P. v. Whiten

Filed 9/7/07 P. v. Whiten CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Julious Ray Whiten of possession of a firearm by a convicted felon and possession of a sawed-off shotgun. Finding that defendant had prior convictions, three of which were for serious or violent felonies within the meaning of the three strikes law, and had served prior prison terms, the trial court sentenced him to state prison for a term of 25 years to life.

On appeal, defendant contends the trial court erred in denying his motion to suppress evidence of the weapons found during a search of his residence. We shall affirm the judgment.

FACTS

At the suppression hearing, Officer Robert Mueller testified that he and Officers Gin and Dionne were dispatched to investigate a reported assault. The victim, Michael Sunahara, told them that defendant, who was Sunaharas neighbor, was the assailant.

The officers then went to defendants house to conduct further investigation. While Officer Dionne spoke with defendant, a woman named Jennifer Jacinto, who was defendants fiance, told Officer Mueller that their house had been burglarized the night before and that she believed Sunahara was the perpetrator. Sunahara had lived in defendants house for about a week but had moved out when he was unable to pay the rent. Jacinto showed Officer Mueller the damage caused by the burglary, including holes in the guest bedroom wall, and a kicked-in door in the master bedroom.

The officers then returned to Sunaharas house. When Officer Gin told him about the allegations, Sunahara said that defendant had handcuffed and assaulted him with a .45-caliber pistol and that defendant kept the pistol and a sawed-off shotgun at his house. According to Sunahara, the likely location of the pistol was in a black zippered case in the nightstand in defendants master bedroom, or inside the living room couch, or inside one of the cars. The shotgun was either under the master bedroom bed or in one of the cars.

At this point, Officer Mueller returned to defendants home to look for the weapons and to further investigate the alleged burglary. When Jacinto answered the door, Officer Mueller told her he had seen something at Sunaharas house that might have caused the holes in the guest bedroom and asked to see the damage again. Jacinto showed him to the guest bedroom. After a few moments, Mueller said he did not think the object at Sunaharas house had caused the damage after all, and suggested it might have been caused by some object in defendants house. He asked Jacinto to show him the rest of the damage, and she led him to the master bedroom to view the kicked-in door.

When they reached the bedroom, Officer Mueller asked if there were any weapons in the house. Jacinto responded that she was not aware of any. Mueller then asked if he could search for weapons. Jacinto consented.

Officer Mueller began searching under the bed and in the nightstand drawer, as Sunahara had suggested. In the drawer, Mueller found a box of sex toys. Since Sunahara had mentioned that he was handcuffed during the assault, Mueller asked Jacinto whether she owned any handcuffs. According to Jacinto, at this point she told Mueller that she was feeling uncomfortable with the search.

Officer Mueller went into the garage and, after obtaining Jacintos consent to search the cars, began to search inside a Cadillac. He found a black nylon pistol case containing two magazines and some loose .45-caliber ammunition on the front seat, but he had difficulty opening the trunk. Jacinto indicated that she was uncomfortable with the search, and Mueller reminded her that she had given her consent. When Jacinto asked if she could have a friend present during the search, Mueller agreed and stopped while they waited for the friend.

About 15 to 25 minutes later, Jacintos friend, Shayla Ray, arrived at the house. The two women engaged in a brief discussion, and then they asked Officer Mueller at what point could they request a warrant. He explained they could ask for a warrant at any time, that that was their right. Mueller also mentioned that he would like to give both defendant and Sunahara the benefit of the doubt by conducting the search, and by proving there were no weapons. If he did not search and there was a gun, Jacinto could have liability. For example, if its in the trunk of the car and she gets stopped and the police have reason to search, they find the pistol, shes liable for that pistol being in her car and she might wind up under arrest. Furthermore, if her house was burglarized again and the intruder found the gun, she would be responsible for another weapon getting out on the street. Jacinto and Ray told Mueller he could continue to search, and stayed with him while he proceeded.

While searching in a laundry basket and a refrigerator in the guest bedroom, Officer Mueller discovered some .45-caliber bullets and a box of .38-caliber ammunition. Neither Jacinto nor her friend asked the officer to stop the search.

Officer Mueller attempted to open the Cadillacs trunk one more time and, after discovering a lock switch on the dash, he was successful. Inside the trunk, he found a loaded sawed-off shotgun and a .45-caliber pistol.

At the suppression hearing, Jacinto denied giving Officer Mueller consent to search. She testified that he just walked into the master bedroom and began to look for weapons. She also testified that after Mueller found the ammunition in the guest bedroom, she told him that [she] was feeling uncomfortable. [She] made it clear, especially with him finding that box . . . .

Defendant moved to suppress the evidence on the ground that the search was conducted without a warrant; that Jacinto did not consent to the search; and that any consent given was the result of a ruse which rendered the consent involuntary.

Observing that the testimony of the witnesses conflicted, the trial court found that Officer Mueller was more credible in the manner in which the search was conducted and the incidents leading up to the search. In other words, the court concluded, Jacinto consented to the search. With regard to the legal issue concerning the ruse that Mueller used to obtain entry to ostensibly look at the burglary damage, the court found this did not render Jacintos consent involuntary. Accordingly, the court denied the motion to suppress the evidence.

DISCUSSION

Defendant challenges the trial courts determination that Jacinto voluntarily consented to Officer Muellers search for weapons.

A properly conducted search pursuant to consent is a constitutionally permissible and wholly legitimate aspect of effective police activity (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 228 [36 L.Ed.2d 854, 863]), but the consent must be freely and voluntarily given and not the product of police coercion. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1578 (hereafter Avalos).) Whether a particular consent is voluntary depends on the totality of the circumstances, including whether the consenting person was in custody, was told that a search warrant could be obtained, was confronted by many officers, and experienced a significant interruption of his or her liberty; and whether the officer had a weapon drawn, informed the person of the right to refuse consent, delivered his or her requests in a tone that would likely be obeyed, and used deceptive practices to obtain consent. (See People v. Ledesma (1987) 43 Cal.3d 171, 233-234; U.S. v. Cormier (9th Cir. 2000) 220 F.3d 1103, 1112; U.S. v. Yusuff (7th Cir. 1996) 96 F.3d 982, 985-987; Avalos, supra, 47 Cal.App.4th at p. 1578.) [N]o single factor is dispositive of this factually intensive inquiry. (Avalos, supra, at p. 1578.)

In reviewing the denial of a motion to suppress evidence, we defer to the trial courts express and implicit factual findings that are supported by substantial evidence, but we exercise our independent judgment in determining whether, based on these factual findings, the search or seizure was reasonable under the Fourth Amendment to the United States Constitution. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

Viewed in the light most favorable to the suppression order (People v. Weaver (2001) 26 Cal.4th 876, 924), the evidence set forth in the statement of the facts amply supports the trial courts determination that Jacinto voluntarily consented to Officer Muellers search of the car and residence, and was not coerced into doing so.

Defendants disagreement with this conclusion is based solely on the premise that Officer Mueller used subterfuge to gain entry into the residence. Mueller testified that he intended to seek entry to search for weapons as well as to continue investigating the burglary, but he told Jacinto only of his intention to pursue the burglary investigation and obtained her consent to enter and search for this purpose. Defendant views Muellers failure to reveal that he also wanted to look for weapons as a deception that invalidated Jacintos consent to enter. As a consequence, in defendants view, Jacintos subsequent consent to search for weapons was invalid because it resulted from the prior unlawful entry. We disagree.

Although police deception regarding the purpose of a request to enter or search is relevant in assessing consent, it cannot be analyzed in a vacuum without reference to the surrounding circumstances. [Citation.] (Avalos, supra, 47 Cal.App.4th at p. 1578.) Defendant overlooks that Officer Mueller initially confined his search within the scope of Jacintos consent to enter and view the damage, and did not look in the places where Sunahara suggested the weapons would be found. Only after Jacinto consented to Muellers request to search for weapons, did Mueller do so. The fact that he initially told Jacinto about only one of his reasons for seeking entry into the residence did not render her permission to enter nonconsensual. This type of deception is not inherently incompatible with consent. (Avalos, supra, 47 Cal.App.4th at pp. 1578-1579 [partial misrepresentation about the object of a search did not invalidate consent].) For an officers misrepresentation to invalidate a persons consent to search, it must materially mislead the person as to the privacy rights being surrendered, such that it induces the person to give up privacy rights that he or she would not otherwise surrender (id. at p. 1579), which did not occur in this case.

Relying on U.S. v. Phillips (9th Cir. 1974) 497 F.2d 1131 (hereafter Phillips) and U.S. v. Bosse (9th Cir. 1990) 898 F.2d 113 (hereafter Bosse), defendant contends that Muellers failure, at the time he obtained consent to enter, to disclose his intention to search for weapons invalidated Jacintos subsequent consent to search for weapons. His reliance on those cases is misplaced.

In Phillips, undercover federal narcotics agents seeking to arrest the defendant used uniformed police officers to obtain entry into a locked commercial building by stating they were investigating a burglary report. The agents did not have probable cause to believe the defendant was in the building at the time of the raid; but upon entering the building, they found and arrested him, and conducted a search incident to his arrest. The defendant contended the evidence seized at the time of his arrest should be suppressed because the agents lacked probable cause to arrest him, and because their entry into his building was illegal. (Phillips, supra, 497 F.2d at pp. 1132-1133.) Phillips held that assuming the agents had probable cause to arrest the defendant, their entry to arrest him was invalid because they lacked probable cause to believe he was inside. (Id. at pp. 1133, 1135.) An agent must have probable cause to believe that the person he is attempting to arrest, with or without a warrant, is in a particular building at the time in question before that agent can legitimately enter the building by ruse or any other means. To hold otherwise is to grant the agent a license to go from house to house employing ruse entries in violation of the right of privacy of the respective occupants. (Id. at 1136.)

Nothing in Phillips held that a ruse used to gain consent to enter a building necessarily renders the residents subsequent consent to search involuntary. As defendant points out, Phillips stated that [b]efore a person can be deemed to have knowingly consented, he must be aware of the purpose for which the [officer] is seeking entry. (Phillips, supra, 497 F.2d at p. 1135, fn. 4.) But when viewed in context, this simply refers to the established principle that where consent is given to enter for a specific purpose, it is not the equivalent of consent to enter to make an arrest. (See, e.g., People v. Superior Court (Kenner) (1977) 73 Cal.App.3d 65, 69 [consent to enter to talk is not consent to arrest]; In re Johnny V. (1978) 85 Cal.App.3d 120, 131-132 [same].)

Here, Jacinto consented to Officer Muellers entry for one purpose and then consented to Muellers search for another purpose. Mueller never exceeded the scope of the consent given.

Defendants reliance on Bosse also is unavailing. In that case, Robert Dunkin, an agent with the California Department of Justice, obtained the defendants consent to inspect his house as part of the defendants pending application to sell automatic weapons. This was a ruse to enable a federal agent to gain entry into the house for the purpose of obtaining evidence to support a search warrant in the federal agents investigation of possible federal firearms violations. As a result of the ruse, the federal agent observed evidence necessary to obtain a search warrant, which resulted in the seizure of the defendants sawed-off shotgun. (Bosse, supra, 898 F.2d at pp.114-115.) The suppression of the shotgun is not surprising given that Bosse involved the use of a third party (Dunkin) to induce the defendant to allow a government officer (the federal agent), whose identity was concealed from the defendant, to gain physical entry under false pretenses to obtain evidence against the defendant. (Ibid.) Seizure of the sawed-off shotgun was the direct result of the ruse because, but for the ruse, the federal agent would not have been able to enter to procure probable cause for the search warrant used to seize the firearm. Courts have routinely found such ruses impermissible. (See, e.g., People v. Reeves (1964) 61 Cal.2d 268, 273 [officers had hotel manager tell the defendant that there was a letter for him at the front desk so they could look inside when he opened the door]; People v. Reyes (2000) 83 Cal.App.4th 7, 13 [plainclothes officer tricked the defendant into walking outside by telling him that his truck had been hit]; People v. Mesaris (1970) 14 Cal.App.3d 71, 75 [plainclothes officers gained entrance pretending to need to talk to the repairman in the house]; In re Robert T. (1970) 8 Cal.App.3d 990, 993 [owner of apartment building asked for consent to check the apartment and introduced the accompanying plainclothes officer as his friend]; People v. Miller (1967) 248 Cal.App.2d 731, 736-737 [apartment manager notified resident that he had a caller while officer stood outside waiting].)

Here, Officer Mueller did not misrepresent his identity and did not use a third party to make such a misrepresentation to gain entry into the house under false pretenses. And, unlike in Bosse, the seizure of defendants weapons did not result from Muellers failure to disclose his full purpose in seeking entry. Rather, the seizure was the result of Jacintos voluntary consent to search the car for weapons, which search she presumably knew was unrelated to Muellers investigation of the burglary of her home. Muellers request to enter to inspect the burglary damage did not coerce or deceive Jacinto into consenting to his subsequent request to search for weapons.

In sum, the trial court properly denied defendants motion to suppress the evidence.

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

NICHOLSON , J.

BUTZ , J.

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