P. v. Marin

Filed 3/1/07 P. v. Marin CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Phillip Navarrette Marin appeals the judgment following his guilty plea to possession of a controlled substance for sale. (Health & Saf. Code,  11378.) His plea was entered after denial of a motion to quash a search warrant and suppress evidence seized during the search. Marin contends that the search of his room pursuant to the warrant was unreasonable in light of the circumstances in existence at the time of the search. We affirm.

FACTS AND PROCEDURAL HISTORY

Oxnard Police Department Detective David Villanueva obtained a warrant to search premises consisting of "a single family residence" at a specified location "and all rooms, attics, basements and other parts therein and surrounding grounds and any garages/carports, storage rooms, trash containers, and outbuildings of any kind associated with the" residence. Paul Marin, appellant Phillip Marin's brother, had been identified as a suspect in a robbery, and the police had information that he lived in the subject residence. The purpose of the search was to obtain items of clothing described by the witnesses as having been worn by the robber, as well as items and documents showing that Paul Marin had possession and control of the premises.

Detective Villanueva and other officers arrived at the house to execute the warrant and began by "sweeping" the premises. The sweep involved entering the various rooms in the house as well as its detached garage to make sure there was no danger to the officers. The parents of Paul and Phillip Marin were at home, and the father provided a key to the garage which was locked. During the sweep of the garage, officers saw that the garage had been converted into what was "apparently a living area" with a "refrigerator, a bed, dressers, TVs . . . a VCR [and] a coffee table."

After the sweep was completed, officers searched the rooms inside the house and the converted garage. The search began with the garage because it had been photographed first and was the largest room. During the search of the house, the parents identified Paul's bedroom inside the house, but the officers did not ask who occupied the garage bedroom. Several days later, Phillip Marin told Detective Villaneuva that he occupied the garage bedroom.

The clothing described in the warrant and warrant affidavit was found in Paul's bedroom. Narcotics, a loaded handgun, a sawed-off rifle, a shotgun, ammunition, and drug paraphernalia were found in appellant's garage bedroom.

Phillip Marin was charged with possession of a controlled substance for sale, another drug offense, and being a felon in possession of a firearm and ammunition. (Pen. Code, 12021, subd. (a)(1), 12316, subd. (b)(1).) It was alleged that he was personally armed with a firearm in the commission of the offenses (Pen. Code,  12022, subd. (c)), and had suffered a prior strike conviction (Pen. Code, 667, subd. (a)(1), 1170.12, subd. (b)).

Marin filed a motion to suppress and quash warrant. (Pen. Code, 1538.5.) In the motion, Marin contended that there was insufficient probable cause for issuance of the warrant, in part because Paul Marin was the suspect and there was an "inadequate nexus" between Paul's room in the house and Phillip Marin's "separate detached room." After the trial court denied the motion to suppress and quash, Marin pleaded guilty to the possession charge and admitted the firearm and prior conviction allegations. The other charges were dismissed.

DISCUSSION

Marin contends that the trial court erroneously denied his motion to suppress because the search of his bedroom exceeded the permissible scope of the warrant. Marin concedes that the warrant was properly issued based on probable cause that the garage was part of the single family residence but that, once the police discovered the garage had been converted into separate living quarters, the police were obligated to confine their search to the main house in which suspect Paul Marin lived. We disagree.

A warrant to search premises consisting of a single dwelling unit at a particular address permits the search of a garage, outbuilding and other appurtenances in addition to a main building. (People v. Dumas (1973) 9 Cal.3d 871, 881, fn. 5; People v. Weagley (1990) 218 Cal.App.3d 569, 573.) Conversely, when the premises consist of a building with multiple occupancy units, the warrant must limit the search to the unit occupied by the suspect. (People v. Estrada (1965) 234 Cal.App.2d 136, 146, 148.) But, even in the case of multiple occupant dwellings, a search of the entire premises is permitted when there is probable cause for believing that the premises are a single living unit. (Id., at p. 146; see Maryland v. Garrison (1987) 480 U.S. 79, 87-88.)

Marin relies on the rule set forth by the United States Supreme Court in Maryland v. Garrison, supra, 480 U.S. 79. In Garrison, the police obtained a search warrant for an entire floor of a building that officers reasonably believed contained only their suspect's apartment. In fact, there was a second apartment on the floor occupied by Garrison. Believing it to be the suspect's apartment, the police searched Garrison's apartment. After discovering contraband, officers realized they were in the wrong apartment and stopped the search. The Supreme Court held that the search before discovery of the error was proper and that the contraband was admissible. (Id., at pp. 80-81.)

The Supreme Court stated that, when police discover separate living units during a search pursuant to a warrant for a single living unit, they are on notice of the risk that they might be in a unit erroneously included within the terms of the warrant. (Maryland v. Garrison, supra, 480 U.S. at p. 87.) The court concluded, however, that the search of Garrison's apartment was lawful because the officers' failure to realize the warrant was overbroad was "objectively understandable and reasonable. (Id., at p. 88; see also United States v. Kyles (2nd Cir. 1994) 40 F.3d 519, 523-524; U.S. v. Cannon (9th Cir. 2001) 264 F.3d 875, 879.)

Here, the record supports the implied finding that the entire premises, including the main house and converted garage, constituted one living unit occupied by several members of the same family. Accordingly, the search of both the house and converted garage was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362 [in reviewing suppression motion, we defer to express and implied factual findings supported by substantial evidence, but independently determine the reasonableness of the search].) Moreover, to the extent the garage could be characterized as a separate dwelling unit, the search was objectively understandable and reasonable based on the information available to the police.

The main house and converted garage were both occupied by parents and two adult children in the same family. The mere fact that one member of the family has a room in the garage does not convert the premises from a single family home into a multi-unit residence. This is not a situation where a homeowner rents out a room to a boarder who is unrelated to the other occupants of the residence. The most reasonable conclusion is that both Marin sons lived with their parents in one single family residence with each son occupying his own separate and "private" bedroom. All portions of such a house, including a detached garage converted into a bedroom, constitute a single family residence when occupied in common by a single family. (See United States v. Alexander (9th Cir. 1985) 761 F.2d 1294, 1301; see also U.S. v. Ayers (9th Cir. 1991) 924 F.2d 1468, 1480.)

In addition, there were few, if any, objective indicia that the converted garage bedroom should have been considered a separate living unit from the main house. There is also no evidence that the garage bedroom had its own mail box, doorbell, or other identification for visitors. (See, e.g., United States v. Kyles, supra, 40 F.3d at pp. 522-523; U.S. v. Whitney (9th Cir. 1980) 633 F.2d 902, 907-908.) And, there is no evidence that it had its own telephone, kitchen, plumbing fixtures, or bathroom facility. The garage appeared to be an extension of the living area of the main house, not a self-contained and independent living unit. Considering what was not in the garage bedroom, the police had an objectively understandable and reasonable belief its occupant had common use of the main house with other family members.

It is true that the garage was detached from the rest of the residence, had its own access from outside the main house, and had a separate lock. These factors are not inconsistent with the garage serving as Marin's separate "apartment," but they are relatively neutral factors that would be present whether a detached garage is used as a bedroom appurtenant to the main house or as a separate apartment, or to store a vehicle for that matter.

Marin relies on Mena v. City of Simi Valley (9th Cir. 2000) 226 F.3d 1031, 1036-1039, a civil rights case arising out of the execution of a search warrant. Although Mena applies the principle set forth in Maryland v. Garrison, Marin's reliance on the case is misplaced. The facts in Mena are fundamentally dissimilar to the facts of the instant case.

In Mena, police officers conducted a search pursuant to a warrant permitting the search of an entire house. The Ninth Circuit concluded that the officers should have realized immediately that the house was a multi-unit residential dwelling, and limited their search to their suspect's apartment. (Mena v. City of Simi Valley, supra, 226 F.3d at p. 1038.) The officers knew that a large number of persons lived in the house and that the rooms were padlocked and set up as studio apartment units, with their own refrigerators, cooking supplies, food, televisions, and stereos. (Ibid.) The court also concluded that there was virtually no evidence that the suspect had access to or control of

the rooms inhabited by other residents. (Id., at p. 1039.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Herbert Curtis III, Judge

Superior Court County of Ventura

______________________________

Lyn A. Woodward, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Edmond G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.

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