Filed 11/21/17 P. v. Krueger CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER GEORGE KRUEGER,

Defendant and Appellant.


G053209

(Super. Ct. No. 13HF3581)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Karen
L. Robinson, Judge. Affirmed.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Christopher Krueger was convicted of possessing drugs and paraphernalia the police found in his bedroom during a probation search for his former girlfriend. On appeal, he contends the contraband was unlawfully seized, and his admissions to the police were involuntarily rendered. The Attorney General disagrees with these claims and maintains appellant should not even be allowed to raise them because he did not renew his suppression motion in the trial court. While we reject the Attorney General’s forfeiture argument, we agree with her on the merits and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to the preliminary hearing, appellant filed a motion to suppress the evidence found in his bedroom on the basis it was seized in violation of his Fourth Amendment rights. (Pen. Code, § 1538.5.) The motion was litigated in conjunction with the preliminary hearing and unfolded as follows:
Kasey Marshall testified that early one morning, he and four other Orange County Sheriff’s Deputies went to appellant’s house in Lake Forest to conduct a “probation check” on Amber Samuelson. The deputies knocked on the front door, and when appellant answered, Marshall told him they were looking for Samuelson. Appellant said Samuelson was his ex-girlfriend and no longer lived at the house. Nevertheless, Marshall asked if they could go inside and check to see if she was there. Appellant said yes.
With that, the deputies entered the residence and began looking for Samuelson. The first bedroom they entered contained women’s clothing and letters addressed to Samuelson, but she was not in the room. Nor was she in the second bedroom they searched or any of the common areas of the house. When the deputies got to the third and final bedroom in the house, they noticed the door was locked. That prompted Marshall to contact appellant, who was being detained in the living room. Marshall asked appellant to unlock the door, but he was reluctant to do so. While admitting the bedroom was his, appellant insisted there was no need to search it because Samuelson was not inside. Marshall told appellant his team just wanted to do a quick check of the room, and if Samuelson was not there, they would leave. At that point, appellant opened the door with a butter knife he retrieved from the kitchen.
Inside the room, there were no signs of Samuelson. However, in plain view on and by appellant’s bed, Marshall found numerous smoking pipes, one of which contained one-eighth gram of methamphetamine. This discovery occurred about two minutes after the deputies initially entered the house.
Marshall brought the pipes out to the living room and showed them to appellant. When he told appellant he found them right out in the open by his bed, appellant became agitated and called him a liar. Appellant insisted the pipes could not have been in plain view because he hid them under a blanket before answering the door. Marshall told appellant to relax, and eventually he calmed down and admitted the pipes were his. He also admitted he smoked methamphetamine.
Appellant’s testimony was different. He said he never gave the deputies permission to enter his home, and the only reason he unlocked his bedroom door is that Marshall threatened to arrest him and kick the door down if he refused to open it. Defendant also claimed there were actually about a dozen deputies in his house, and the search took a lot longer than Marshall claimed it did.
Following appellant’s testimony, the court entertained arguments on the motion to suppress. Defense counsel told the court “the issue is one of consent.” Relying on appellant’s testimony, he argued the deputies did not have consent to enter appellant’s home, and appellant’s consent to enter his bedroom was vitiated by Marshall’s threats. Alternatively, defense counsel postulated that even if Marshall did not make any threats, appellant’s consent to enter his bedroom was involuntary because he was reluctant to give it and was being detained at the time. In other words, the circumstances were so coercive appellant really did not have any other choice but to let the deputies into his bedroom.
In ruling on the motion, the court rejected appellant’s testimony as incredible. Adopting Marshall’s version of events, the court determined appellant voluntarily consented to let the deputies into his house and his bedroom, and once inside, they had the right to seize the pipes and methamphetamine because they were in plain view. It therefore denied appellant’s motion and bound him over to superior court for trial.
Before trial, appellant moved to exclude his admissions to Marshall on the basis they were involuntarily rendered. To resolve that issue, the court conducted an Evidence Code section 402 hearing at which Marshall testified. Consistent with his preliminary hearing testimony, Marshall stated that after he found the pipes and methamphetamine in appellant’s bedroom, he brought them out into the living room and spoke to appellant. At that time, appellant was being detained and not free to leave. However, he was not in custody, handcuffed or physically restrained; he was simply being guarded by a member of the search team. When Marshall showed appellant the pipes, he got “a little belligerent” and disputed Marshall’s claim about finding them in plain view. However, once appellant settled down, he admitted the pipes were his and that he smoked methamphetamine. During this exchange, which lasted about a minute, Marshall never threatened appellant or made any promises to him. Nor did he touch appellant or have his gun drawn. In fact, although all of the deputies in the house were armed, none of them unholstered their guns during the search.
In cross-examining Marshall, defense counsel not only asked him about the circumstances surrounding appellant’s admissions – i.e., the exchange that took place in the living room after Marshall showed him the pipes – but also questioned him about how his team entered the house and appellant’s bedroom. Defense counsel argued those issues were relevant because if appellant did not consent to letting the deputies into his house and bedroom, then that would prove his back was “against the wall” and that his admissions were not the product of his own free will.
The trial court acknowledged the dual nature of defense counsel’s argument. Even though appellant did not formally renew his section 1538.5 motion in conjunction with his current motion, the court recognized there was some overlap between the two. In particular, the court stated that whether appellant freely consented to let the deputies into his house and into his bedroom had a logical bearing on whether his admissions to Marshall were voluntary. Therefore, out of “an abundance of caution,” the court revisited the consent issues raised in appellant’s section 1538.5 motion.
Based on Marshall’s testimony at the preliminary hearing and the Evidence Code section 402 hearing, the trial court ruled the deputies’ actions in entering appellant’s house and searching his bedroom were constitutional because appellant consented to them. In so ruling, the court remarked, “I don’t believe that there was a violation of the Fourth Amendment[,]” “[s]o that takes care of the sort of 1538.5 arguments that the court heard just now.” As to the issue of whether appellant’s admissions were otherwise involuntary, the court found “there is simply no evidence of coercive police activity.” It therefore denied appellant’s motion to suppress his admissions, and the matter proceeded to trial.
After the evidentiary phase of the trial, the court met with counsel outside the presence of the jury to discuss various matters. At that time, defense counsel said he wanted to make a record regarding the issues presented in his section 1538.5 motion. Defense counsel explained the reason he did not object at trial to the evidence targeted in that motion is because the trial court had informed him it was not necessary to do so in order to preserve the record for appeal. The trial court acknowledged defense counsel’s concern. It assured him there was no need to formally renew his section 1538.5 motion at trial because the issues involved in that motion were addressed at the Evidence Code section 402 hearing. Under these circumstances, the court stated, defense counsel’s failure to object at trial would not preclude appellant from challenging the denial of his section 1538.5 motion on appeal. The prosecutor did not contend otherwise.
Ultimately, the jury convicted appellant of possessing methamphetamine and drug paraphernalia. The court suspended imposition of sentence and placed him on probation.
DISCUSSION
This appeal raises three issues: 1) Did appellant forfeit his right to challenge the denial of his section 1538.5 motion on appeal? 2) Assuming no forfeiture, was the motion properly denied? and 3) Did the trial court err in finding appellant’s statements to Deputy Marshall were voluntarily rendered? We will address these issues in turn.
Forfeiture
The Attorney General claims appellant forfeited his right to raise the issues in his section 1538.5 motion because he did not renew the motion in the trial court. We disagree.
The procedures respecting a motion to suppress evidence obtained as a result of an illegal search or seizure are set for in section 1538.5. Subdivision (m) of that section states, “Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence.” (§ 1538.5, subd. (m).) Here, appellant made a motion to suppress at the preliminary hearing, which obviously was “prior to conviction.” However, our Supreme Court has interpreted section 1538.5, subdivision (m) “to require that the matter [involved in a suppression motion] be raised in the superior court to preserve the point for review on appeal, for it would be wholly inappropriate to reverse a superior court’s judgment for error it did not commit and that was never called to its attention.” (People v. Lilienthal (1978) 22 Cal.3d 891, 896.) Consequently, appellate review is only permitted in cases where the search and seizure issues were presented “at some point after the preliminary proceedings before the magistrate[.]” (People v. Richardson (2007) 156 Cal.App.4th 574, 584–585.)
Respondent is correct that appellant did not formally renew his section 1538.5 motion in the trial court. However, it is clear the issues involved in that motion were presented to the trial court when it considered appellant’s subsequent motion to exclude his statements as being involuntary. In fact, the trial court recognized as much when it decided the subsequent motion. Viewing the section 1538.5 issues as an integral part of appellant’s voluntariness claim, the trial court addressed those issues on their merits before deciding whether appellant’s admissions were voluntarily made. Therefore, as the trial court later explained to defense counsel, the issues contained in his section 1538.5 motion were properly preserved for appeal.
Search and Seizure Issues
On the merits, appellant contends the trial court erred in denying his section 1538.5 motion because he was unlawfully detained when the deputies searched his home, and he did not voluntarily consent to the search of his bedroom. We find these arguments unavailing.
On review of a section 1538.5 motion, we view the facts in the light most favorable to the lower court’s ruling. (People v. Tully (2012) 54 Cal.4th 952, 979.) While we must defer to the lower court’s factual and credibility findings, we exercise our independent judgment in deciding the legal issues presented. (Ibid.) Guided by this standard, we will assess the legality of the deputies’ actions based on the testimony provided by Deputy Marshall, whom the lower court found to be credible.
Appellant concedes the deputies had the right to detain him when they initially entered his house and were searching the areas over which Samuelson could reasonably be expected to exercise control. (People v. Matelski (2000) 82 Cal.App.4th 837; People v. Hannah (1996) 51 Cal.App.4th 1335, 1345-1346.) However, he maintains that by the time the deputies got to his locked bedroom, about a minute later, they no longer had a legitimate reason to detain him. Therefore, when they asked for his consent to search the bedroom, any purported consent he gave was the fruit of an unduly prolonged detention.
Although we rejected the Attorney General’s forfeiture claim in the previous section, she is correct that appellant forfeited this particular argument by failing to raise it below. In arguing the suppression motion issues at the preliminary hearing and before trial, defense counsel did bring up the fact appellant was detained when Marshall asked for permission to search his bedroom. However, he did so for the limited purpose of establishing the circumstances under which appellant gave his consent. It was defense counsel’s position that appellant’s detention, along with the other circumstances presented, created a coercive environment that affected the validity of his consent to search. But at no point did defense counsel contend, as appellant does here, that the detention was itself illegal because it was unduly prolonged. In fact, defense counsel never questioned the underlying legality of appellant’s detention in any respect. Therefore, that issue is not cognizable on appeal. (People v. Williams (1999) 20 Cal.4th 119, 130 [to preserve a Fourth Amendment issue for appeal, the defendant must specify in the trial court “the precise grounds for suppression of the evidence in question”].)
Even assuming otherwise, the contention lacks merit. When the deputies first talked to appellant at his home, he told them Samuelson was his former girlfriend and no longer lived there. But in the first bedroom they searched they found women’s clothing and letters addressed to Samuelson. Under these circumstances, it was not unreasonable for the deputies to believe appellant was lying to them and that Samuelson might be hiding in appellant’s bedroom. Therefore, until the deputies searched all the rooms in the house, they had a reasonable justification to detain appellant. (See United States v. Sharpe (1985) 470 U.S. 675, 686 [a detention may be extended to allow the police to pursue their investigation in a diligent manner that is likely to confirm or dispel their suspicions].) Appellant’s fruit-of-the-poisonous-tree argument simply does not hold up on the facts of the case.
Alternatively, appellant argues he did not freely and voluntarily consent to the search of his locked bedroom. (See Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227 [whether consent was voluntary or was the product of coercion on the part of searching officers is a question of fact to be determined from the totality of the circumstances].) In so arguing, appellant emphasizes he was hesitant to let the deputies into his bedroom and only agreed to do so after Marshall promised they would leave if Samuelson was not in there. He also points out that Marshall failed to keep that promise. However, no reasonable person would expect the police to turn a blind eye to evidence of a crime, which is what Marshall saw in plain view when he entered appellant’s bedroom.
Moreover, although appellant contends the circumstances were coercive, the deputies were only in his house for about a minute when they sought his consent to search the bedroom. While it is true appellant was being detained at that time, the detention amounted to a member of the search team standing by him in the living room. Appellant was never threatened, handcuffed or physically restrained, nor were there any other circumstances present that would suggest his consent was involuntary. Therefore, we reject his claim that it was.
The Admissibility of Appellant’s Statements
Lastly, appellant challenges the trial court’s decision to admit into evidence his incriminating statements to Deputy Marshall about owning the pipes and smoking methamphetamine. Appellant contends he was coerced to make these statements, rendering them involuntary and inadmissible under the due process clause. We disagree and uphold the trial court’s ruling.
“‘“The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were ‘such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined.’ [Citation.]” [Citation.] In determining whether or not an accused’s will was overborne, “an examination must be made of ‘all the surrounding circumstances – both the characteristics of the accused and the details of the interrogation.’ [Citation.]” [Citation.]’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 404; accord, Colorado v. Connelly (1986) 479 U.S. 157.)
When Deputy Marshall first showed appellant the pipes he found, appellant got worked up and called Marshall a liar because he did not believe Marshall’s claim the pipes were plainly visible in his bedroom. However, when Marshall told appellant to calm down, he did so, and that is when he made his admissions. Thus, the admissions were not the product of a heated dispute between appellant and the police. Appellant was being detained and in the general company of five sheriff’s deputies. However, as we have explained, appellant’s detention was lawful, and it appears only two deputies (Marshall and the deputy assigned to watch appellant) were in his immediate vicinity when he made his admissions. These circumstances were not such as to compel a conclusion the statement was involuntary.
As for the details of the interrogation, the record is unclear whether appellant spontaneously made his admissions or whether he made them in response to an accusation or insinuation by Marshall that the pipes were his. Either way, it would not alter our conclusion the totality of the circumstances were conducive to a voluntary admission. Appellant may have been under stress when the deputies detained him, searched his house, and showed him the pipes they found in his bedroom, but all of those actions were lawful under the circumstances presented. At bottom, we are simply not convinced appellant’s admissions were, as he claims “a result of coercion by law enforcement[.]” Rather, we believe his admissions were voluntarily rendered in compliance with the tenets of due process. Accordingly, the trial court properly denied his motion to suppress them.
DISPOSITION
The judgment is affirmed.



BEDSWORTH, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.