P. v. McKee

Filed 7/13/07 P. v. McKee CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Christopher Scott McKee appeals from a judgment of conviction entered after he pleaded no contest to the manufacture of methamphetamine (Health & Saf. Code, 11379.6, subd. (a)) and being under the influence of methamphetamine (Health & Saf. Code, 11550, subd. (a)). Defendant also admitted that he had suffered a prior felony conviction within the meaning of Health and Safety Code sections 11370.2, subdivision (b) and 11370, subdivisions (a) and (c). The trial court sentenced defendant to three years in state prison. Defendant contends that the trial court erred in denying his motion to suppress evidence. For the reasons stated below, we affirm.

I. Statement of Facts[1]

On September 26, 2003, Officer Nestor Torres went to defendants apartment to investigate a suspicious circumstance after an anonymous caller reported strange odors. Torres knocked on defendants door, but no one responded. When Torres heard a sound coming from the rear patio, he walked to that location and saw defendant. Torres smelled an odor of dirty socks coming from defendants apartment. According to Torres, this type of odor is associated with a methamphetamine laboratory. He also observed that defendant was wearing latex gloves with brown or tan stains in the palm area. Torres had seen this type of stain on gloves numerous times in his investigation of methamphetamine laboratories. Torres asked defendant to open the front door, but defendant failed to acknowledge him and retreated into his apartment.

Torres returned to the front door where he knocked several times. There was no response, and eventually he heard what may have been a dead bolt. Torres then called his supervisor, who contacted the fire department and the narcotics unit.

The fire department arrived 30 to 60 minutes later. Various police officers arrived to determine whether the area should be evacuated. Defendant exited his apartment approximately two to three hours later, and was arrested. He was eventually transported to the police station where Officer Jonathan Shaheen advised him of his constitutional rights. The interview began close to 10:30 a.m. Shaheen did not know how long the interview lasted. Defendant consented to a search of his apartment, but he did not consent to a search of his roommates bedroom. Shaheen then notified officers on the scene that he had received defendants consent.

After the fire fighters entered the apartment and determined that it was safe, Torres followed Officer Bryan Hoo into defendants apartment. Torres initially testified that he had been advised that consent had been given to enter the apartment[,] but later testified that he didnt know what had transpired between the defendant and officers that had him in custody[,] and didnt have any information that there was consent . . . .

Hoo arrived at the scene at approximately 10:30 a.m.[2] Defendant had already been arrested and transported to the police station. After Shaheen had obtained defendants consent to a search of his apartment, Hoo entered the apartment. While in the apartment, Hoo observed items consistent with the manufacture of methamphetamine. Hoo then sought a search warrant for the entire apartment based on his observations and the information provided by Torres and the fire fighters.

On August 6, 2004, Hoo executed an affidavit for an arrest warrant. On August 10, 2004, a felony complaint was filed based on the evidence that the police obtained during the September 26, 2003 search. A warrant was then issued for defendants arrest. On September 20, 2004, Officer Eve Woloscczuk went to defendants apartment to serve the arrest warrant. After knocking on the door, she entered the apartment and saw defendant running toward the kitchen. Woloscczuk arrested defendant and saw items, which appeared to be chemicals, cooking in the kitchen. Based on her observations, Woloscczuk obtained a search warrant and a second search of defendants apartment was conducted. The evidence obtained during this search led to the charges in the present case.

Following the hearing on defendants motion to suppress evidence, the trial court stated in relevant part: I dont believe the People have born their burden of showing that the search of the apartment followed obtaining consent from the defendant, because . . . Officer Torres testimony was that he entered the . . . apartment with Officer Hoo, and he testified quite clearly he doesnt know when he entered the apartment, and that he knew nothing about consent when he entered the apartment. [] There has been no testimony presented by the People that ties chronologically the obtaining of the consent to a time before Officer Torres entered the apartment[.] . . . [] And just for the purposes of an appeal, I accept Officer Shaheens testimony that the clear import of the consent was that it gave them consent to search all areas of the apartment except for the master bedroom. . . . But . . . theres a missing linkage about when the actual search occurred and what was confiscated in that search. . . . Thus, the trial court suppressed the evidence found pursuant to the execution of the search warrant on September 26, 2003. However, the trial court denied the motion to suppress evidence that was found on September 20, 2004. The trial court explained that the search was conducted pursuant to a lawful arrest pursuant to the valid serving of the arrest warrant, and it was perfectly proper.

II. Discussion

Defendant contends that the trial court erred in denying the motion to suppress evidence that was found on September 20, 2004. He argues that the 2004 arrest warrant was derivative of the illegal police conduct on September 26, 2003, and thus the good faith exception to the exclusionary rule did not apply.

In reviewing the trial courts denial of a motion to suppress evidence, this court view[s] 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. (People v. Jenkins (2000) 22 Cal.4th 900, 969.) We then review the trial courts application of the law to the facts de novo. (Ibid.)

The Fourth Amendment protects individuals against unreasonable searches and seizures. When the police obtain evidence by means which violates the Fourth Amendment, the exclusionary rule applies and the evidence must be suppressed. (Nix v. Williams (1984) 467 U.S. 431, 441.) However, in U.S. v. Leon (1984) 468 U.S. 897, the United States Supreme Court held that the exclusionary rule does not apply where the police officer has reasonably and in good faith relied on a warrant that is later invalidated. (Id. at p. 926.) The court further cautioned that the officers reliance on the magistrates probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable . . . , and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued. (Id. at pp. 922-923.) Thus, the exclusionary rule applies when an officer misleads the magistrate by providing information in the affidavit that he or she knows was false or should have known was false. (Id. at p. 923.) The court also observed that an officer [would not] manifest objective good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. (Brown v. Illinois, 422 U.S., at 610-611 (POWELL, J., concurring in part); see Illinois v.Gates, supra, 462 U.S., at 263-264.) (Ibid.)

Defendant argues, however, that People v. Machupa (1994) 7 Cal.4th 614 is controlling. In Machupa, the issue was whether the good faith exception to the exclusionary rule applied when the police entered a residence without a warrant or consent and seized evidence that formed the basis for the issue of a search warrant. In that case, two police officers were investigating a shooting and asked the defendant if he owned any guns. (Id. at p. 618.) When the defendant stated that he owned two guns, the officers asked to see them. (Ibid.) As the defendant entered his home, the officers followed him, saw marijuana, and arrested the defendant. (Ibid.) A third police officer later applied for a search warrant. (Ibid.) His affidavit was internally inconsistent as to whether the defendant had consented to the entry into his residence. (Id. at pp. 618-619.) After the search warrant was issued, the officers again entered the residence and found more contraband. (Id. at p. 619.) The defendant brought a motion to suppress the evidence on the ground that the initial entry into the residence was nonconsensual and the evidence seized in the subsequent search was tainted by this illegality. (Ibid.) Following testimony and argument, the trial court found that the defendant never consented to the entry, but upheld the search under the warrant. (Id. at pp. 619-620.)

The California Supreme Court began its analysis with a discussion of United States v. Leon, supra, 468 U.S. 897, noting that [t]he core rationale supporting a good faith exception was the courts perception that the exclusionary rule is designed to deterpolice misconduct rather than to punish the errors of judges and magistrates. [Citation.] (People v. Machupa, supra, 7 Cal.4th at p. 623.) The court then reviewed California case law that repeatedly rejected claims that the good faith exception validates searches and seizures under a warrant issued on the basis of an antecedent warrantless search. (Id. at p. 624, citing People v. Leichty (1988) 205 Cal.App.3d 914; People v. Brown (1989) 210 Cal.App.3d 849; People v. Ivey (1991) 228 Cal.App.3d 1423; People v. Ingham (1992) 5 Cal.App.4th 326.) After also surveying federal case law, the Machupa court concluded that the good faith exception did not validate the search. (Id. at p. 632.)

Here, Hoo submitted the felony complaint, the police reports, and other documents relating to the 2003 incident and search of defendants apartment when he sought the 2004 arrest warrant. Nothing on the face of these documents indicated that the police searched defendants apartment prior to obtaining his consent. Hoos affidavit also indicated that he entered defendants apartment after he had been informed that Shaheen had secured defendants consent to the search.[3] Thus, when the 2004 arrest warrant was issued and executed, there was no basis for either the magistrate, Hoo, or the arresting officers to know that the People would later fail to carry their burden of showing that Shaheen had communicated to Hoo that defendant had given his consent to search his residence. Accordingly, the trial court did not err in denying defendants motion to suppress evidence that was found during a search of defendants apartment in September 2004.

Defendant argues, however, that it would have been virtually impossible for Hoo to have entered the apartment after defendant had consented to a search. We disagree. Shaheens interview with defendant began close to 10:30 a.m. Hoo arrived at the scene at approximately 1030 hours[.] Upon arrival, Hoo was informed that defendant had already been arrested and transported to the police station. Hoo further states that Shaheen had obtained defendants signed consent, and Hoo entered the apartment. Hoo does not state the time when he first entered the apartment. Thus, there is nothing in the record to indicate that Hoo entered the apartment before Shaheen obtained defendants consent.

Moreover, even if we assume that Machupa governs the present case, that is, that the 2004 search was unlawful because the arrest warrant was based on illegal police conduct, we would conclude that the doctrine of inevitable discovery would apply. A trial courts ruling, if legally correct, will not be disturbed on appeal merely because its reasoning was erroneous. (People v. Zapien (1993) 4 Cal.4th 929, 976.) Since the People may not appeal from a judgment of conviction (Pen. Code 1252), any preclusion of the trial courts order suppressing the [evidence from the 2003 search] would result in that order being binding on [this court] even if clearly erroneous. (People v. Braeseke (1979) 25 Cal.3d 691, 700, vacated sub nom. California v. Braeseke (1980) 446 U.S. 932, reiterated People v. Braeseke (1980) 28 Cal.3d 86.) Thus, we address the issue of whether the challenged evidence would have been eventually obtained based on defendants consent.

Here, the trial court expressly found that defendant validly consented to the search of the apartment with the exception of the master bedroom. This finding was supported by Shaheens testimony and the consent form signed by defendant. Moreover, the evidence observed by the police during their initial search did not induce Shaheens decision to seek defendants consent or defendants decision to give consent. The fact that the trial court also found that Torres was unaware of defendants consent at the time he entered defendants apartment is not legally significant. Since defendant had consented to a search of his residence, it was inevitable that the police would have searched it. (Nix v. Williams, supra, 467 U.S. 431; People v. Clark (1993) 5 Cal.4th 950.) Accordingly, the trial court erred by refusing to deny the motion to suppress on this ground.

Defendant argues that the People are precluded from advancing this theory, because they did not present it to the trial court. However, when the factual basis for a theory is developed at the hearing on the motion to suppress evidence, there is no prejudice to the defendant. (Green v. Superior Court (1985) 40 Cal.3d 126, 138.) Here, defendant cross-examined Shaheen regarding defendants written consent to search his residence. The trial court then rejected defendants argument that the search exceeded the scope of his consent. Since defendant validly relinquished his expectation of privacy in his apartment, his challenge to the police entry was without merit.

III. Disposition

The judgment is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, Acting P.J.

_____________________________

Duffy, J.

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[1] This court has taken judicial notice of its own records in McKee v. Superior Court, H029692. (Evid. Code, 452, subd. (a), 453, 459.) The statement of facts is based on the evidence admitted at the hearing on the motion to suppress evidence and the exhibits in H029692.

[2] Hoo did not testify at the hearing on the motion to suppress evidence.

[3] While Torres, who was not the affiant, testified at the hearing on December 7, 2005, that he did not know whether defendant had given his consent to search when he followed Hoo into the apartment, this testimony did not negate the information provided in Hoos affidavit.