Filed 9/10/18 P. v. Edgar CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.

Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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In an information filed on August 21, 2015, defendant/appellant Terrance Edgar was charged with conspiracy to violate Penal Code section 29800, subdivision (a)(1)[1] (count 1; § 182, subd. (a)(1)); possession of a firearm in violation of section 29800, subdivision (a)(1) (count 2); active participation in a criminal street gang (count 3; § 186.22, subd. (a)); possession of ammunition by a felon (count 4; § 30305, subd. (a)(1)); possession of a controlled substance for purpose of sale (count 5; Health & Saf. Code, § 11378); unlawful possession of more than 28.5 grams of marijuana (count 6; Health & Saf. Code, § 11357, subd. (c)); and unlawful possession of drug paraphernalia (count 7; Health & Saf. Code, § 11364).[2] The information alleged that defendant committed counts 1, 2, and 4, for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) The information alleged, as to counts 1 through 5, that defendant had suffered to prior “strike” convictions on January 17, 2003, and February 27, 1997 (§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)) As to counts 1 through 4, the information alleged those same convictions constituted prior serious felonies under section 667, subdivision (a). Finally, the information alleged that in the commission of count 2, “the defendant was armed with a deadly weapon.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)

Defendant pled not guilty to all charges, and subsequently filed a pretrial motion to suppress evidence. Defendant also joined in a motion filed by codefendant Terry to compel disclosure of the identity and whereabouts of a confidential informant. The court denied both motions.

Defendant eventually pled no contest to counts 2 and 5 on the condition that the court grant his Romero[3] motion and he receive a stipulated sentence of nine years. Defendant also reserved the right to appeal the rulings on the motion to suppress evidence and the motion to disclose the confidential informant. The district attorney dismissed counts 1, 3, 4, 6, and 7, and several allegations attached to count 2, on the condition that defendant’s plea remain in effect.

The court granted defendant’s Romero motion and sentenced him to six years on count 2, plus three years for the gang enhancement, for a total fixed term of nine years. The court sentenced defendant to a concurrent term of six years on count 5.

Defendant filed a notice of appeal, and the superior court granted a certificate of probable cause.

FACTS

A confidential informant told police that defendant and Terry sold methamphetamine from their residence. Within 10 days, law enforcement sought and obtained a search warrant. The warrant authorized search of defendant and Terry themselves, as well as their residence on Mitchell Avenue in Bakersfield and vehicles on the property or in its immediate vicinity.

Sheriff’s Deputy Diehm surveilled defendant’s residence at around 8:00 p.m. on February 13, 2015. Diehm saw Terry leave the residence at about 8:13 p.m. Other officers subsequently detained Terry, as Diehm continued to surveil the residence. At some point, law enforcement decided to use a “ruse” to get defendant out of the residence. Diehm became aware that other officers planned to call defendant and have him “meet” Terry.[4]

“Several minutes” after 8:13 p.m., defendant left the residence and was subsequently detained via traffic stop. Both defendant and Terry were eventually transported back to the residence in a patrol vehicle. Unbeknownst to defendant and Terry, officers had set up a recording device in the patrol vehicle. Before officers transported defendant and Terry back to the house, defendant told Terry “they” had searched his vehicle, “pulled all my shit out of my pockets” and were “going through” his phone. After defendant said those things, an officer told them, “We’re going back to your house.”

Officers transported defendant and Terry back to the house. Officers secured the residence, which “took a couple minutes, several minutes.” Deputies then began to conduct searches of the residence, so Deputy Diehm returned to the patrol vehicle and separately Mirandized[5] and “interview[ed]” defendant and Terry for about five or 10 minutes.[6] Defendant and Terry were then “put back in the vehicle” while law enforcement searched the residence. Defendant and Terry proceeded to make several incriminating statements.[7]

The recording lasted 2 hours 13 minutes and 7 seconds. Deputy Diehm testified defendant and Terry had been detained in the patrol vehicle for “at least two hours.”

Deputy Diehm testified the purpose of detaining defendant had been to safely execute the search warrant, given defendant’s “very violent past.” Diehm did not observe defendant commit any crimes during surveillance that night.

In their search, officers found a .45-caliber handgun, one hundred .45-caliber rounds, 65 shotgun shells, two boxes of .22-caliber rounds, methamphetamine (totaling around 17 grams), approximately 148 grams of marijuana, and drug paraphernalia.

DISCUSSION

1. The Court Erred in Denying Defendant’s Motion to Suppress the Recordings of Defendant’s Conversation with Terry in the Back of the Patrol Car

Defendant argues the court erred in denying his motion to suppress the recordings of his conversation in the patrol vehicle. First, he argues that he had a reasonable expectation of privacy in his “communications” with Terry “in a police car while the warrant was being executed at their home.”[8] We disagree. He also argues that his detention in the patrol car was improper under Bailey v. United States (2013) 568 U.S. 186, 199 (Bailey), and that improper detention led to the police being able to record his conversations. We agree with this contention and reverse the judgment.

1. Any Expectation of Privacy Defendant May Have Had in his Conversation with Terry in the Back of the Patrol Car was not Objectively Reasonable

Defendant argues he had a reasonable expectation of privacy in his conversation with Terry in the back of the patrol car. We disagree.

1. Law

“When an individual ‘seeks to preserve something as private,’ and his expectation of privacy is ‘one that society is prepared to recognize as reasonable,’ ” then a warrant is generally required before law enforcement may intrude into that private sphere. (Carpenter v. United States (2018) ___ U.S. ___ [138 S.Ct 2206, 2213].) Thus, “the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” (Smith v. Maryland (1979) 442 U.S. 735, 740.)

2. Application

Quite simply, it is not reasonable for a detainee to expect that his conversations in the back of a police officer’s patrol vehicle are private from the government. (See People v. Williams (1982) 128 Cal.App.3d 981, 986–987; People v. Jardine (1981) 116 Cal.App.3d 907, 914, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 1158, 1167; People v. Newton (1974) 42 Cal.App.3d 292, 296; People v. Todd (1972) 26 Cal.App.3d 15, 17.)

Defendant says that he had a reasonable expectation of privacy in his “privileged communications” with his wife.[9] Certainly, many conversations between a married couple are private. However, whether it is reasonable to expect a conversation will remain private depends on several factors, not just the identity of the speakers. Three other factors – important in both real estate and privacy – are location, location, location.[10] While a married couple would reasonably expect conversations in their home to remain private, it would be unreasonable to expect those same conversations would remain private at a crowded sporting event. Or, a married couple may well have an expectation that the conversations they have in their own vehicle will remain private. But that expectation is less realistic in a friend’s vehicle, lesser still in a taxicab, and it vanishes altogether in the back of a patrol car.

In sum, defendant had no reasonable expectation that statements made in the back of a patrol car would be private from the government, even if those statements were made to his wife.

2. Detaining Defendant After the Initial Stop and Search of his Person in Order to Transport him Back to his Home and Keep him in the Patrol Vehicle During the Search of his Home was Unlawful

Defendant argues his detention unlawful under Bailey, supra, 568 U.S. at p. 199. We agree.

1. Law

“[A] warrant to search for contraband … implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” (Michigan v. Summers (1981) 452 U.S. 692, 705, fns. omitted.) However, the “categorical authority to detain incident to the execution of a search warrant [is] limited to the immediate vicinity of the premises to be searched.” (Bailey, supra, 568 U.S. at p. 199.) Thus, law enforcement cannot detain someone away from their home simply because a search warrant is being executed on the home. (Ibid.)

In Bailey, officers observed a man leave an apartment in a vehicle. A law enforcement search team executed a search warrant at the apartment. Other officers tailed the vehicle that had left the apartment. When the vehicle stopped “about a mile” from the apartment, detectives ordered the occupants out of the car and told them they were being “detained incident to the execution of a search warrant” at the apartment. (Bailey, supra, 568 U.S. at pp. 190–191.) The Supreme Court held that this detention was not justified by the search of the apartment because the vehicle’s occupants were not in the “immediate vicinity” of the apartment.

2. Analysis

The Attorney General addresses Bailey only briefly, pointing to the fact that the warrant here authorized a search of defendant’s person. That is, “the search provided the justification for the seizure of appellant and Terry when it authorized searching them.”

It is true that a warrant may authorize the search of a person, and officers may detain that person for the purposes of searching them. (Lohman v. Superior Court (1977) 69 Cal.App.3d 894, 903.) However, law enforcement’s authority to detain someone lasts only as long as the underlying justification remains in effect. (E.g., Harman v. Pollock (10th Cir. 2009) 586 F.3d 1254, 1262.) Here, officers initiated a traffic stop of defendant some distance from his house and searched him. They were clearly entitled to do so, because the warrant authorized searching defendant’s person.

However, when the search of defendant’s person was completed, that particular justification for his detention ended. Yet, defendant’s detention continued well beyond that point. After the search of his person was completed, defendant was then transported to his home and kept handcuffed in the back of a patrol car for more than two hours while law enforcement searched his home. This span of the detention cannot be justified pursuant to the search of defendant’s person, because that search had been completed. Instead, officers justified this continued detention based on the search of defendant’s home pursuant to the warrant. However, that justification for detaining defendant was not available under Bailey.[11] The “categorical authority to detain incident to the execution of a search warrant [is] limited to the immediate vicinity of the premises to be searched.”[12] (Bailey, supra, 568 U.S. at p. 199.) Officers may not detain a defendant away from a residence (even only a mile away) on the grounds it is necessary to preserve officer safety during the execution of a search warrant at the residence. (Ibid.) Here, the People did not show defendant was in the immediate vicinity of his home when he was stopped, searched, and transported back to the home.[13]

Because law enforcement’s ability to obtain evidence of defendant’s statements in the back of the patrol car was a direct result of his unlawful detention, the evidence must be suppressed.

“Because it is impossible to assess the impact of an erroneous denial of a motion to suppress evidence on a defendant's decision to plead guilty, the harmless error rule is inapplicable in appeals taken pursuant to Penal Code section 1538.5, subdivision (m). [Citations.] Therefore, defendant must be afforded the opportunity to withdraw his plea, in which case the People are free to reinstate the original charges.”[14] (People v. Ruggles (1985) 39 Cal.3d 1, 13.) We note that the Attorney General also believes defendant should be allowed to withdraw his plea, though for different reasons.

DISPOSITION

The judgment is reversed and the cause is remanded. The trial court is directed to vacate its order denying defendant’s suppression motion and enter a new order suppressing the recording of defendant and Terry in the patrol vehicle on February 13, 2015. Defendant may withdraw his guilty plea within 30 days of the finality of this opinion. In that event, on motion of the People, the original charges shall be reinstated and trial or other appropriate disposition shall proceed in accordance with the views expressed in this opinion. If defendant does not elect to withdraw his plea of guilty, the superior court shall reinstate the judgment.

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POOCHIGIAN, J.

WE CONCUR:

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LEVY, Acting P.J.

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SNAUFFER, J.