P. v .Bachtel

Filed 7/24/07 P. v .Bachtel CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Jesse I. Rodriguez, Judge. Affirmed.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

After his motion to suppress evidence pursuant to Penal Code section 1538.5 was denied, defendant and appellant David Bachtel (defendant) pleaded no contest to possession of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a). The trial court placed defendant on formal probation for three years under various terms and conditions. On appeal, defendant contends that the trial court erred when it denied his motion to suppress evidence. We affirm.

BACKGROUND

I. The Prosecutions Evidence at the Suppression Hearing

At the outset of the suppression hearing, the parties stipulated that there was no arrest or search warrant. Then, United States Coast Guard Operations Petty Officer Nathan Peters testified that he and other Coast Guard officers conducted vessel inspections[1] of 35 vessels at the Island Yacht Marina pursuant to 14 U.S.C. section 89(a)[2]. At about 11:30 in the morning, Petty Officer Peters knocked on the door of the houseboat in slip number 10 and defendant answered. Petty Officer Peters identified himself and told defendant that he was there to make sure that defendants vessel was in compliance with all federal laws and regulations. Defendant allowed Petty Officer Peters into his houseboat, responding with words similar to Sure. No problem. Petty Officer Peters inspected the houseboat for about 30 minutes and found that everything seemed per code. The only other person on the houseboat when Petty Officer Peters boarded was a woman the petty officer could not identify by name.

According to Petty Officer Peters, a vessel is a craft that is capable of transportation on water. Defendants houseboat was connected to the dock by mooring lines and a little bridge or gateway. Petty Officer Peters was sure the houseboat was hooked up to utilities. He did not find an engine on the houseboat and the houseboat did not have a sail. Petty Officer Peters understood defendants houseboat to be a vessel because it was capable of transportation on water defendant could have put an outboard motor on it if he wanted. Petty Officer Peters had boarded many houseboats before some had engines and some did not. With his training and knowledge from being in the Coast Guard and performing boardings, Petty Officer Peters was definitely of the opinion that defendants houseboat was a vessel.

Two United States Drug Enforcement Administration (DEA) special agents, James McNamee and Vijay Rathi, and a Los Angeles Police Department canine officer accompanied Officer Peters to defendants houseboat. Special Agent McNamee testified that he did not make the initial approach to the houseboat; he stood back. Immediately after the Coast Guard officers entered defendants houseboat, Special Agents McNamee and Rathi approached defendant and Special Agent McNamee said, Id like to search your vessel for narcotics, large sums of currency or weapons. Do you mind if I came [sic] on board[?] Defendant responded, Absolutely. Special Agent McNamee informed defendant that there was a narcotics canine present and asked if the dog could be brought on board. Defendant responded, Go right ahead. Special Agent McNamee asked defendant if the houseboat was his and defendant replied that it was.[3]

Special Agent McNamee and others boarded and searched the houseboat. Special Agent McNamee found a pipe and a small amount of suspected crystal methamphetamine in a little can on the nightstand in the bedroom. Defendant was standing just inside the bedrooms doorway when Special Agent McNamee discovered the suspected crystal methamphetamine. The agent showed defendant what he had found and defendant said, I Oh, shit. I cant go to jail. I just brokered a deal I dont know how long ago for a quarter pound of methamphetamine. I can get you approximately two to three pounds.

Special Agent Rathi testified that he was present when Special Agent McNamee asked defendant for permission to search his houseboat. According to Special Agent Rathi, defendant said, in substance, Yeah. Sure. Go ahead. No problem. Defendants response was essentially the same when Special Agent McNamee asked defendant for permission to run the drug detection canine through the houseboat. Special Agent Rathi described defendant as extremely cooperative. According to Special Agent Rathi, when defendant was confronted with the suspected crystal methamphetamine, defendant stated that he could not go to jail, he offered to provide information about his source of supply, and he said something about having recently brokered a deal for a quarter pound of methamphetamine.

II. Defendants Evidence at the Suppression Hearing

Defendant testified that he purchased and moved into the houseboat in February, 2005. Judy England, defendants common-law wife or girlfriend, lived with defendant on the houseboat. Defendants houseboat was 14 feet, nine inches wide and approximately 51 feet, six inches long. It did not have a rudder or any means of propulsion such as an engine or a sail. The houseboat was attached to the dock its gang plank or gangway was bolted to the dock, it was connected to the dock with six dock lines, and it was permanently hooked up to utilities.

At 9:00 a.m. on December 1, 2005, defendant answered a knock on his door. When defendant opened the door, two Coast Guard officers stated that they had received an anonymous telephone call about a sewage spill in the immediate vicinity of defendants houseboat and that they were there to investigate. Defendant responded that his sewage system was brand new and that it was sealed with virtually no way for it to pump into the water. He also informed the officers that there was no need to board his vessel because his sewage system could only be viewed from the outside of the houseboat. Defendants dog was going crazy and the Coast Guard officers asked defendant to tie up the dog. Defendant attempted to take his dog to the back of the houseboat, but was told to tie up the dog at the side of the houseboat. Then, as defendant stood at his front door with his arm on the door frame and his hand on the doorknob, a Coast Guard officer pulled defendants hand down, pushed him aside, and entered his houseboat.

Defendant did not tell the Coast Guard officer that he could enter the houseboat. When the officer got past defendant, defendant said, You guys cant come in here. We just woke up. My wife is back there, and she has no clothes on. The Coast Guard officers kept walking. Defendant again told the officers that England was not dressed, and they stopped and came back towards the living room. England testified that she heard defendant tell the officers that they could not come in because she was not dressed. At an officers direction, defendant went outside. A female Coast Guard officer entered and watched as England got dressed. England was told to go outside, where she remained until 12:30 p.m. England had not given the officers permission to enter the houseboat. After defendant and England exited the houseboat, the officers closed the door.

Special Agents McNamee and Rathi told defendant that they were going to enter his houseboat and search it. Defendant was dumbfounded, and did not respond. Defendant did not give the agents permission to enter and search his houseboat. The agents also told defendant that they were going to bring some narcotics dogs down.

Defendants houseboat had a video camera on the front door, and one on every wall outside. Defendant had the video cameras on record at all times. The DEA agents asked defendant how to turn off the video cameras. Defendant turned them off. The agents removed the tape. When defendant next pushed the record button four days later, he discovered that the tape was gone and realized that the agents had taken it.

At some point, a DEA agent told defendant that they had found a glass pipe and something that looked like methamphetamine. The agent did not show defendant what had been found. Defendant denied having methamphetamine in his houseboat and stated he had no knowledge that there was a methamphetamine pipe in the houseboat. He also denied saying that he could not go to jail or that he had brokered a deal for a quarter pound, and I can get you two pounds of methamphetamine.

Chet Perkowski, who had known defendant for about 20 years, testified he arrived at defendants houseboat at about 9:30 a.m., on December 1, 2005, to give defendant a ride to an appointment in Los Angeles. As Perkowski descended the gangway to the marina, he saw two 20-foot Coast Guard gun boats parked next to the office and quite a few Coast Guard officers on the dock. Perkowski asked the helmsman of one of the boats what was going on. The officer stated that he did not know, but that he had never seen anything like it.

Defendant was outside of his houseboat when Perkowski arrived. Perkowski overheard a DEA agent tell defendant that if he cooperated, he would not have to go to jail that day. Defendant asked what the agent wanted. The agent replied, If you could hook us up with a couple of pounds, maybe we could work something out. Defendant asked Perkowski if he should say anything to them or if he should call his attorney. Perkowski replied that if he were defendant, he would call his attorney. Defendant asked the agent if he could call his attorney. The agent responded, You can call your fing attorney when I have the time.

Kevin Enright testified he lived on a yacht 25 feet behind defendants houseboat. There were no boats or houseboats between Enrights yacht and defendants houseboat. Defendant worked at the marina where Enright lived, but Enright had no relationship with him. On December 1, 2005, Coast Guard officers came to Enrights yacht and said that they were inspecting bathrooms on the boats and wanted to board. Enright invited them on board. Enright advised the officers that he had a bathroom in the front, but it was locked and he could not find the key. The officers said, Thats no problem, and left. The officers went to the boat across from Enrights yacht, talked to the owner, and walked away.

Enright was curious about what the Coast Guard officers were doing and trailed them, by about five minutes, to defendants houseboat to find out what was going on. Enright saw defendant tie up his dog and a Coast Guard officer and people in plain clothes with guns standing at defendants door. Defendant went back into his houseboat, but a bald-headed man pushed defendant out of the way saying, No, you cant come in here. They pushed defendant out of the way and entered the houseboat. A man in uniform walked up to Enright and asked what his business was there. Enright responded that he was watching what was going on. The man told Enright that he better move on. Enright returned to his boat.

Marie Cullaway testified she lived at the same marina as defendant. Her boat was about 20 feet from defendants houseboat. There were no boats between Cullaways boat and defendants houseboat. Cullaway knew defendant as a friend and as the dock manager. On December 1, 2005, Cullaway was awakened by defendants barking dog. Cullaway looked out the window to see why the dog was barking and saw defendant and a number of people in uniform standing outside. Cullaway saw Judy come outside. Judy was dressed like she would not be dressed normally to be out in public. Everything waiv[ed] a red flag at Cullaway. Cullaway could not hear what the officers were saying to defendant but believed, by the officers body language, that the officers treated defendant rudely and roughly.

III. The Trial Courts Ruling on Defendants Motion to Suppress Evidence

At the conclusion of the witness testimony at the suppression hearing, defense counsel argued that defendant, England, and Enright all testified that defendant did not give the officers his consent to search his houseboat. To the contrary, defense counsel argued, defendant told the officers that they could not enter his houseboat and defendants testimony was corroborated by England and Enright. [B]ased on that testimony and the testimony of the other witnesses, defense counsel argued, it is our position that valid legal consent was not given for those officers to enter that boat. Later, defense counsel stated, Just to clarify my position, it is my position that the defendant did not give consent to anyone. Defense counsel also argued that the houseboat was not a vessel and thus not subject to a search without a warrant as a vessel. Defense counsel further argued even if the trial court accepted the version of events set forth by Petty Officer Peters (defense counsel asserted that the officer did not testify that he had asked for and been given consent to enter) and the DEA agents, the initial entry by Coast Guard officers was illegal and any consent given to the DEA agents was fruit of the poisonous tree.

The prosecutor argued that defendant had consented to have the Coast Guard officers and DEA agents search his houseboat, but conceded that any consent to allow the Coast Guard officers to search did not confer consent upon the DEA agents to search. The trial court ruled that even if the Coast Guard officers were justified in entering the houseboat, the DEA agents needed a warrant or consent to enter because the suspected crystal methamphetamine was not in plain sight. Nevertheless, the trial court found that the Coast Guard officers had defendants consent to enter.

As to consent given to the DEA agents to search the houseboat, the trial court found, based on Enrights description of where he was, Enright was not in a position to hear whether the agents asked for consent and whether defendant responded. The trial court held that Special Agent McNamee had obtained defendants valid consent to search his houseboat and, therefore, denied defendants motion to suppress the evidence found in the search of the houseboat. The trial court explained that the motion turned on the issue of credibility. It had weighed the credibility of both sides and found that the officers credibility outweighed the credibility of the other witnesses.

DISCUSSION

Defendant contends that the trial court erred in denying his motion, pursuant to Penal Code section 1538.5, to suppress evidence found in the search of his houseboat because the trial court failed to consider the totality of circumstances in ruling that defendant voluntarily consented to that search. The trial court did not err.

I. Standard of Review

In reviewing the trial courts denial of a motion to suppress evidence, we view the record in the light most favorable to the trial courts ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial courts application of the law to the facts. (People v. Jenkins (2000) 22 Cal.4th 900, 969 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) In conducting our independent review, we are concerned with the correctness of the ruling, not the trial courts reasoning. (People v. Clark (1993) 5 Cal.4th 950, 993, fn. 19 [22 Cal.Rptr.2d 689, 857 P.2d 1099]; People v. Ellis (1993) 14 Cal.App.4th 1198, 1201 [18 Cal.Rptr.2d 284].) (People v. Zichwic (2001) 94 Cal.App.4th 944, 950-951.) The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. Under the well-established principles of appellate review, all presumptions favor proper exercise of that power and the courts finding must be upheld if . . . it is supported by substantial evidence. [Citation.] (People v. Bloom (1983) 142 Cal.App.3d 310, 316.)

II. Application of Relevant Principles

The Fourth Amendment protects an individuals reasonable expectation of privacy against unreasonable intrusion on the part of the government. A warrant is required unless certain exceptions apply, including the exception that permits consensual searches. [Citations.] (People v. Jenkins (2000) 22 Cal.4th 900, 971.) A consent to search must be voluntary. (Id. at p. 973.) Whether consent was given voluntarily or was the product of coercion on the part of the searching officers is a question of fact to be determined from the totality of the circumstances. (Ibid. citing Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227; People v. Shandloff (1985) 170 Cal.App.3d 372, 383.) The People have the burden of establishing by a preponderance of the evidence that a defendant gave consent and that his consent was the product of his free will and not a mere submission to an express or implied assertion of authority. (People v. James (1977) 19 Cal.3d 99, 106; see also id. at p. 106, fn. 4 [standard of proof is preponderance of the evidence].)

Substantial evidence demonstrates that defendant voluntarily consented to a search of his houseboat and that his consent was not the submission to an express or implied assertion of authority. (People v. James, supra, 19 Cal.3d at p. 106 & fn. 4.) Petty Officer Peters testified that when he told defendant that he was there to make sure that defendants vessel was in compliance with all federal laws and regulations, defendant allowed him into his houseboat, responding with words similar to Sure. No problem. Special Agent McNamee testified that when he asked defendant for permission to search his houseboat for narcotics, large sums of currency or weapons, defendant responded, Absolutely. Special Agent McNamee also testified that when he asked defendant for permission to bring a narcotics canine on defendants houseboat defendant responded, Go right ahead. Special Agent Rathi corroborated Special Agent McNamees testimony. Defendant offered contradictory evidence. Defendant testified that he never gave his consent to anyone to enter or search his houseboat and offered testimony corroborating or supporting that testimony. Thus, the trial court was presented with contradictory testimony and a credibility contest that it resolved in the Peoples favor. Such credibility contests are resolved in the trial court. (People v. Bloom, supra, 142 Cal.App.3d at p. 316.)

Defendant appears to argue that the trial court did not properly consider the totality of the circumstances. The trial court heard all the witnesses. Defendant testified that he did not consent to any entry and search of his houseboat, not that he gave his consent but that his consent was coerced or involuntary. Defendant is bound by his testimony. He may not testify at the suppression hearing, I did not consent, then, when that argument is found unavailing, argue that his consent was involuntary.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

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Analysis and review provided by Spring Valley Property line Lawyers.

[1] The prosecution questioned its witnesses about events that transpired on November 1, 2005. As discussed below, the defense questioned its witnesses about events that transpired on December 1, 2005. The information alleges defendant committed the charged offense of possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)) on December 1, 2005. There is no explanation for the discrepancy.

[2] 14 U.S.C. section 89(a) provides:

The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ships documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both, shall be seized.

[3] At some point, Special Agent McNamee obtained information through the Los Angeles Clearing House, a state-run investigative data base, that David Keith Bachtel was the registered owner of the houseboat in slip number 10 at the Island Yacht Marina.