P. v. Gil

Filed 10/5/06 P. v. Gil CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

A jury convicted Arcelia Esperanza Gil of unlawful possession of access card account information (Pen. Code, § 484e, subd. (d)),^[1] unlawful possession of access cards (id. at subd. (a)), unlawful possession of a blank check (§ 475, subd. (b)), and receiving stolen property (§ 496, subd. (a)).

On appeal, Gil contends the trial court erred in denying her motion to suppress evidence because the police violated the "knock-and-announce rule." We affirm.

FACTS

Port Hueneme police officers stopped Jimmy Prizzi because the van he was driving displayed no registration tags. Prizzi told the officers his driver's license was in his room at the Moonlite Inn. Prizzi gave the officers a key to his room and permission to search it.

Officers went to the room and entered with the key. They knocked and announced, "Police Department," as they were opening the door. They did not wait to enter. Gil was the only person in the room. She was sitting on the bed. A glass pipe commonly used for smoking methamphetamine was on the nightstand next to the bed. Police Sergeant Robert Gager asked Gil whether she had any drugs. Gil said she did not. The only thing in the room she identified as hers was her purse. Gager looked in Gil's purse and found several credit cards, driver's licenses, social security cards and checks in other persons' names. The police located Prizzi's driver's license and he was released.

DISCUSSION

Other than in exceptional circumstances, the police are required prior to making a forcible entry into a residence to knock on the door, announce their presence, and wait a reasonable time before entry. (Wilson v. Arkansas (1995) 514 U.S. 927; United States v. Banks (2003) 540 U.S. 31.) Gil contends the police officers' failure to wait a reasonable time between knocking and entering the motel room requires suppression of the evidence found there.

Hudson v. Michigan (2006) 547 U.S. --- [126 S.Ct. 2159, 165 L.Ed.2d 56], disposes of Gil's contention. There the police obtained a warrant to search the defendant's residence for drugs and firearms. When the police arrived to execute the warrant, they announced their presence but waited only three to five seconds before entering the home. The police found drugs and a firearm, and the defendant was charged with the unlawful possession of both. The defendant contended the evidence should be suppressed because the police violated the knock-and-announce rule.

The Supreme Court determined that the exclusionary rule did not apply. The Court reasoned that the exclusionary rule protects a person's interest in shielding his person, house, papers, and effects from the government scrutiny. (Hudson v. Michigan, supra, 547 U.S. --- [126 S.Ct. at p. 2165].) The knock-and-announce requirement, however, protects different interests. (Ibid.) Those interests are: the protection of human life and limb, because a sudden entry might provoke violence in supposed self-defense by a surprised resident; the protection of property, because the rule gives a resident the opportunity to comply rather than have his door broken in; and the protection of privacy and dignity, because the rule gives the resident time to prepare for entry by the police. (Ibid.) The Court concluded: "What the knock-and-announce rule has never protected, however, is one's interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable." (Ibid.)

Gil attempts to distinguish Hudson on the ground that there the police had a warrant. She points to the court's statement in Hudson that, "Whether th[e] preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the [contraband] inside the house." (Hudson v. Michigan, supra, 547 U.S. --- [126 S.Ct. at p. 2164].) Gil points out that here the police had no warrant. She claims that if the police had waited for a response before entering, she could have refused to permit entry. She cites Georgia v. Randolph (2006) 246 U.S. --- [126 S.Ct. 1515, 164 L.Ed.2d 208], for the proposition that her refusal to permit entry invalidates the warrantless search.

But the quote from Hudson on which Gil relies is taken out of context. The court acknowledged in the quote that because the police had a warrant, there was no causal connection between the failure to knock-and-announce and the seizure of the evidence. In the next sentence, however, the court stated, "But even if the illegal entry here could be characterized as a but-for cause of discovering what was inside, we have 'never held that evidence is the "fruit of the poisonous tree" simply because "it would not have come to light but for the illegal actions of the police."' [Citations.]" (Hudson v. Michigan, supra, 547 U.S. --- [126 S.Ct. at p. 2164].)

Plainly, the court is stating that its decision would be the same even if, as Gil argues here, there is a causal connection between the failure to knock-and-announce and the seizure of the evidence. The holding in Hudson is based on the court's determination that the interests protected by the knock-and-announce rule have nothing to do with the seizure of evidence. That is true whether or not the police have a warrant. Thus lack of a warrant here is not a proper basis for distinguishing Hudson.

Moreover, Gil's reliance on Randolph is misplaced. In Randolph, a wife gave the police permission to search the home she occupied with her husband. Husband immediately objected to the search. The court held, "[A] [w]arrantless search of a shared dwelling for evidence over the express refusal of consent by [a] physically present resident cannot be justified as reasonable as to him on [the] basis of consent given to [the] police by another resident . . . . [Citations.]" (Georgia v. Randolph, supra, 246 U.S. --- [126 S.Ct. at p. 1527].)

In so holding, Randolph distinguished United States v. Matlock (1974) 415 U.S. 164, and Illinois v. Rodriguez (1990) 497 U.S. 117, where searches conducted with the unilateral consent of one co-occupant were held to be valid against another co-occupant. In neither case did the defendant expressly object. In Matlock, the defendant had no opportunity to object because he was not present. More to the point here, in distinguishing Rodriguez on the basis of the cotenant's failure to object, the court stated "defendant was actually asleep in the apartment, and the police might have roused him with a knock on the door before they entered with only the consent of an apparent co-tenant." (Georgia v. Randolph, supra, 246 U.S. --- [126 S.Ct. at p. 1515].) Randolph invalidates a search conducted with the permission of a cotenant only where "a potential defendant with self-interest in objecting is in fact at the door and objects . . . ." (Ibid.)

Randolph makes it clear it is not enough that the defendant could have objected prior to entry by the police. The defendant must actually be at the door and expressly object for a cotenant's consent to be invalid as to the defendant. Randolph's discussion of Rodriguez makes it particularly clear it is irrelevant that the defendant might have objected had the police knocked and waited a reasonable time prior to entry.

Here Gil does not contest that Prizzi had the authority to grant permission to the police to enter the motel room. Nor does she claim to have been at the door and raised an express objection to the entry by the police. It is irrelevant that she could have objected had the police waited for a response before entering. The entry was consensual. Because the police entered with consent, the knock-and-announce rule does not apply. (See People v. Hoxter (1999) 75 Cal.App.4th 406, 414.)

In any event, even without Prizzi's consent, Gil has no basis for complaint. An illegal search violates the rights of only those who have a legitimate expectation of privacy in the place searched or in the property seized. (People v. Koury (1989) 214 Cal.App.3d 676, 686.) Generally, a legitimate expectation of privacy in a place requires that a person be more than a "casual visitor." (Id. at p. 687.) Because the only item in the room Gil identified as hers was a purse, the trial court could reasonably conclude she was at best a casual visitor to the motel room. Gil had no legitimate expectation of privacy.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Allan L. Steele, Judge

Superior Court County of Ventura

______________________________

Kenneth I. Clayman, Public Defender, and Michael C. McMahon, Chief Deputy, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code.