by stating the obvious: "The police would have an unreasonably difficult time protecting citizens and their property from the criminal actions of third parties if police were restricted to walkways, driveways, and other normal access routes when the third parties whom the officers seek to detain do not restrict themselves to such areas." (Ibid.) The Fourth Amendment did not bar Officer Nunes's investigatory actions.
Even if the trespassing factor came into play at some point, moreover, it is not particularly significant. (See People v. Manderscheid (2002) 99 Cal.App.4th 355, 361.) Indeed, about the same time as our Supreme Court decided Edwards, it held in People v. Terry (1969) 70 Cal.2d 410, a case involving police entry into and discovery of contraband in a common area of an apartment building, i.e., its garage, that "[e]ven if . . . the officers' entry into the garage was a technical trespass, their observations therein . . . did not constitute an unreasonable search." (Id. at p. 427.) In our view, the foregoing observations are not countermanded by Horton v. California, supra, 496 U.S. 128. The Fourth Amendment does not bar a police officer from retrieving, without a warrant, portable contraband that the officer happens upon in the course of a legitimate investigation even if the officer did not first obtain permission to walk across a neighbor's lawn or driveway to conduct the investigation that led to the inadvertent discovery of the contraband. The Fourth Amendment prohibits unreasonable searches and seizures, and this is not one of them.
As for the adjunct-to-the-domestic-economy language, which defendant also relies on, it has figured little in California's Fourth Amendment jurisprudence since Edwards, meriting, in the case of our Supreme Court, no more than a passing reference in City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, and then only to diminish the factor's significance: "personal financial affairs are clearly more than the 'adjunct to the domestic economy' referred to in Edwards . . . ." (Id. at p. 268.)
Defendant also relies on People v. Camacho (2000) 23 Cal.4th 824, but it too is distinguishable. In Camacho, a police officer walked into an unenclosed side yard, then walked another 20 feet to a window in the defendant's house, looked through it, and saw the defendant engaged in suspicious activity apparently involving illegal drugs. (Id. at pp. 828-829.) Significantly, and markedly different from the facts of this case, the window was "visible from the public street or sidewalk, but the inside of the room is not. The neighbor on that side of the house would have difficulty seeing into the window because of the high cement block wall separating the two homes." (Id. at p. 828.) The window had no blinds or curtains, but the police had to "peer[ ]" (id. at p. 837) through it to see the defendant's nefarious activities. Moreover, the majority in Camacho, a four-to-three decision, cautioned that "if the facts were different, perhaps only slightly so, we might conclude [that] the officers" (ibid.) committed no Fourth Amendment violation. The facts here are not just slightly but notably less favorable to defendant than those that the defendant in Camacho could bring to bear on his suppression motion.
There was no Fourth Amendment violation with regard to Officer Nunes's search for and seizure of the glass pipe. Therefore, defendant was not prejudiced by anything his counsel did or failed to do in moving to suppress that item of evidence. There was no ineffective assistance of counsel.
B. Seizure of Money Wrapped Around a Quantity of Crack Cocaine
Defendant claims that Officer Nunes committed a second Fourth Amendment violation when he pulled back the garbage can behind which he had seen defendant drop something, found crumpled five-dollar bills on the ground, picked them up, and found a quantity of crack cocaine wrapped inside one of them. He maintains that the officer invaded the curtilage of his home, in violation of the constitutional guaranty.
The People state that Officer Nunes may have ventured within the home's curtilage to retrieve the items. But they contend that the judgment must be affirmed even if that is the case because defendant has failed to meet what the People argue is his burden, given that this is an ineffective assistance of counsel claim, to show that the officer's actions could not be justified by exigent circumstances that would disallow him a remedy for any Fourth Amendment violation—exigent circumstances that reasonable counsel could reasonably discern.
"If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' " (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
To set forth the People's argument in more detail, they argue that because the record does not show whether exigent circumstances existed—the court did not call on the parties to address the question—but does not preclude that possibility, defendant cannot show that there could be no satisfactory explanation for counsel's failure to pursue alternate Fourth Amendment violation theories and that defendant was prejudiced by that failure. That is to say, the People contend that the record allows the possibility, if not a certainty, that reasonable counsel would have concluded that there were exigent circumstances to retrieve the money and that a suppression motion on the grounds defendant proposes here would have been fruitless.
We agree with the People that the judgment must be affirmed, but for somewhat different reasons. In our view, defendant lacked an expectation of privacy because he publicly discarded the money in an area not protected by the Fourth Amendment, although close to the walls of his home, and thus Officer Nunes did not violate the Fourth Amendment in retrieving it and unfolding it without a warrant. For this reason, we need not consider the possibility that exigent circumstances existed to justify the officer's actions.
Officer Nunes's testimony and the pictures in the record establish the lack of any expectation of privacy with regard to the discarded money.
Defendant discarded the money in full view of Officer Nunes. This act, which led the officer to suspect illegal activity involving drugs, would foreclose his claim were it not for the curtilage question, to which we now turn.
Defendant could have no expectation of privacy with regard to actions he performed publicly in an area not protected by the Fourth Amendment. "[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." (Katz v. United States (1967) 389 U.S. 347, 351.)
However, as noted, a warrantless seizure may not be performed no matter how evident it was to Officer Nunes that defendant was ridding himself of a contraband item, unless the Horton criteria are satisfied. The converse of that proposition is that although "the United States Supreme Court [has] emphasized that no amount of probable cause can justify a warrantless search or seizure, absent exigent circumstances[,] [w]e interpret these expressions to refer only to those situations in which there is a Fourth Amendment right to protection involved." (People v. Johnson (1981) 123 Cal.App.3d Supp. 26, 34.) Horton v. California, supra, 496 U.S. 128, appears to us to state no differently.
That returns us to further consideration of the curtilage-assessment factors laid out in United States v. Dunn, supra, 480 U.S. at page 301.
The cans' location does not particularly favor defendant's claim. Although against a wall of his house, they were at the front of his house next to his and his neighbor's unsecured and unenclosed driveways, all easily accessible and observable from the nearby street. Defendant's "home was in a suburban residential neighborhood and had a typical unenclosed front yard and driveway adjacent to the public street. The officer entered and contacted appellant on the driveway approximately 20 feet from the street. This location was not one in which a right of privacy would normally exist." (In re Gregory S., supra, 112 Cal.App.3d at p. 775.)
By the use of the adverb "normally" (In re Gregory S., supra, 112 Cal.App.3d at p. 775), Gregory S. acknowledges that its rule is not absolute. Yet we do not see an exception to the rule stated in Gregory S. in light of the geographical circumstances of this case. Defendant had taken no steps visible in the picture exhibits to fence off, conceal, lock down, or otherwise safeguard his garbage cans from the access easily afforded to anyone who cared to walk either up the neighboring driveway or up his own. There is "no evidence that entry into the driveway was in any way restricted or that the driveway was hidden from view from public roads." (Knott v. Sullivan (6th Cir. 2005) 418 F.3d 561, 574.) "It is common for solicitors, operators of motor vehicles, and other individuals to enter unsecured driveways of private residences." (State v. Lewis (Iowa 2004) 675 N.W.2d 516, 523.) That is true in the reality of urban California, in which the "other individuals" of which Lewis speaks include those who venture onto easily accessible private residential property to rummage through recycling and garbage bins for anything of interest or value. The realities of modern urban life are different from what they were in 1969, when People v. Edwards, supra, 71 Cal.2d 1096, could reasonably state: "We can readily ascribe many reasons why residents would not want their castaway clothing, letters, medicine bottles or other telltale refuse and trash to be examined by neighbors or others, at least not until the trash has lost its identity and meaning by becoming part of a large conglomeration of trash elsewhere." (Id. at p. 1104.) No prudent city residents today would deposit items in a trash can visible and accessible from the public street that they wish to keep private, even if they kept the can adjacent to the house and back from the sidewalk, verge, or curb.
Only one Dunn factor—"the proximity of the area claimed to be curtilage to the home" (United States v. Dunn, supra, 480 U.S. at p. 301)—favors defendant. The other three—"whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by" (ibid.)—do not. Of these three, the first and third are particularly unfavorable: there was no enclosure and if defendant took any steps to protect the area from public observation, they are not evident on this record. We conclude that Officer Nunes did not invade the curtilage of defendant's home in searching for and seizing the contraband that he thought, accurately, that defendant had attempted to hide before approaching him in response to his instruction.
Because the garbage cans were adjacent to the walls of defendant's home, this is a closer question than the question involving the discarded glass pipe, but we conclude that defense counsel could reasonably have decided that to raise the legal theory defendant argues for on appeal would have been fruitless. "Representation does not become deficient for failing to make meritless objections." (People v. Ochoa (1998) 19 Cal.4th 353, 463.) There was no ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
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Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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Rushing, P. J.
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Premo, J.