In re Harold M.

Filed 3/16/07 In re Harold M. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County and petition for a writ of habeas corpus, Irma J. Brown, Judge. Order reversed in part, affirmed as modified, and remanded with directions; petition granted.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a contested hearing, the juvenile court sustained a two-count petition alleging that 17-year-old Harold M. had been in possession of methamphetamine and a device for smoking a controlled substance (Welf. & Inst. Code, 602; Health & Saf. Code, 11377, subd. (a), 11364, subd. (a)), and ordered him suitably placed (with a term of confinement not to exceed three years (for the drug), two months (for the device)) with probation conditions.[1] Harold appeals, challenging the sufficiency of the evidence and a term of probation, and in his concurrently considered petition for a writ of habeas corpus claims ineffective assistance of counsel with regard to the smoking device. We grant the petition, reverse in part, modify the order and, as modified, affirm.

FACTS

When Torrance Police Officer Ryan Galassi and his partner pulled into the parking lot of a Days Inn hotel, they saw Adam Y. look in their direction and run into the hotels courtyard. The officers drove through the lot and stopped near the courtyard entrance. A few seconds later, Adam (sweating profusely and otherwise acting as though he was under the influence of methamphetamine) approached the patrol car. The officers got out of the car and asked Adam for his identification. Adam said it was in his backpack inside room 123, where he was staying with Harold.

The officers asked for and received permission to get Adams identification and he led them to the room. At the officers request, Adam knocked on the door to room 123, and a young man opened the door. Standing behind and to the left of Adam, Officer Galassi saw two other young men inside -- one standing by the bathroom, and Harold sitting on the side of one of the two beds with both his hands inside a trash can positioned between the bed and a nightstand. The officers asked all three young men to step outside the room, which they did, and Officer Galassi entered to retrieve Adams identification.[2]

Officer Galassi found Adams backpack on the nightstand, then looked down and saw a plastic baggie with multiple pieces of [a] crystalline substance sitting on top of trash in the can where Harolds hands had been. The officer conducted a further search and, in the nightstand, found a glass pipe with black burnt residue inside the ball of the pipe. Harold displayed no objective symptoms of being under the influence of methamphetamine.

Harold was detained and the two-count petition was filed on July 12, 2005.[3] At the contested hearing, the prosecutor offered evidence of the facts summarized above. In addition, Officer Galassi opined that the glass pipe was used for smoking methamphetamine, and a forensic chemist testified that the crystalline compound found in the trash can was methamphetamine. As noted at the outset, the juvenile court sustained the petition.

DISCUSSION

I.

Harold concedes that Officer Galassi had permission to enter the hotel room where he observed methamphetamine in plain view, giving him probable cause to search the room, but contends the officers knowledge of the methamphetamine alone was . . . not sufficient to justify a search without first obtaining a warrant because there were no exigent circumstances. He contends a motion to suppress (Pen. Code,  1538.5) would have been successful (People v. LeBlanc (1997) 60 Cal.App.4th 157, 166-167), leaving no evidence in support of a true finding on count 2. The Attorney General claims defense counsels failure to move to suppress was tactical and reasonable because such a motion would have been denied based on the inevitable discovery doctrine. We agree with Harold.

A.

The inevitable discovery doctrine exception to the exclusionary rule is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered. (People v. Robles (2000) 23 Cal.4th 789, 800; People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1214; In re Rudy F. (2004) 117 Cal.App.4th 1124, 1136.) The rule does not refer to discovery that would have taken place if the police behavior in question had . . . been lawful [and] does not treat as critical what hypothetically could have happened had the police acted lawfully in the first place. Rather, independent or inevitable discovery refers to discovery that did occur or that would have occurred (1) despite . . . the unlawful behavior and (2) independently of that unlawful behavior. (Hudson v. Michigan (2006) __ U.S. __, __ [126 S.Ct. 2159; 165 L.Ed.2d 56, 80] (dis. opn. of Breyer, J.).)

The rule has its limits and courts must be careful to prevent application of the inevitable discovery exception from subverting the safeguards of the exclusionary rule because there is much danger that a mechanical application of the doctrine will encourage unconstitutional shortcuts. (People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 681.) For this reason, no court has accepted an invitation to apply the inevitable discovery doctrine to avoid suppression of evidence seized without a warrant based simply on a showing (without more) that police could have obtained a valid warrant had they sought one. (U.S. v. Reilly (9th Cir. 2000) 224 F.3d 986, 994-995; People v. Robles, supra, 23 Cal.4th at pp. 800-801; People v. Superior Court (Walker), supra, 143 Cal.App.4th at pp. 1215-1216; In re Rudy F., supra, 117 Cal.App.4th at pp. 1135-1137; compare People v. McDowell (1988) 46 Cal.3d 551, 564; and see Hudson v. Michigan, supra, 165 L.Ed.2d at p. 80.)

B.

Here, the Attorney General relies on Harolds concession that there was probable cause to search the hotel room, and contends that the officers would most probably have been able to obtain a search warrant had they attempted to get one and therefore discovered the glass pipe. Based on the authorities discussed above, the availability of a warrant is insufficient to satisfy the prosecutors burden to establish that the illegally seized evidence was admissible (People v. Robles, supra, 23 Cal.4th at pp. 800-801), and there was no other basis for the search. Accordingly, a defense motion to suppress would have been granted, which means Harold suffered prejudice as a result of his attorneys failure to make the motion. (Strickland v. Washington (1984) 466 U.S. 668, 684-685, 693-694; People v. Ledesma (1987) 43 Cal.3d 171, 217.)[4]

II.

We agree with Harold that a condition of probation (No. 21) requiring him to stay away from places where [drug] users congregate is constitutionally overbroad because it does not include a knowledge requirement.[5] (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115-1117; see In re Justin S. (2001) 93 Cal.App.4th 811, 816; In re Kacy S. (1998) 68 Cal.App.4th 704, 712-713; People v. Garcia (1993) 19 Cal.App.4th 97, 102.)

Condition 21 should be modified to provide: Do not knowingly use or possess narcotics, controlled substances, poisons, or related paraphernalia, and stay away from places where persons you know to be users congregate.

DISPOSITION

The petition is granted; the August 23, 2005, dispositional order is reversed insofar as it sustains count 2 of the petition, and is modified so that (1) condition 21 includes a knowledge requirement and (2) the maximum term of confinement is reduced to three years; as modified, the order is affirmed and the cause is remanded to the juvenile court with directions to issue a corrected order reflecting these modifications.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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[1]Subsequent undesignated section references are to the Welfare and Institutions Code.

[2]Harold (who testified in his own defense) confirmed that he had been staying at the Days Inn with Adam (in a room rented for him by his Alcoholics Anonymous sponsor, Scott B., who was purportedly trying to adopt Harold), and said he had just met the other two young men in the room.

[3]The detention report accompanying the petition stated that Harold had been a dependent of the court since age 12 ( 300 et seq.), had run away from several group homes, and had mental health issues which were largely unaddressed due to his continuous AWOL status. Harold had also been arrested before (for battery and reckless driving) and, at the time of the current incident, was the subject of an outstanding warrant. He admitted methamphetamine and other substance abuse.

[4]Given this decision, we need not discuss Harolds contentions on appeal that (1) his motion to dismiss count 2 should have been granted ( 701.1), and (2) there was insufficient evidence that he possessed the glass pipe.

[5] This issue is currently pending before the Supreme Court. (In re Sheena K. (2004) 116 Cal.App.4th 436, review granted June 9, 2004, S123980; see also In re William R. (2005) 133 Cal.App.4th 1004, review granted Feb. 22, 2006, S139281.)