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THE PEOPLE v. TATIANA SMITH

November 29, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TATIANA SMITH, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Gary E. Daigh and Gary R. Hahn, Judges. Affirmed as modified. (Los Angeles County Super. Ct. No. TA106892)

The opinion of the court was delivered by: Turner, P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

I. INTRODUCTION

Defendant, Tatiana Smith, appeals following her nolo contendere plea to a marijuana possession for sale charge. (Health and Saf. Code, § 11359.) Defendant's sole contention on appeal is her Penal Code section 1538.5 suppression of evidence motion was improperly denied. In the published portion of the opinion, we discuss the propriety of the search of defendant's apartment. We conclude the two police officers and a deputy probation officer acted reasonably while searching her apartment. We affirm the judgment with minor sentencing modifications.

II. THE SUPPRESSION OF EVIDENCE MOTION HEARING

At approximately 6 a.m. on June 4, 2009, Los Angeles Police Officers Timothy Pearce and Daniel Pierce and a Los Angeles County Probation Officer, Alfred Burruel, were conducting a series of probation and parole compliance checks in the Jordan Downs housing development. The officers and Mr. Burruel were members of the L.A. Saves Probation-Parole Task Force. The officers and Mr. Burruel were conducting a probation compliance check on Tyrell Jones, who they believed resided at 9708 South Laurel Place, apartment No. 5. The officers knew that Mr. Jones was on probation and was subject to search and seizure conditions. Mr. Jones's driver's license indicated he lived at 9708 South Laurel Place, apartment No. 5. A field interview card completed on January 26, 2009, listed Mr. Jones's address as 9708 South Laurel Place, apartment No. 5. The field interview card was filled out in the vicinity of the South Laurel Place apartment. Although Mr. Jones had been discharged from parole, he remained on probation. Prior to being discharged from parole, Mr. Jones had given the listed South Laurel Place apartment as his residence address. In other words, defendant had supplied the South Laurel Place apartment address to the Department of Motor Vehicles, a Los Angeles police officer when the January 26, 2009 field identification card was prepared, and a parole officer. As of December 29, 2008, Mr. Jones had given two different addresses to the probation department. On December 29, 2008, Mr. Jones listed his address with the probation department as 10141 Beach Street in the City of Los Angeles. The other address he had provided as of December 29, 2008, was 723 West Corregidor on the City of Compton. Mr. Jones was placed on probation on October 26, 2007, for domestic violence in case No. TA093035. The victim was defendant and Mr. Jones was ordered to stay away from her.

At 6 a.m., when the officers and Mr. Burruel arrived at the South Laurel Place address, Officer Pearce saw defendant through a window next to the front door. The curtains were open. Defendant appeared to be asleep on a couch. Officer Pearce spoke to defendant through the window. Officer Pearce told defendant that they were present to do a compliance check on Mr. Jones. Defendant said Mr. Jones was not present. Defendant said that Mr. Jones did not live in the apartment. Officer Pearce said, "Well, we'd like to check." Defendant said: "Hold on. Let me get dressed." Officer Pearce saw that defendant was wearing a tank top and dark pants. Defendant left the room and walked out of Officer Pearce's sight towards the back of the apartment.

Thereafter, Officer Pearce heard a noise in what he believed to be the kitchen area of the lower floor. The noise sounded like dishes being moved and a clothes dryer being started. The dryer made a noise as though metal was banging around inside it. Officer Pearce testified the noise was very loud. The noise began only after defendant walked from the front room to the rear of the apartment while Officer Pearce and the others waited outside.

Defendant then opened the door and stepped aside. According to Mr. Burruel, defendant did not block the door in any way. Officer Pearce repeated, "Look, we're just here to check, make sure [Mr. Jones is] not [here]." Defendant responded: "You can check, but [Mr. Jones is] not here. . . . Just me and my kids and my brother."

After entering the apartment, Officer Pearce walked into the kitchen, where the dryer was making the loud noise. Mr. Burruel testified that upon entering the residence, he could smell fresh marijuana. As Officer Pearce walked towards the kitchen, he testified the smell of marijuana became stronger. The smell of marijuana was strongest in the kitchen. Officer Pearce smelled the odor of fresh marijuana and saw a shoebox filled with cash and "one-by-one" individual plastic baggies. The baggies were similar to the ones often used to package marijuana. Without requesting permission, Officer Pierce opened the dryer door for the sole reason of turning it off. The noise from the dryer "inhibited" the officers from communicating with anybody who was upstairs. Officer Pearce testified, "We still had one male upstairs, according to [defendant] that we needed to call down." Officer Pearce testified that the officers wanted to call down the person who was upstairs out of concern for their safety rather than for them to walk upstairs. The officers wanted to determine the identity of the individual who remained upstairs. It ultimately turned out that defendant's brother in fact was upstairs as she had said.

When Officer Pierce opened the dryer door, Officer Pearce could see a package of marijuana wrapped in cellophane. In addition, there was change in the dryer along with a "Hello Kitty" bag which contained 22 small 1-inch by 1-inch Ziploc baggies stuffed with marijuana. Defendant admitted the marijuana belonged to her. Defendant was not handcuffed until she was placed in the police car.

III. DISCUSSION

A. Suppression of Evidence Motion

Defendant contends the discovery of the marijuana in the dryer resulted from an invalid consent to search. And defendant contends that, even if she gave the officers and Mr. Burruel permission to search for Mr. Jones, they exceeded the scope of her consent when Officer Pierce ...


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