Filed 7/26/17 P. v. Closs CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL CLOSS,

Defendant and Appellant.

F072418

(Super. Ct. No. BF157626A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey and John S. Somers, Judges.†
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Michael Closs was charged with two counts of annoying or molesting a child under 18 years of age (Pen. Code, § 647.6, subd. (c)(2)), inter alia. In connection with both counts, the information alleged he was previously convicted of committing a lewd or lascivious act upon a child under 14 years of age, a qualifying “strike” offense (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), inter alia. Defendant filed a motion to suppress evidence, which was denied. Thereafter, he pled no contest to one count of annoying or molesting a child under 18 years of age and admitted the prior conviction. In exchange, the remaining charges were dismissed. Defendant was sentenced to eight years.
On appeal, defendant contends the trial court erroneously denied his suppression motion. For the reasons set forth below, we disagree and affirm the judgment.
BACKGROUND
On April 27, 2015, pursuant to section 1538.5, defendant filed a motion to suppress “[a]ny and all images viewed on the SD card obtained by detectives”; “[a]ny and all observations by detectives of the SD card”; and “[a]ny and all tangible evidence collected inside [defendant’s] house.”
At the May 13, 2015, motion hearing, Detective Nathan Anderberg of the Bakersfield Police Department gave the following testimony:
On the morning of October 7, 2014, Anderberg was contacted by Kimmie Holiday, who revealed she “had information into [defendant’s] possession of . . . child pornography.” She specified a friend who lived on defendant’s residential property entered his bedroom and removed an SD card from his mobile phone. Using a laptop computer, the friend and Holiday accessed the card and viewed video footage of a “four to five year[] old” girl in a swimsuit exposing her “pubic and buttocks area” at defendant’s behest. When asked by Anderberg to disclose the friend’s identity, Holiday refused, citing possible retaliation. However, she noted the friend was “attempting to move out . . . .” Before going home, Holiday assured she would disclose the friend’s identity once she verified the friend left the premises.
Anderberg did not hear back from Holiday for several hours. Thereafter, he visited her home to ask her again to disclose the friend’s identity. Dorothy Kennedy answered the door, informed Anderberg that Holiday “wasn’t able to speak with [him],” and handed over an SD card. Kennedy stated the card was “the [SD] card from the phone.” Believing “there was a strong possibility” this card was the same one that Holiday’s friend removed from defendant’s phone, Anderberg accessed it and viewed video footage “similar to what [Holiday] described to [him].” He subsequently obtained a warrant to search defendant’s residence. At no point did Anderberg instruct Holiday, Holiday’s friend, or Kennedy to search or seize the SD card.
Following the hearing, the court summarily denied defendant’s motion.
DISCUSSION
I. Standard of review.
“ ‘[I]t is settled that in ruling on a motion [to suppress] under section 1538.5 the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences, and hence that on review of its ruling by appeal or writ all presumptions are drawn in favor of the factual determinations of the superior court and the appellate court must uphold the superior court’s express or implied findings if they are supported by substantial evidence.’ [Citation.]” (People v. Needham (2000) 79 Cal.App.4th 260, 265.) “Substantial evidence is ‘ “evidence which is reasonable, credible, and of solid value.” ’ [Citation.]” (People v. Bohana (2000) 84 Cal.App.4th 360, 368.) “The reviewing court then independently reviews the superior court’s determination that no Fourth Amendment violation occurred in conducting the search.” (People v. Needham, supra, at p. 265.) “If the search or seizure violated the Fourth Amendment, then the evidence seized as a result of that search must be excluded.” (Ibid., citing Mapp v. Ohio (1961) 367 U.S. 643, 655.)
II. Analysis.
“The Fourth Amendment provides ‘[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .’ [Citation.] This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. [Citation.]” (People v. Camacho (2000) 23 Cal.4th 824, 829-830.) The Fourth Amendment “ ‘contains no provision expressly precluding the use of evidence obtained in violation of its commands’ ” (Herring v. United States (2009) 555 U.S. 135, 139), but the United States Supreme Court “establish[ed] an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial” (ibid.). The exclusionary rule prohibits not only “[t]he introduction into evidence of materials seized and observations made during an unlawful search” (People v. Lamas (1991) 229 Cal.App.3d 560, 568) but also “the introduction into evidence of materials and testimony which are the products or indirect results of the illegal search, the so-called ‘fruit of the poisonous tree’ doctrine” (ibid.).
“The Fourth Amendment . . . applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies . . . .” (Burdeau v. McDowell (1921) 256 U.S. 465, 475.) Thus, “[t]he conduct of a person not acting under the authority of a state is not proscribed by the Fourth or Fourteenth Amendments of the federal Constitution.” (People v. Superior Court (1969) 70 Cal.2d 123, 128-129.) “The Fourth Amendment’s prohibition against unreasonable searches and seizures does not apply to searches by private citizens, even if the private citizens act unlawfully, unless the private citizen can be said to be acting as an agent for the government.” (People v. Wilkinson (2008) 163 Cal.App.4th 1554, 1564 (Wilkinson); see Burdeau v. McDowell, supra, at p. 476 [“The papers having come into the possession of the Government without a violation of petitioner’s rights by governmental authority, we see no reason why the fact that individuals, unconnected with the Government, may have wrongfully taken them, should prevent them from being held for use in prosecuting an offense where the documents are of an incriminatory character.”].) “Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now nonprivate information . . . .” (United States v. Jacobsen (1984) 466 U.S. 109, 117; accord, People v. Michael E. (2014) 230 Cal.App.4th 261, 268.) “The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.” (United States v. Jacobsen, supra, at p. 117.) In other words, “the Fourth Amendment’s protections do apply to a government search conducted after a private search to the extent the government’s inquiry is more intrusive or extensive than the private search.” (Wilkinson, supra, at p. 1570.)
Here, the record demonstrates that Holiday’s friend acted in a private capacity when she entered defendant’s bedroom and removed the SD card from his mobile phone. In addition, the friend and Holiday acted in a private capacity when they accessed the card and saw the incriminating video footage. Anderberg did not affirmatively encourage, instigate, or initiate the search of defendant’s bedroom, phone, or SD card or seizure of the SD card. The detective was unaware of these actions and the footage until Holiday voluntarily told him about them. (See U.S. v. Walther (9th Cir. 1981) 652 F.2d 788, 791-792 [“The government must be involved either directly as a participant or indirectly as an encourager of the private citizen’s actions before we deem the citizen to be an instrument of the state. [Citations.] The requisite degree of governmental participation involves some degree of knowledge and acquiescence in the search.”].) After this initial encounter, Anderberg went to Holiday’s residence to ask her to disclose the friend’s identity. There, without any prompting, Kennedy handed over an SD card, which she described as “the [SD] card from the phone.” Anderberg accessed the card and found the footage that Holiday had watched, indicating this card was the one taken from defendant’s phone. (See Wilkinson, supra, 163 Cal.App.4th at p. 1572 [“[T]o the extent [the police officer] viewed images on the compact discs that [the private searcher] had already viewed, his search was within the scope of the private search . . . .”]; cf. People v. Michael E., supra, 230 Cal.App.4th at p. 275 [where private searcher provided but did not view materials stored on USB flash drive, subsequent search of said flash drive by law enforcement exceeded scope of private search].) The Fourth Amendment was not implicated under these circumstances. Therefore, denial of defendant’s suppression motion was proper.
DISPOSITION
The judgment is affirmed.