P. v. Jimenez

Filed 3/6/07 P. v. Jimenez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Jon E. Stuebbe, Judge.

Victor S. Haltom, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.

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After his motion to suppress evidence was denied, appellant pled no contest to possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)). He was sentenced to 16 months imprisonment. He filed a notice of appeal specifying that the sole ground for appeal was the denial of his motion to suppress evidence. (Pen. Code,  1538.5, subd. (m).) We conclude that the motion to suppress was properly denied and therefore affirm the judgment below.

FACTS

The pertinent facts are not in dispute.^[1] On January 27, 2006, Maria Solis made a 911 call reporting that her daughter and her daughters boyfriend, appellant herein, were in their house using and dealing drugs and that her daughters 12-year-old son was present in the house with them. She stated that appellant had warrants outstanding for his arrest and that he needed to be put away.

Officers of the Kern County Sheriffs Department were dispatched to the residence of appellant and Ms. Soliss daughter. After the officers arrived they walked up to a bedroom window that was approximately 10 feet away from the front door of the house. The window had blinds that were partially open. The officer testified that the blinds were almost closed and that only the bottom three to five inches of the window were not blocked by the blinds. One officer walked up to the window and was able to see through the bedroom window by positioning himself within a foot of it. As he looked into the home through the window, he observed appellant rolling a cigarette, placing what appeared to be a controlled substance on the cigarette, smoking it and sharing it with his girlfriend. The officer testified that appellant displayed objective symptoms of PCP intoxication which he described. Another officer went to the front door, knocked and announced his presence. Ms. Soliss daughter came to the door and, according to the officer, her muscle tone appeared to be extremely rigid, her eyes were glossy and she was walking in a stiff and robotic manner. She was asked some basic questions which she was unable to answer. The officer then entered the residence and placed Ms. Soliss daughter in handcuffs. Appellant then entered the room. He was also placed in handcuffs. One of the officers seized a clear plastic bag from appellants sock which contained a crystalline-type substance which the officers believed to be PCP. They searched the residence and found no children. The parties stipulated that the controlled substance seized from appellant was methamphetamine.^[2] The officers did not have a search warrant.

CONTENTIONS

Appellant contends that the officers peering through the window constituted a search within the meaning of the Fourth Amendment, that the search was unreasonable because it was conducted without a warrant and that exigent circumstances did not excuse the failure to obtain a search warrant. Respondent argues that the officers conduct in looking through the window was not a search, that if it was a search, it was reasonable and that exigent circumstances were present.

DISCUSSION

An observation made by a law enforcement officer constitutes a search within the meaning of the fourth amendment when an expectation of privacy that societys prepared to consider reasonable is infringed. (United States v. Jacobsen (1984) 466 U.S. 109, 113; Illinois v. Andreas (1983) 463 U.S. 765, 771.) Private residences are places in which the individual normally expects privacy free from governmental intrusion not authorized by a warrant. (United States v. Karo (1984) 468 U.S. 705, 714.) However, this expectation of privacy in the home must be balanced against the need for effective law enforcement.

The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officers observations from a public vantage point where he has a right to be and which renders the activities clearly visible. [Citation.] What a person knowingly exposes to the public, even in his own home ..., is not a subject of Fourth Amendment protection. (California v. Ciraolo (1986) 476 U.S. 207, 213, quoting Katz v. United States (1967) 389 U.S. 347, 351; People v. Camacho (2000) 23 Cal.4th 824, 831.)

Police officers observations do not constitute a search within the meaning of the Fourth Amendment if the officers were standing in a place where they otherwise had a right to be. (People v. Camacho, supra, 23 Cal.4th at pp. 831-832; California v. Ciraolo, supra, 476 U.S. at p. 213.)

There are several reported cases validating and invalidating police officer warrantless searches resulting from peering through residential windows. (People v. King (1965) 234 Cal.App.2d 423 [officers warrantless search through a window adjacent to the front door where blind was drawn but there was an opening of approximately one and one-half to two inches in width determined to be reasonable]; People v. Berutko (1969) 71 Cal.2d 84 [court affirms the correctness of the holding in People v. King, supra; where officers went to front of apartment and peered through an aperture and observed narcotics, search determined to be reasonable]; Lorenzana v. Superior Court (1973) 9 Cal.3d 626 [investigating officer who entered side yard of residence and observed evidence of drug dealing through two-inch gap between curtains and windowsill committed unreasonable search]; People v. Camacho, supra, 23 Cal.4th at p. 831 [officers observation through side yard window of house was unreasonable search].)

An otherwise warrantless, unreasonable search may nonetheless comply with the Fourth Amendment if the people establish that exigent circumstances justified the search. (People v. Coddington (2000) 23 Cal.4th 529.) In the instant case appellant contends that no exigent circumstances existed. Respondent argues that exigent circumstances existed due to considerations for the safety and welfare of the 12-year-old who was reportedly in the house while drugs were being used. When the officers arrived, no child was found in the residence, however, the 911 call reported that there was a 12‑year-old in the residence at the time the callers daughter and boyfriend were ingesting drugs in the same residence

Appellant contends that since there was no evidence of any imminent danger to the purportedly present child, and that there was no evidence that PCP was being used in the immediate vicinity of the purportedly present child, there was no exigent circumstance. We disagree.

Welfare and Institutions Code section 305 provides in relevant part:

Any peace officer may, without a warrant, take into temporary custody a minor;

(a) When the officer has reasonable cause for believing that the minor is a person described in Section 300 and, in addition, that the minor has an immediate need for medical care, or the minor is in immediate danger of physical of sexual abuse, or the physical environment or the fact that the child is left unattended poses an immediate threat to the childs health or safety .... (Emphasis added.)

Section 300 provides in relevant part:

Any child that comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [] ... []

(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child ... or by the inability of the parent or guardian to provide regular care for the child due to the parent or the guardians mental illness, developmental disability, or substance abuse .... (Emphasis added.)

Thus, the Legislature has codified the states strong interest in protecting the health and safety of children whose parents or guardians are willfully or negligently neglecting the childs welfare due to, among other things, substance abuse. Where an officer has a reasonable cause for believing that a minor is at risk due to his parents or guardians substance abuse, section 305 authorizes the officer to take the child into custody without a warrant.

The 911 call gave these officers probable cause to believe that a minor was in a residence with two adults that were ingesting PCP. That information created an exigent circumstance justifying a warrantless search of the residence for the protection of the child. The fact that the child was not in the residence when the officers entered the residence does not negate the presence of probable cause to believe that the childs welfare was at risk at the time of the search. We reject appellants argument that exigent circumstances were not shown because there was no evidence of any imminent danger to the purportedly present child, and because there was no evidence that PCP was being used in the immediate vicinity of the purportedly present child. Appellant cites no law that defines exigent circumstances so narrowly. When it comes to protecting the safety and welfare of children, exigent circumstances must be defined more broadly that appellant advocates. The Legislature had declared that:

The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child. (Welf. & Inst. Code  300.2.)

In the context of this case exigent circumstances were shown.

The motion to suppress was properly denied.

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Wiseman J., and Kane, J.

^[1] The facts are taken from the testimony given at the motion to suppress/preliminary hearing held on February 28, 2006.

^[2] In her 911 call Ms. Solis indicated that her daughter and her boyfriend were using PCP.