P. v. Pope

Filed 9/24/07 P. v. Pope CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, George G. Lomeli, Judge. Affirmed.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.

________________________________

INTRODUCTION

At his preliminary hearing, appellant brought a motion to suppress all evidence seized during a warrantless search of his home. After the magistrate denied the motion, appellant renewed it in superior court, where it was again denied after the court found appellant had voluntarily consented to the search, and that his consent was sufficiently attenuated from any taint of an earlier illegal sweep of the residence. Appellant contends the court should have found from the totality of the circumstances that his consent was involuntary. We find substantial evidence to support the trial courts finding, and affirm the judgment.

BACKGROUND

Appellant was charged with a violation of Penal Code section 12021, subdivision (a)(1), felon in possession of a firearm (count 1), and Health and Safety Code section 11359, possession of marijuana for purposes of sale (count 2). At the preliminary hearing, appellant brought a motion to suppress evidence pursuant to Penal Code section 1538.5. The magistrate denied the motion, and appellant renewed the motion in superior court after arraignment. Additional testimony was taken in opposition to the renewed motion, which was denied.[1]

At the preliminary hearing, Los Angeles Police Officer Neil Spitz testified that on March 22, 2006, he and his partner Officer Olmos were in an unmarked vehicle wearing plain clothes, in an area known to have narcotics activity and a gang presence, when they observed appellants car. At some point, appellant drove in reverse with no backup lights, in violation of Vehicle Code section 24606. Appellants car rapidly approached the officers car, forcing them to move their vehicle into the opposing traffic lane to avoid appellants. Appellant hit the curb, parked facing the wrong direction, and emerged with a 10- or 12-year-old girl. The officers exited their car, and Olmos yelled in appellants direction, police officer, identifying himself with his badge. Appellant looked in the officers direction, turned and ran away.

The officers gave chase, following appellant to a residence on 83rd Street, with a large front yard. Approximately 20 feet from the front door of the house, Olmos caught and detained appellant, pending the Vehicle Code violation and fleeing from the police, and patted him down for weapons or ammunition. Olmos obtained appellants house key either from appellants hand or pocket -- Spitz did not know which. Spitz then undertook a protective sweep of the house, looking for any obvious dangers, such as other persons who might shoot them or destroy evidence. They found no persons, guns or narcotics in plain view during the sweep. Spitz asked appellant why he had run after they had identified themselves, and appellant replied he had been playing a game with his daughter, running toward their home -- the house where he was detained. Spitz testified that during the sweep and the initial questioning, appellant was not free to leave. Prior to advising appellant of his constitutional rights, Spitz asked whether he was on parole or probation, and when appellant said no, Spitz asked whether there was anything in the house he should know about. Appellant told him he had a shotgun in the house. Spitz then read Miranda^[2] warnings from a card, and questioned appellant further.

Upon further questioning, appellant told Spitz the shotgun belonged to his brother, who was in prison for life, and that appellant was holding it for him. Spitz asked for appellants consent to search the house, which appellant gave verbally and then in writing, on a consent form supplied by Spitz. Spitz did not orally advise appellant he could refuse permission to search or to sign the consent form. The officers searched the house, and found a money counter and $3,027 in one room, $1,100 in another, a nine-millimeter magazine and ammunition of various calibers. Appellant directed them to the shotgun -- a Mossberg brand, with a pistol grip. The officers asked defendant whether there were any narcotics in the house, and appellant directed Spitz to a baggie of marijuana. The officers found some crates containing 50 one-pint bottles of Hennessy, and in one of them, a large baggie containing 16 smaller baggies of a substance resembling marijuana. Spitz, a narcotics officer, testified the marijuana appeared to be prepared for sale, an opinion he found supported by the cash and counting machine found in the house. The officers placed appellant under arrest.[3]

At the hearing on the renewed motion, Spitz explained he cleared the house because in his experience, when people run from officers in that South Central area of Los Angeles after a violation is observed, they are trying to escape because they have narcotics, guns or an outstanding warrant. However, he admitted he had no reason to believe there was any contraband in the house, and he made the sweep only for officer safety and preservation of evidence. The sweep lasted two minutes, and no persons, guns or narcotics were found.

Spitz testified that after being read his Miranda rights, appellant waived them. When asked if he would consent to a search of the house, appellant gave his consent both verbally and by signing a consent form. The form stated in part: I have been advised of my right to refuse consent to the search described above and to refuse to sign this form if I choose. I further declare that the officers have made no promises, threats, force, or physical or mental coercion of any kind against me to obtain my consent for the search described above or for me to sign this form. The form also stated: I am giving permission for the search freely, voluntarily, and without any threat or promise having been made against me, my family, or other person; and, I authorize these officers to take any items which they determine may be related to their investigation.

The trial court found the initial sweep of the house unjustified and illegal. However, as the sweep resulted in no observation of contraband and no seizure, the court concluded it did not taint the subsequent consent to search. The court denied the motion to suppress, finding that under the totality of the circumstances, the search was proper, although the sweep was not.

On the first day of trial, a mistrial was declared, and four months later, appellant entered into a plea agreement. The information was amended to add a violation of Penal Code section 12316, felon in possession of ammunition, to which appellant was allowed to plead no contest, with the possibility of reduction to a misdemeanor, if appellant successfully completed the first year of a three-year period of probation. The trial court sentenced appellant to time served in jail, placed him on three years probation and reinstated probation in another case. Counts 1 and 2 were dismissed. Appellant timely filed a notice of appeal, challenging both pretrial motions to suppress.

DISCUSSION

Appellant contends his motion should have been granted, and all items seized from the house suppressed, because the totality of the circumstances demonstrated that his consent was involuntary. He agrees the officers had probable cause to detain him after he ran from them, but argues the patdown and protective sweep of his house, and the officers failure to inform him of his right to refuse consent, created a coercive atmosphere rendering his consent involuntary.

Where a motion under Penal Code section 1538.5 is made at a preliminary hearing and renewed in the trial court, we review the determination of the superior court upon the renewed motion. (People v. Superior Court (Cooper), supra, 114 Cal.App.4th at p. 717.) The trial courts findings of fact, whether express or implied, are upheld if supported by substantial evidence. (People v. Alvarez (1996) 14 Cal.4th 155, 182.) The appellate court independently determines whether those facts establish probable cause. (Ibid.)

Appellant contends the patdown search and protective sweep of his home were improper and tainted his subsequent consent to search, rendering it invalid. A roadside patdown is warranted only when a reasonably prudent officer would be warranted in the belief, based on specific and articulable facts, and not on a mere inchoate and unparticularized suspicion or hunch, that he is dealing with an armed and dangerous individual. [Citations.] (People v. Celis (2004) 33 Cal.4th 667, 677 (Celis), quoting Maryland v. Buie (1990) 494 U.S. 325, 332 (Buie), and Terry v. Ohio (1968) 392 U.S. 1, 21, 27.) Officers are permitted to draw inferences from suspicious circumstances and human behavior, such as the suspects presence in an area of heavy narcotics trafficking and his unprovoked flight upon noticing the police. (Illinois v. Wardlow (2000) 528 U.S. 119, 124-125.) Here, Spitz and Olmos were investigating narcotics activity in appellants neighborhood, an area known for narcotics and gang activity, and appellant ran from them when Olmos loudly identified himself and his partner as police and displayed his badge. Spitz testified that in his experience, suspects who run from the police have narcotics, guns or an outstanding warrant. We conclude the patdown search was not improper. (See Terry v. Ohio, supra, at pp. 21, 27.)

However, we agree with appellants contention -- and the trial courts conclusion -- that the protective search of the house was improper. When a suspect is detained on the street, a protective sweep of his home may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.(Buie, supra, 494 U.S. at p. 336; see also Celis, supra, 33 Cal.4th at p. 678.) In Buie, after the defendant had been arrested inside his home pursuant to an arrest warrant, officers conducted a brief protective sweep of the house. (Buie, at p. 327.) The United States Supreme Court upheld the protective sweep, explaining that unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversarys turf. An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings. (Id. at p. 333.)

In Celis, the California Supreme Court construed the Buie decision as approving protective sweeps conducted by officers lawfully within a residence, where there is a reasonable suspicion that the area to be swept harbors a dangerous person. (Celis, supra, 33 Cal.4th at p. 678.) Distinguishing the facts in the case before it from those in Buie, the court noted the officers did not have a warrant or probable cause to enter the defendants house, although they had probable cause, based on information obtained in an ongoing investigation, to believe the suspect had been secreting money and drugs in truck tires. (Celis, supra, 33 Cal.4th at pp. 672-673.) After observing the defendant rolling a truck tire in the alley outside his residence, the officers detained him and found cocaine in the tire. (Ibid.) As officers detained the defendant outside, other officers walked through the house to determine if anyone posing a danger to their safety was inside. (Id. at p. 674.) Although the officers knew the suspect lived with his wife and a teenage boy, they had no reason to believe anyone was in the house when they entered. (Id. at pp. 672, 679.) The Supreme Court held that the facts justifying a protective sweep of the suspects house fell short of those found sufficient in Buie. (Id. at p. 671; see Buie, supra, 494 U.S. at pp. 332-333.)

The facts upon which the officers relied are even weaker here. Appellant was detained for a Vehicle Code violation, and the officers quickly determined he was carrying neither weapons nor contraband. Officer Spitz admitted he had no reason to believe there was a person or contraband in the house, and that the sweep was undertaken only as a routine check for purposes of officer safety and preservation of evidence. Thus, Spitz articulated no reasonable suspicion that anyone, armed or unarmed, was in the house.

Upon noting that nothing was found during the patdown search or the protective sweep of appellants house, the trial court found the subsequent consent was untainted by the unlawful protective sweep. The court explained that if the officers had seen the shotgun or the drugs prior to seeking consent, taint would have been clear and direct, but they did not.

Appellant contends the trial court erred in finding he voluntarily consented to the search of his home, because he was not orally advised he could refuse consent. Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances. [Citation.] (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 221; see also People v. Boyer (2006) 38 Cal.4th 412, 445-446.) We uphold the trial courts determination if it is supported by substantial evidence. (People v. Monterroso (2004) 34 Cal.4th 743, 758.)

Knowledge of a right to refuse is a factor to be considered, but not a prerequisite of a voluntary consent. (Schneckloth v. Bustamonte, supra, 412 U.S. at pp. 226, 231.) Moreover, substantial evidence supports the trial courts implied finding that appellant was informed of his right to refuse consent. Appellant gave his consent to search verbally and then in writing on a consent form, after Spitz had read him Miranda warnings from a card. Although Spitz did not read the consent form aloud to appellant, he testified that appellant appeared to read and understand the form before printing and signing his name.

Appellant also contends that under the totality of the circumstances, the taint of the patdown and sweep was not attenuated; thus, his consent was not voluntary. As we have found the patdown to have been lawful, we consider only appellants contention the illegal sweep rendered his consent invalid. When the People seek to justify a search on the ground that consent was given, they have the burden of proving . . . that the consent was lawful, was not a mere submission to authority, and was not inextricably bound up with unlawful conduct. [Citation.] (People v. Lawler (1973) 9 Cal.3d 156, 163.) In general, consent to search given immediately following an illegal entry or search is invalid because it is inseparable from the unlawful conduct. (People v. Willis (2002) 28 Cal.4th 22, 29, quoting Burrows v. Superior Court (1974) 13 Cal.3d 238, 251.)

When the accused claims a consent to search is tainted by a prior Fourth Amendment violation, mere voluntariness of the consent is not enough to dissipate the taint. [Citations.] In such cases, we must additionally examine the attenuation factors set forth in [Brown v. Illinois (1975) 422 U.S. 590 (Brown)], to determine whether, on the particular facts, the twin purposes of the poisonous fruit rule -- to deter the exploitation of official misconduct and to promote judicial integrity -- are outweighed by the cost of excluding the challenged evidence. (People v. Boyer, supra, 38 Cal.4th at p. 450.) Those factors include the temporal proximity of the Fourth Amendment violation to the procurement of the challenged evidence, the presence of intervening circumstances, and the flagrancy of the official misconduct. (Id. at p. 448, citing Brown, supra, at pp. 603-604; see Wong Sun v. United States (1963) 371 U.S. 471, 487-488.)

The first and second Brown factors militate against attenuation. Appellants consent was obtained immediately after the unlawful sweep of his residence. (See People v. Willis, supra, 28 Cal.4th at p. 29.) The lack of a significant intervening period of time does not, in itself, require that the evidence be suppressed for want of sufficient attenuation, [citation] . . . but it does bear . . . directly on the probability of taint, [citation]. (U.S. v. Washington (9th Cir. 2004) 387 F.3d 1060, 1073 (Washington).) Further, signing a written consent form is not an intervening circumstance contemplated by the second Brown factor. (U.S. v. Robeles-Ortega (7th Cir. 2003) 348 F.3d 679, 683-684.)

Appellants argument suggests the third Brown factor -- the flagrancy of the official misconduct -- weighs against finding attenuation. (Brown, supra, 422 U.S. at p. 604.) In addition to the factors just discussed, appellant points to the fact that he was in custody and had been patted down, and that he knew the officers had already conducted a search without his consent, which might have left him with the impression refusing to consent was futile.

Appellant cites Washington, supra, 387 F.3d 1060, which amply illustrates the kind of official misconduct flagrant enough to render a consent invalid, but which fails to support his position. In Washington, six officers, five of whom carried visible firearms, went to Washingtons room in a residential hotel, without a warrant and admittedly without probable cause; Washington came out into the hallway, closed the door behind him, and was soon surrounded by the six officers, five with guns drawn; Washington was told repeatedly he could be arrested for failing to register with the police due to his previous firearm offense; the officers ordered another occupant out of the room, and refused Washingtons request to close the door, giving the officers a fairly ample view of the room while they questioned Washington about drug possession; they continued the interrogation after his emphatic and unequivocal denials. (Washington, at pp. 1063-1064.) The officers twice asked for consent to search, obtaining ambiguous answers which they interpreted as consent; as they peered into the room, one officer asked, Is that a gun on the bed? Washington responded, No sir. . . .  Thats a pager. The officer said, OK, well let[]s go, and when Washington responded, OK, the officers again construed the response as consent, and two of them entered the room, while others continued to interrogate Washington until he admitted he had methamphetamine; when an officer found the drug, the officers produced a consent form, which Washington signed. (Id. at pp. 1064-1065; see also U.S. v. Robeles-Ortega, supra, 348 F.3d at p. 682 [agents broke down the door, entered with a strong show of force, brandished their guns, ordered the occupants to lie down and obtained consent to search immediately afterward].)

There was no such flagrant misconduct here. The officers did not detain appellant at gunpoint, and the illegal sweep lasted just two minutes.[4] After the sweep, appellant was given Miranda warnings and time to read the consent form. The officers did not threaten to take appellants daughter away if appellant did not sign the consent form. Appellant was nervous, but calm and cooperative, and his daughter did not seem frightened. We conclude the officers misconduct in conducting the sweep was not flagrant; thus, the third Brown factor weighs in favor of finding attenuation. (See Brown, supra, 422 U.S. at pp. 603-604.)

Another recognized attenuation factor is whether the illegality led to the observation of the items or place as to which the agents obtained consent. (People v. Henderson (1990) 220 Cal.App.3d 1632, 1651.) Here, it did not -- Spitz saw no contraband or firearms in the course of the protective sweep, as the items ultimately seized were all out of view. Under similar facts, a federal court found the defendants voluntary consent to a second search provided an independent source for the seizure of evidence. (See, e.g., U.S. v. Calhoun (6th Cir. 1995) 49 F.3d 231, 234 (Calhoun).) In that case, Calhoun was arrested just outside her home after taking delivery of a package known to the officers to contain cocaine; she was placed in handcuffs, and officers entered and conducted a sweep, without an arrest or search warrant, or reason to know anyone was inside. (Id. at p. 233.) They found no contraband and seized nothing. (Ibid.) The officers read Calhoun her Miranda rights, brought her inside at her request, and obtained her signature on a consent form similar to the form signed by appellant in this case. (See id. at pp. 233, 235.) The court observed: Several officers described Calhoun as having been polite and cordial after the initial shock of her arrest had passed. As a whole, the record does not suggest Calhoun was physically or mentally abused. Her handcuffs were removed when she was brought inside her apartment out of the cold. The officers did not require Calhouns consent to the search as a condition of bringing her baby to her or threaten her in any way. (Id. at p. 235.)

Quoting Murray v. United States (1988) 487 U.S. 533, 541, the Calhoun court noted that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied; the court held: The Government did not profit from the illegal search because the sweep did not yield incriminating evidence. Calhouns consent, like the search warrants in Murray and [Segura v. United States (1984) 468 U.S. 796], was not obtained on the basis of any information garnered during the illegal search. (Calhoun, supra, 49 F.3d at p. 234.) The court concluded the trial court had not erred in finding Calhouns consent voluntary, making the subsequent search legal. (Id. at p. 235.)[5]

Similarly, we conclude that substantial evidence supports the trial courts finding that appellants consent was voluntary and that any taint from the illegal sweep was sufficiently attenuated. The court did not err in denying appellants motion to suppress all evidence discovered and seized during the second search.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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[1] Both parties briefs summarized only the preliminary hearing testimony. Although the notice of appeal stated the appeal was taken from both orders denying his motion, the reporters transcript of the renewed motion was not initially made part of the appellate record. (See Cal. Rules of Court, rule 8.320(c)(9)(A).) On our own motion, we ordered the record augmented, and gave the parties an opportunity to file letter briefs addressing the renewed motion. (See Cal. Rules of Court, rule 8.340(c).) Appellant has declined to file either a new statement of facts or an additional brief, because the witness was the same in both proceedings, and appellant claims the testimony was not substantially different. Respondent agreed. As we found some differences, we shall summarize the preliminary hearing testimony first, adding testimony on the renewed motion to the extent it adds new facts or understanding. (See generally People v. McDonald (2006) 137 Cal.App.4th 521, 529; People v. Superior Court (Cooper)(2003) 114 Cal.App.4th 713, 717; Pen. Code, 1538.5, subd. (i).)

[2] See Miranda v. Arizona (1966) 384 U.S. 436, 444; People v. Mayfield (1997) 14 Cal.4th 668, 732.)

[3] Later, at trial, Officer Spitz testified that prior to reading the Miranda card, appellant was handcuffed and was not free to leave, but that he was not under formal arrest, and Spitz had no intention of arresting him at the time he asked appellant why he had run, whether he had heard his partner identify himself, and whether there was anything in the house he should know about. Appellant moved to suppress his pre-Miranda statements in response to those questions -- that he heard the officer identify himself, but wanted to get home; that he lived in the house in front of which he was detained; and that he had a shotgun in the house that was not his. The trial court granted the motion as to the pre-Miranda statements, but denied it as to all post-Miranda statements, including appellants consent to search the house.

[4] Spitz drew his gun only as he entered the house to conduct the protective sweep, while Olmos waited outside with appellant and the child.

[5] The court applied the federal clearly erroneous standard -- which is practically the same as the California substantial evidence test. . . . (People v. Alvarez, supra, 14 Cal.4th at p. 196; see also, People v. $47,050 (1993) 17 Cal.App.4th 1319, 1323, fn. 4.)