P. v. Gamazon

Filed 8/7/06 P. v. Gamazon CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments of the Superior Court of San Diego County, Wesley R. Mason, Judge. Affirmed.

In this case, incident to performing a parole search, a police officer employed a ruse in order to lure the parolee out of his apartment. Once the parolee was out of the apartment and safely detained, other police officers performed a search of his apartment and discovered what they believed was methamphetamine. The officers then obtained a telephonic search warrant and conducted a thorough search of the premises. That search revealed more methamphetamine and led to the prosecution and conviction of the parolee and his roommate on charges they were in possession of methamphetamine for sale.

Contrary to the arguments the parolee and his roommate assert on appeal, the ruse employed by the police officer did not invalidate the officers' later search of the premises. The law is well established that where, as here, officers have a right to enter a dwelling without permission, their employment of ruse in order to do so peacefully does not implicate any Fourth Amendment interest. (See People v. McCarter (1981) 117 Cal.App.3d 894, 906.)

FACTUAL AND PROCEDURAL BACKGROUND

In the last six months of 2004 detectives with the San Diego Police Department conducted surveillance of appellant Rowel Ramos Gamazon, a parolee. The detectives were aware of Gamazon's parole status and suspected he was engaged in the sale of methamphetamine. Based on their surveillance, the detectives believed Gamazon resided in apartment 302 at 1546 Sonora and drove a green Ford Explorer.

On the evening of December 16, 2004, the detectives were preparing to conduct a parole search of Gamazon's apartment. They had earlier observed Gamazon leave the apartment, go to the green Ford Explorer and then return to the apartment. In order to verify that Gamazon was still present in the apartment and to make sure that the parole search could be performed safely, one of the detectives decided to use a ruse to lure Gamazon out of the apartment and detain him. The detective, dressed in plain clothes, knocked on the apartment door and told Gamazon's roommate, appellant Rizaldee Malagayo Ablao, that he had bumped into the green Ford Explorer and wanted to talk to the owner of the vehicle. The detective told Ablao he did not have insurance and he wanted to take care of the damage without there being any record of the incident. Ablao called to Gamazon, Gamazon came to the apartment door, the detective repeated the ruse to Gamazon and the detective and Gamazon went to the vehicle where Gamazon was detained.

Following Gamazon's detention, detectives returned to the apartment and advised Ablao they were there to perform a parole search. Initially, the officers went to each room of the three-bedroom apartment to determine whether anyone else was there. In conducting the initial search, the detectives discovered what they believed was methamphetamine and a scale. Upon making this discovery, the detectives halted their search and applied for a telephonic search warrant. When the search warrant was approved, the detectives then conducted a complete search of the apartment and found a digital scale, a pipe used to smoke methamphetamine and a total of 140.16 grams of methamphetamine in three locations.

Gamazon and Ablao were both charged with possession of methamphetamine for sale. The information alleged both had prior felony convictions and that Gamazon had suffered three prior prison terms and prior convictions for possession of methamphetamine for sale. The appellants moved to suppress the evidence seized at the apartment and their motion was denied. Pursuant to a plea agreement both then entered guilty pleas. Under the terms of the plea agreement, both Gamazon and Ablao waived their right to appeal from the order denying their motion.

At his sentencing hearing, Gamazon, acting in pro. per., moved to withdraw his plea. The sentencing judge, Judge Mason, had not heard the motion to suppress and evidently was not familiar with the terms of Gamazon's plea agreement. Judge Mason denied the motion to withdraw the plea and, responding to Gamazon's arguments about the lawfulness of the search, stated: "If there's any remedy, it would be to appeal the 1538.5 ruling by Judge Green, and which, of course, he has a right to do."

Gamazon and Ablao applied for and received certificates of probable cause.

I

As we indicated at the outset, Gamazon and Ablao argue that in using a ruse to lure Gamazon out of the apartment, the detectives violated their respective Fourth Amendment rights. The initial difficulty we have with their argument is that the plea forms they both executed state that each waived the right to appeal from the order denying their motion to suppress. As the People point out, such waivers are valid and enforceable. (See People v. Panizzon (1996) 13 Cal.4th 68, 79-80.) In particular, in finding that a waiver of the right to appeal was knowing, intelligent and voluntary, a court may rely upon a defendant's validly executed waiver form, such as the ones which appear in this record. (Id. at p. 83.)

Because there is nothing in the record which impeaches the defendants' waivers of their right to appeal, we are not required to reach the merits of their claims. (People v. Panizzon, supra, 13 Cal.4th at pp. 84, 89.) However, because the parties have fully briefed the merits of the Fourth Amendment claims and the issue might be raised in a collateral attack on appellants' convictions, the interests of judicial economy will be best served by considering their constitutional claims at this juncture.

II

In People v. McCarter, supra, 117 Cal.App.3d 894 a police officer attempted to use a ruse in executing a search warrant. When the ruse did not work, the police announced their presence and forced their way into the defendant's apartment. In finding that the use of a ruse did not taint the later search, the court, relying on a long line of authority, stated: "Employment of a ruse to obtain consent to enter is immaterial where officers have a right to enter and search without permission pursuant to a valid search warrant. [Citations.]" (Id. at p. 906, italics added.)

Here, the detectives were aware of Gamazon's parole status and suspected him of unlawful activity. Their knowledge of Gamazon's status and the fact they were not engaged in an arbitrary, capricious or harassing pursuit of him gave the detectives the right to enter Gamazon's residence without his permission. (Samson v.California (June 19, 2006, No. 04-9728) ___ U. S. ___ [2006 74 U.S. Law Week 4349]; People v. Hunter (June 27, 2006, D046986) ___ Cal.App.4th ___ (petn. for review filed July 28, 2006, S145412; see People v. Reyes (1998) 19 Cal.4th 743, 752; People v. Sanders (2003) 31 Cal.4th 318, 333; People v. Middleton (2005) 131 Cal.App.4th 732, 738.) The detectives' right to search the apartment was not diminished by the fact Gamazon shared the apartment with Ablao. (See People v. Robles (2000) 23 Cal.4th 789, 798.) Thus, the detectives were in the same position as the police officer in People v. McCarter: they had the right to enter Gamazon's apartment and in doing so they could employ a ruse as a means of protecting themselves and the occupants of the apartment, including Gamazon.

The facts in this record are in contrast to the ones considered in People v. Reyes (2000) 83 Cal.App.4th 7, 12-13, upon which appellants rely. In that case officers went to the apartment of a parolee who they suspected of engaging in narcotics activity. In addition to searching the parolee's residence, the officers also planned to search anyone they could lure outside. They successfully lured the defendant, who was not a parolee, out of the apartment, detained him, and searched his pockets where they found methamphetamine. There was some dispute about whether he consented to the search of his person. Nonetheless, the court found that the use of a ruse to detain an individual who was not subject to search conditions or suspected of criminal activity was unconstitutional. The court stated: "[The defendant] was in a private apartment where he had every right to be. The officers had no warrant for his arrest or even probable cause to arrest him, the distinguishing feature in many of the cases in which ruses have been upheld. But, most importantly, they lured him outside with a trick unrelated to criminal activity, one that undermined the voluntariness of the consent. Put another way, the net used would have scooped up the innocent as well as the guilty; and this particular way of fishing for criminals is inconsistent with the state's obligation to respect the privacy of its citizens." (People v. Reyes, supra, 83 Cal.App.4th at p. 13, italics added.)

Here, in contrast to the defendant in People v. Reyes, supra, 83 Cal.App.4th 7, the detectives had every right to search both Gamazon's person as well as his apartment and the incidental use of a ruse as means of doing so safely in no manner interfered with Gamazon's limited expectations of privacy. (See People v. Reyes, supra, 19 Cal.4th at p. 751.)

Judgments affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J

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