P. v. Salcedo

Filed 10/2/06 P. v. Salcedo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Marie Sovey Silveira, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

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Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), appellant Javier Salcedo pled guilty to possession of a controlled substance for purposes of sale (Health & Saf. Code, § 11351). The court imposed a prison term of two years and ordered appellant to pay, inter alia, attorney fees in the amount of $200.

On appeal, appellant contends the court erred in (1) denying his suppression motion and (2) ordering appellant to pay attorney fees. We will reverse.

FACTUAL BACKGROUND

Deputy Jon McQueary of the Stanislaus County Sheriff’s Department (SCSD) testified that at approximately 9:30 a.m. on March 13, 2003, he was driving an unmarked SCSD vehicle when he saw the following.^[1] A car, its engine running, was parked in front of the residence at 1801 Poland Road in Modesto (the residence), and a person, later identified as appellant, was sitting in the driver’s seat. In front of the residence was a chainlink fence, approximately three feet in height. Two persons ran from the rear of the residence, along the north side of the residence, carrying two large duffel bags. They jumped over the fence in front of the residence and put the duffel bags in the trunk of the car. They then got in the car and drove away.

The car was behind Deputy McQueary. The deputy, believing that a burglary was in process, made a U-turn, at which point appellant, who had traveled approximately one block, made a U-turn. At that point, the deputy activated his vehicle’s red light and siren. Appellant drove back to the residence, stopped, got out of the car and began walking toward the residence. Deputy McQueary identified himself as a detective with the SCSD and told appellant to stop, but appellant did not stop until the deputy got out of his car and shouted at him several more times.

Deputy McQueary told appellant he was being detained and directed him to walk toward the deputy’s vehicle. Appellant complied, and spontaneously said he was not burglarizing the residence. The deputy asked appellant if he had any proof of identity. Appellant responded he did not. Deputy McQueary asked appellant his name. Appellant gave the name Javier Salcedo. He also told the deputy his date of birth. The deputy asked appellant if he lived at the residence. Appellant responded that he did live there. The deputy stated it appeared that someone was breaking into the residence. Appellant stated “the property they were carrying in the bags belonged to him.” The deputy then asked appellant the address of the residence, and appellant stated the address was 1801 Poland. The deputy then asked appellant again if he lived in the residence. This time appellant responded he did not, but that he was being paid by “family members” to be a caretaker of the residence. He also stated he had a key to the residence, and he produced a key. At that point, Deputy McQueary made a request, presumably by police radio, for assistance. At some point, the deputy also checked to determine if appellant had any outstanding warrants. At least two other deputies later arrived on the scene, and after the first one arrived, shortly after appellant produced the key, appellant was handcuffed and placed in the back of that deputy’s patrol vehicle. At some point after that, Deputy McQueary learned there were two misdemeanor warrants for appellant’s arrest outstanding.

Thereafter, Deputy McQueary, in the performance of a “security check“ of the residence to determine if there were “other suspects” or “possible victims of a crime“ inside, checked the doors and determined they were locked. Then, using the key, he unlocked the dead bolt on a side door and opened the door. As he did so, he loudly identified himself. Deputy McQueary took two steps into the house, and, after approximately five seconds, upon realizing the house was bigger than he thought, backed out and waited for further assistance.

After appellant had been placed in the patrol car and before Deputy McQueary entered the residence, appellant provided the deputy with telephone numbers of two females who, appellant said, “could confirm the story.” Deputy McQueary called both numbers. One was for an “answering service,” and the deputy left a message. When the deputy called the other number he spoke to a person who told him the person the deputy was asking for was not there. Deputy McQueary left his “contact numbers.”

Before entering the residence Deputy McQueary spoke with appellant’s two cohorts, and obtained from each his name and date of birth. The deputy did not look inside the duffel bags.

A “few moments“ after Deputy McQueary had come out of the residence another deputy arrived. At that point, Deputy McQueary and another deputy went to the door by which Deputy McQueary had previously entered, Deputy McQueary loudly identified himself and the two deputies entered the residence and began going through the rooms, “looking for any possible victims” and attempting to determine if a crime had been committed. During the course of this search Deputy McQueary saw batteries and electrical cables. One of the cables led into a room, the doorway to which was covered with a black plastic tarp. Deputy McQueary moved the tarp aside to look in the room and saw some small potted plants which, the deputy suspected, were marijuana. He then backed out of the room and continued searching the rest of the residence. When they were through, the two deputies left the residence.

Thereafter, Deputy McQueary obtained a search warrant and searched the residence pursuant to that warrant. In that search he found “other drugs and scales.” Also after obtaining the search warrant, the deputy searched the car appellant had been driving and found in the trunk 7 one-ounce bags of marijuana, digital scales and what appeared to be written records of “sales of controlled substances.”

DISCUSSION

“The prosecution [bears] the burden of proving some justification for [a] warrantless search or seizure . . . .” (People v. Williams (1999) 20 Cal.4th 119, 136.) In reviewing the denial of a suppression motion, “We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)

Appellant’s challenge to the denial of his suppression motion consists of three parts. First, he contends the sheriff’s deputies did not have reasonable suspicion to detain him, and all evidence seized after the unlawful detention should have been suppressed as a direct product of the detention. Second, he argues that assuming the detention was justified at the outset, it was unduly prolonged, thereby rendering any subsequent seizure of evidence unlawful. Finally, appellant argues that even if he was lawfully detained, the subsequent warrantless entries into the residence were not authorized under the justification offered by the People, viz., the exigent circumstances doctrine, and therefore those entries and the subsequent search of the residence and seizure of evidence were constitutionally unreasonable. As will appear, we have concluded appellant was lawfully detained, but his contention that the law enforcement entry into the residence was not justified under the exigent circumstances has merit.

The Detention

“The Fourth Amendment to the United States Constitution prohibits seizures of persons, including brief investigative stops, when they are ‘unreasonable.’ [Citations.] . . . A seizure occurs whenever a police officer ‘by means of physical force or show of authority’ restrains the liberty of a person to walk away. [Citation.]” (People v. Souza (1994) 9 Cal.4th 224, 229.) A forcible stop, or detention as such seizures are commonly called, is reasonable under the Fourth Amendment when “based on ‘some objective manifestation’ that criminal activity is afoot and that the person to be stopped is engaged in that activity.” (Id. at p. 230.) The detaining officer must be able to “point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (Id. at p. 231.) Under this standard, a detention requires only a “minimal level of objective justification” (Illinois v. Wardlow (2000) 528 U.S. 119, 120 [120 S.Ct. 673]), and an officer may initiate one “based not on certainty, but on the need to ‘check out’ a reasonable suspicion” (U. S. v. Clark (D.C. Cir. 1994) 24 F.3d 299, 303). “ ‘The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . .’ “ (People v. Souza, supra, 9 Cal.4th at p. 233.) “Reasonable suspicion cannot be reduced to a neat set of legal rules, but must be determined by looking to ‘the totality of the circumstances--the whole picture.’ “ (U.S. v. Clark, supra, 24 F.3d at p. 303; quoting United States v. Sokolow (1989) 490 U.S. 1, 7-8 [109 S.Ct. 1581].)

As appellant notes, Deputy McQueary observed appellant during daytime hours, the deputy had received no report that a burglary was in progress, there were no broken windows or any other indications from the residence itself to indicate a burglary had occurred or was occurring, appellant did not drive away at a high rate of speed and immediately after the SCSD vehicle came up behind appellant he returned to the residence. But while these factors are consistent with the absence of criminal activity, they do not compel the conclusion that Deputy McQueary acted unreasonably in detaining appellant. The evidence shows that the deputy observed two persons carrying duffel bags run from the residence, jump over the fence and get into a waiting car that had its motor running, and that the car then immediately drove away. In our independent judgment, these factors, though consistent with innocent activity, provide an objective, albeit ambiguous, manifestation that criminal activity was afoot and that appellant was engaged in that activity, and were sufficiently suspicious to justify a brief detention. Thus, the initial detention of appellant was not constitutionally unreasonable.

Moreover, the detention was not unduly prolonged. It is well settled that “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” (Florida v. Royer (1983) 460 U.S. 491, 500 [103 S.Ct. 1319].) It is also well settled that there is no rigid formula for determining how long a detention may last. (U.S. v. Sharpe (1985) 470 U.S. 675, 686 [105 S.Ct. 1568].) The question is whether the officer “diligently pursued a means of investigation reasonably designed to confirm or dispel his [or her] suspicions quickly.” (People v. Soun (1995) 34 Cal.App.4th 1499, 1520.) And “[c]ircumstances which develop during a detention may provide reasonable suspicion to prolong the detention.” (People v. Russell (2000) 81 Cal.App.4th 96, 102.)

Here, as demonstrated above, the facts available to Deputy McQueary’s were sufficient to give rise to a reasonable suspicion that appellant was involved in a burglary. And the record further shows that further support for this suspicion was developed during the course of questioning appellant when appellant gave different accounts of his connection to the residence. Moreover, the record also supports the conclusion that Deputy McQueary performed his investigation with diligence, right up to and beyond the point when the deputy learned of the outstanding warrants, at which point there was an independent basis to detain appellant. On this record, we conclude the detention lasted no longer than was reasonably necessary for Deputy McQueary to perform the duties necessitated by what he had observed.

Exigent Circumstances

“Warrantless entry presumptively violates the constitutional proscription against unreasonable searches and seizures. [Citation.] The presumption of unlawfulness can be overcome, however, by a limited number of carefully circumscribed exceptions to the warrant requirement. [Citations.] One exception is the presence of ‘exigent circumstances.’ “ (People v. Frye (1998) 18 Cal.4th 894, 989.) Under this doctrine, failure to comply with the warrant requirement is justified when police are confronted with “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” (People v. Ramey (1976) 16 Cal.3d 263, 276.) However, whereas a detention is justified where the officer entertains a reasonable suspicion of wrongdoing. “The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified” by factors such as the one advanced here by the People, viz., the belief on the part of the deputy that it was possible that there were victims of a crime inside the house in need of assistance. (People v. Celis (2004) 33 Cal.4th 667, 676, emphasis in original; accord, Murdock v. Stout (9th Cir. 1995) 54 F.3d 1437, 1441 [“Although exigent circumstances relieve the police officer of obligation of obtaining a warrant, they do not relieve an officer of the need to have probable cause to enter the house”].) “[T]he United States Supreme Court characterized ‘reasonable suspicion’ as a standard less demanding than probable

cause . . . .” (People v. Souza, supra, 9 Cal.4th at pp. 230-231.) “Probable cause [for arrest] has been generally defined as a state of facts that would lead a reasonable officer of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that a crime had been or was being committed.” (People v. Avila (1997) 58 Cal.App.4th 1069, 1075)

As indicated above, the People argue Deputy McQueary’s entry “was justified by exigent circumstances” because “it was reasonable for the detective to think that there might be victims inside the residence who needed immediate assistance.” However, the presence of victims of a crime presupposes that a crime has been committed. Thus, under the principles set forth above, entry under the exigent circumstances doctrine was justified only if the detective had probable cause to believe a crime was being or had been committed. And here, although the information available to Deputy McQueary was sufficient to give rise to a reasonable suspicion that a burglary had been committed, in our view that information was not sufficient to meet the more demanding standard of probable cause. The two persons carrying duffel bags running from the residence and getting into the waiting car which then drove off, apparently at a normal rate of speed, coupled with appellant’s subsequent conflicting statements regarding his connection to the residence, constitute circumstances which, although suspicious, were not sufficient to give rise to a “strong” suspicion that a crime had been or was being committed.” (People v. Avila, supra, 58 Cal.App.4th at p. 1075.)

On this record, the prosecution did not meet its burden of establishing a justification for the warrantless entries into the residence. Evidence seized as a result of those entries should have been suppressed. Therefore, the court erred in denying appellant’s suppression motion.^[2]

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court, which is directed to vacate appellant’s plea and grant the motion to suppress.^[3]

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^* Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

^[1] The factual summary is taken from Deputy McQueary’s testimony at the hearing on the suppression motion.

^[2] Because we reverse the judgment, we need not address appellant’s challenge to the order that he pay attorney fees.

^[3] Insofar as the record reveals, appellant sought the suppression of all evidence seized following the deputies’ entries into the residence, and the prosecution, in asserting such entries were justified, did not differentiate between the seizure of items found inside the residence and the seizure of the items found in the car appellant had been driving. Therefore, the court is directed to grant appellant’s motion to suppress with regard to all items seized.